United States v. Hattie Charles, 1929, 1939-1941

(4 UNIVERSITY ATALBANY M8, nnd Depart of

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AS wo Hathe Charles
Amended bell of fomplaiat

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\ IN THE UNITED STATES DISTRICT COURT
: FOR THE WESTERN DISTRICT NEW YORK

UNITED STATES OF AMERICA

}
Ve by A

HATTIE CHARLES
AMENDED BILL OF COMPLAINT

Now comes the United States of America, complainant
herein, by Gearge L. Grebe, United States Attorney for the Western
District of New York, and, under the direction of the Attorney General
of the United States and at the request of the Secretary of the Interior
of the United States, brings this aetion for and on its own behaif and
for and on behalf end as trustee and guardian of the Tonawanda Band of
the Seneca Nation of Indians and alleges as follows:
z

That at all the times hereinafter mentioned the Seneca, Onondaga, ©
Nohawk, Cayuga, Oneida and Tuscarora Nations have jeintly constituted
the Iroquois Confederacy mom as the Six Nations, and the Tonawanda
Band of Indians has been a separate and distinct tribe of the Seneca
Nation of Indians-net bound by or subject to the charter ef the Seneca
Nation adopted by the Allegany, Cattaraugus and O11 Spring pangs or tribes,

the Tonawanda Band acting under and being governed by its separate
ett Met ac an tO I gi A ge Resse Ni OR AS OAR IO, |

tribal laws and customs. \
PAA Pies esa ii gt ty ee Re pO eS

iI !
That in the preservation of its sovereign rights, in its om
behalf, and in the preservation and protection of the rights of its |
Indian wards and under the supervisory capacity vested in it over the
Indians, it is the duty of the United States to prevent the alienation
of their lands, the dispessession of said Indiens from their tribal lands
and any transfer, conveyance or sale thereof, and this action is brought
in behalf of the Tonawanda Band of Indians for such purposes.
LTE
That at all times herein mentioned the Tonawanda Band of Indians

has maintained its own tribal relations, has kept its tribel affairs and


2.

property separate and distinct from any other tribe or band and from those
of the State of New York and has been and is under the tutelage and
guardianship of the United States.

Iv.
* That said Te da Band of Indiems, as a component part of the
Seneca Nation, one of the Six Nations, is and has been at all times en-

titled te all the rights granted and given by Law or treaty to the said
Six Nations, as well as to all rights granted by any law or treaty te the
seid Tonawanda Band as a separate band. That, for the maintenance of said
tribal relations, the said Tonawanda Band.is, and at all times hereinafter
mentioned was, vested with authority te administer its internal affairs
according to its own tribal laws and customs; and that it is the duty

of the United States, as a governmental function, to insure and preserve

to the said Tonawanda Band the exercise of said authority.

v.
d That while in the occupation and possession of the lands upon which
y they have been domiciled from time immemorial the said Six Nations entered

inte various treaties with the United States, to wit, on October 22, 1784,
at Fort Stanwix, New York; on January 9, 1789, at Fort Harmar, N.¥.3; and
on Nev. 11, 1794, at Canandaigua, N. ¥.3 copies of which treaties are
hereto attached, marked Exhibits "A" "BM" and "C" respectively, and made
a part hereof.

That ail ef said treaties were duly adopted, (retarsea|ana pro-
elaimed by both of the contracting parties and have since seid time been
in full force and effect.

That in said treaties the rights of the said Six Nations and of
each of the members of the separate nations to their several lands,
territories and reservations were recognized, confirmed and guaranteed to
them by the United States.

That in the last mentioned treaty, entered into on Nov. li, 1794,
all prior treaties were confirmed and there were therein recognized all
rights of the Six Nations and of the component parts thereof, including

the Seneca Nation of Indians and the Tonawanda Band of the Seneca Nation,

to land, Wi i 2’ es
the S Occupied by them, which said rights were specif l
ically

3.

granted under the following provision (7 Stat. 45, Art. III):

Now, the United States acknowleZe ail the land within the
aforementioned boundaries, to be the property of the Seneka
nation; and the United States will never claim the same, nor
disturb the Seneka nation, nor any of the Six Nations, oer of
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

ef the United States, who have the right te purchase.

+

<

r
ad That under end by the constitution and laws of said Iroquois Confeder-
a

cy and the laws ef the constituent nations thereof, the several nations of
the said Confederacy and its constituent tribes, hands and members of
Indians, including the Tonawande Band, held and still held their tribal lends
in common and are prohibited from transferring, alienating or disposing
thereof, and that by the laws of the United States the said Six Nations and
each of them are bound and limited against transfer, alienation or disposi-
tion of any tribal lands, or any part thereof, without the concurrence or
consent of the United States, and that the U. S. has not at any time consent-
ed to any elienetion of the lands within the Tonawanda Reservation.
Vit
s That the Lands herein described and known as the lends within the
boundaries ef the Tonawanda Res., and in the protection of which this action
is brought, are part and parcel of the land guaranteed to the use, occupation
and enjoyment of the Tonawanda Indians by all the treaties herein set out
and by further laws and treaties hereinafter set out.
Vit

That on or about the 15th day ef January 1836, a treaty was entered
into between the Six Nations hereinbefore described, and thereafter, on the
llth day of June 1888, said treaty was ratified by the Senate of the U.S.
(7? Stat. 550), in which said Six Nations agreed to convey to Thomas Ludlow
Ogden and Joseph Fellows lands in the State of N. Y., including the lands be-
longing to the Ton. Band of Indians and in the Ten. Res., and in lieu thereof
to accept certain lands in xem other parts of the U.S.

That subsequently and on the 20th day of May 1842, a supplementary
treaty was made and entered into between the said Six Nations and the U.S.
(7 Stat. 588) as a substitute for the said treaty of Jan. 15, 1838, but to
substantially the same effect.

That pursuant to the terms of the last mentioned treaty the lands


4.
owned and occupied by the Tonawanda Band of Indians were conveyed to the
said Thomas Ludlow Ogden and Joseph Fellows, but that the said Ton. Band of
Indians, being dissatisfied with the terms of the treaties made by the Six
Nations of Jan. 15 1838 and May 20, 1842, and refusing to remove therefrom
and accept lends in other parts of the United States in lieu thereof, and
having at no time acted under said treaty or executed the same on their part,
remained in the occupation, enjoyment and possession of all the Lands com-
prising the Ton. Res. and all of the lands herein involved and were never
dispossessed thereof nor their use, enjoyment and occupation disturbed or
interfered with. !

That ss a result of their refusal to be dispossessed of She said lands
within the Ton. Res. and to deliver the possession of the same to the said Og-
den and Fellows, a subsequent treaty was entered into between the U. S. and
the Ton. Band of Indians on the 5th day ef Nov. 1857 amd ratified by the
Senate of the U.S. on Nev. 5, 1857, and supplementary articles of treaty were
entered into between the said parties om Nov. 5, 1857, and ratified by the
Senate of the U.S. on June 4, 1858 (12 Stat. 991), wherein and whereby the
said Ton. Band of Indians waived and relinquished to the U.S. all claim to
any other lands in the U.S., amd the U.S. agreed to purchase from the said
Qgden and Fellows all rights which they claimed to possess under the said
treaties of Jan. 15,1838 and May 20,1842.

That at the time of the making of the said treaty last referred to
separately with the Ton. Band of Indians. they were still in occupation, en-
joyment and use of the said Ton. Res. and had never as a tribe agreed to
give up their rights thereto and had never executed said treaty as to their

land.
That in the said treaty of Nov. 4, 1857, and subsequent treaty of

dune 4, 1858, it was previbd:

ARTICLE III..It.is hereby agreed that the Tog. bend may purchase of
the said Ogden and Fellows, or the survivor them, or of their heirs
or assigns, the entire Ton. res., of such portions thereof as they
may be willing to sell and said band may we willing to purchase; and
the U.S. undertake and agree to pay for the same out of the said sum
of $256,000, upon the express condition that the vate of purchase
shali not exceed, om an average, $20 per acre.

The land so purchased shall be taken by deed of conveyance to the
Seey. of the Interior of the U.S. and his successors in office, in
fee, to be held by him in trust for the said Ton. band of Incians
and their exclusive use, occupation and enjoyment, wntil the legis-
lature of the State of N.¥. shall pass an act designating some
persons, or public officer of that State, to take and heid said land


5. ~ °

upon a similar trust for said Indians; whereupon they shall be
granted by the said Secy. to such persons or public officer.
ARTICLE IV. And the said Ton. band of Indians hereby agree to
surrender, relinquish, and give up to the said Ogden and Fellows, the
survivor of them, or their assigns- provided the whole reservation
shall net be purchased - the unimproved lends which they shall not
purchase, as aforesaid, within thirty days after this treaty shall be
proclaimed by the President of the U. S., and the improved lands which
they shall not purchase, as aforesaid, on the Ist day of Jume, 1859.
That thereafter, as provided by said treaty of Nov. 5, 1857, and sub-
sequent modification, title to the lands comprising the Ton. Res., including
the lands herein described, was taken in the name of the secretary of the
Interior who held the title thereto in trust for the Tonawanda Band of Indians
until Feb. 14, 1862, on which date they were conveyed by deed te the
comptroller of the State of N. Y. in trust and fee for the Tonawanda Indians.
That therein and thereby the continued use, occupation and enjoyment of the
_ said lands within the Ton. Res. were continued in the Ton. Band and stiil

exist.
Ix

That the Senate and Assembly constituting the legislative body of the

State of N. Y. on the 16th day of April, 1860, ratified end confirmed the

said treaty of Nev. 5, 1857, and its supplement, and granted for all time the
Proll use, eccupation and enjoyment of the lands of the Ton. Hes. to the Ton.
g Band of Indians, in the fol. language (Laws of N. Y. (1860), c. 439, p. 762):

Sec. 2,/ The title te said lands, which shall be conveyed to the
comptroller by virtue of this act, shall be held by him and his
successors in office, in trust, for the seid Ton. band of Indians
who shall, by virtue thereof, have and hold the exclusive use,
occupation and enjoyment of the said lands; anything in the actsof
the legislature of this state, defining the purposes for which trusts

_ may be created, to the contrary notwithstanding.

That by reason of the foregoing the State of New York has become obligated

ey to respect and maintain the rights of thé Ton. Indians to all the lands in the

\ Ton. Res. and has no jurisdiction or power to do any act or thing through its
| legislative assembly or by its courts to alienate from the said Ton. Band of
(Inaiens any of the lands in the said Ton. Res.

x.

That during or about the month of June, 1933, Anna Moses, a member of
© seid Ton. Band of Beneca Indians, residing and entitled to reside on the Ton.
Indian Res., died intestate in the possession of certain lend on and a part
of said Res., more particulerly described as follows:

(description)


a 6.

XI.
> That thereafter the said Gertrude Blackchief duly filed with the
al Chiefs! Council of the Ton. Band of Indians, in accordance with the customs
and usages of said tribe, ae petitdon for the purpose of evicting Ir. Charles
and Hattie Charlies, who are adverse claimants to the said Gertrude Bleckchief,

and who claimed heirship which entitled them to the said lands claimed by sai¢

Gertrude Blackchief and in said petition the said Gertrude Blackehief requests

ed the determinstion of the Chiefs! Council in accordance with the laws and

customs of the Ton. Band or Tribe of Indians.

» XIE
ot That thereafter fea before any action was taken upon the said petition

of said Gertrude Blackchief \and on or about the 17th day of March, 1934, the
he proceeding was commenced in the Supreme Court of the Stete of New York in the
name of the People of the State of New York on the relation of said Ira
Cherles and Hattie Charles, by their attorney, Nelson T. Barrett, against
Gertrude Blackchief, the Chiefs! Council of the Ton. Band ef Seneca Indians,
and others, for a writ of prohibition and injunction to restrain and enjein
the seid. Gertrude Blackchief ffom instituting or carrying on any proceedings
in or before the said Chiefs' Council of the Ton. Band of Seneca Indians
and to prohibit and restrain the said Chiefs? Council from entertaining any
action or proceeding or making or issuing any order or decree relating to or

affect the said real property.

&

XIIT.

ae That on or about the 7th day of May, 1934, the said Supreme Court of
@ the State of N. ¥., County of Erie, issued an order efjoining and restraining
& Gertrude Blackchief from instituting or prosecuting any proceeding in or
before the said Chiefs? Council and restraining and prohibiting the said
Chiefs! Council from entertaining, determining, or enforcing any proceeding
in relation te the lands above described, and that said order was served
upon said Chiefs! Council snd upon Gertrude Blackchief, and the said Chiefs?
Council was thereby prevented from determining the right of occupancy of the
lend herein involved or taking any action in relation thereto end thereby
depriving the Chiefs! Council of its jurisdiction vested in it in relation to

such matters by the lews end customs of the Ton. Band or Tribe of Indians.


. ‘That on or about the 15th day of March 1954, and two days prior to the

ay institution of the action seeking a writ of prehibition as stated in para-

S

C4

graph XII hereef, an action wes commenced in the Supreme Court of the State of
N. Y., Co. of Genesee, by said Ira Charles, Hattie Charles, and one. Samson
Poodry, by their attorney, Nelson T. Barrett, egainst Gertrude Blackchief, and
others, for the purpose of enforcing their alleged claims to the land described
in paragraph numbered X hereof by the application of the inheritence laws of
the State of N. Y. te the said lands and the parties interested or pmtending
and claiming interests therein. In this said action the plaintiffs applied
for a partition of the lands owned and occupied by the said Anne Moses at the

ror
time of her death. | Theat the seid cause was heard by one Noonan, Referee of saic
<a

**%the property is of such a nature that it cannet be actually partitioned
without great less to all parties concerned and that therefore the same
should be sold at public auction and the proceeds divided according to
the respective rights of the various parties.

- a finding for the partition of said lands, thet,

RV.
That said findings were approved and adovted by the court in seid action
nd thereafter end on the 14th day of July 1936, judgment was entered, in which
it was provied as follows:
Ordered, that the real estate described in said judgment
be sold in the County of Genesee by and under the direction of
dames A. Le Seur, attorney of Batavia, New York, who is hereby
appointed as Referee for the purpose of such sale.
XVI.

p22
WHat James A. LeSeur, the Referee above named, was designated and

eMMbpointea by the Supreme court (or the} County of Genesee, State of N. ¥., to

sell at public sale in the case of Hattie Charles, plaintiff, v. Simeon Skye,
et al., defendants, the following described property:

(description)
and was directed by said court to sell the same at public auction to the
highest bidder [faereror at the entrance te the Court House in the City of
Batavia, Genesee County, N. ¥., on the Shh dey of September, 1956, at ten
oftclock in the forenoon.

XVII

SeLD
Qa” That thereafter the said James A. LaSeur, Referee, issued and published

the following eraey) of sale: (oraar)

8.

AVIIL

> That said order and netice of sale had for its sole purpose the object
YY of partitioning the ebove described property among the heirs of the said

esstate of Anna Moses.

XIX : :

> That thereafter and on the 5th day of Sept., 1938, the said James A.
oF LaSeur, acting as such referee, above named, and under said order of the
court, did wrongfully, unlawfully and without authority sell said land at
pablic auction for partition thereof among the heirs of the seid Anna Moses,
and the same was at such sale purchased by the defendant Hattie Charles for
the sum of $575.00. That at the time of the offer of sale by the said

f
\, referee of said property, the attorney for the plaintiffs in the partition

i
proceedings, with the acquiescence of the said referee, stated that no one
, :

f
ce
i

/ except members of the Tonewende Band of Seneca Indians would be permitted to
naa. That at the same time and before the actual sale thereof a member of the
Ton. Band of Indiens directed the attention of the referee to the fact thet
_ there was no such condition in the order of sale.
Xx.

a j
was That thereafter and on the 20th day of Oct. 1936 the said James A.LaSeur,

Referee, reported said sale to the Supreme Court of the County of Genesee in
the case of Hattie Charles, plaintiff, v. Simeon Skye, et al., defendants, and
in said report stated that the said Hattie Charles purchaser, had paid. the full
amount of the purchase price and was entitled to the deed therefor when such
sale was confirmed by the court.

XXI
. That thereafter and on Oct. 21, 1936, Nelson T. Barrett, atty. for
Hattie Charles, gave notice in the case of Hattie Charles v. Simeon Skye, et el,
in the Supreme Court of the County of Genesee, N. ¥., that on the 22nd day of
Oct. 1936 at two o'clock in the afternoon, 2 motion would be made for an order
confirming said referee's report and for fimal judgment therein and for
the confirmation of the said sale.

XXII
be That thereafter and on the £6th day of Oct. 1956, an order was entered
by the seid Supreme Court of the Co. of Genesee, State of N. Y., confirming

said sale and directing the conveyance of said property te the said Hattie

Charles, dere.

ant,

gm a.

And that thereafter and on the 2?th day of Oct, 1936, a deed of conveyance

to the said premises, so {pretendea to be\sold to the defendant, Hattie

Charles, was executed and delivered by James A, LaSeur.

XXIII.
‘ That the said sale and conveyance of said property end all proceedings
leading up thereto end in confirmation thereof were void, unlawful and
without authority and without jurisdiction in any person, court or officer to
participate in said proceedings leading up te and in confirmation of said sale
or conveyance of the said premises to Hattie Cherles, the defendant. That
the said sale conveyed no title to the said premises and that the court
ordering the sale thereof was wholly without jurisdiction to authorize said
sale or to proceed in said partition action and tht said sale constituted
an interference with the tribal laws and customs and was in derogation of
the rights granted to the Ton. Band or Tribe of Indians by treaties with the
U. S. herein described.
XXIV.

That said sele was an interference with the right of the Chiefst
Council vested by the lews and customs of the Tonawanda Band or Tribe te
determine all matters of heirship end the allocation of idand and of the
right te eceupy and possess portions of the Ton. Rese by members of the
Ton. Band or Tribe, and that said sale and deed executed pursuant thereto
alienated the lends of said res. and constituted a taking of lands and a dis-
integration of said res. away from tribal omership as vested in them from
time immemorial and guaranteed to them by the treaties with the 0. S. herein-
before deseribed.

XXY.

we That saidattempted sale and conveyance of said premises in the manner
as aforesaid was violative of the treaty rights of the ssid Ton. Bend of
Indians guaranteed to them by the U. S. and constituted a violation of said
treaty to the detriment end injury of the said tribe. That the effect of the
said purported sale was to alienate and divest the said Ton. Bend of Indians
from their tribal ownership, use and o:cupation thereof ss guaranteed by the
various treaties of said band with the U. S. heretofore set out and referred ta

XXVI.

> That the Supreme Court of the State of N. Y. was without jurisdiction

2 ee 10.

to entertain the suits before mentioned; that all of its purperted proceed-
ings, acts end orders therein were contrary to the Constitution and laws of

the United Stetes and of the treaties hereinbefore referred to; that they moms

Ce.
ee

constituted an infringement upon, and invasion of, the tribal rights and of
the tribal integrity of seid Indians; that said suits, proceedings, acts
and orders were, therefore, void and of ne effect; and that the attempt of
said Supreme Court to assume jurisdiction over, and te intervene in, the
administration of the internal affairs of said Tonawanda Band of Indians
was an invalid interference with, and in contravention of, a governmental
function of the U. Ss.

WHEREFORE, the plaintiff prays that the said purported conveyance to
the ssid Hattie Charles, defendant, of the lands herein described be canceled,
amnulled, set aside and declared void and that all proceedings of all persons,
courts or officers leading up to the sale thereof be declared void and in
excess of their jurisdiction.

That the restraining order and injunction of the Supreme Court of
the State of New York in and for the County of Erie and herein referred to,
be declared and adjudged void, illegal and without authority and ineffective

te govern or control the ection of said Chiefs' Council.

/s/ George L. Grobe

United States Attorney

Assistant United States Attorney

UNIVERSITYATALBANY van conan Uren

| Stare University of New York Special Collections & Archives

Heuey S. Hzoley Papers, \SsHT—- [tle
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Desevib tens FOLDER 2)
1439-144 —

Us. ve Here Charles
| Ansser bo Aaended Complaint

Tauleys nobes on Amended Guswer by Comblatat

1400 Washington Avenue, Albany, NY 12222
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Barba salle b aor


TS S82 ONITED StaTEs DIeTRiCT copET
FOR baa pera DIGTRICT OF BEW FORA

anreEp fear oF sumErea,

: 5: Se
SATTIE CHESLES,

Defendant,

"Defendant by her attorney, eigen T. Barrett, for her answer a
te the! amended esupleint hereins~-
I, Benies amy mowledge or inforgstion sufflieiest to form =

belief concerting the allegetions contained in paragraphs I amd If
of the erended complaint herein.
Ei. Benies the allegations é in paragraphs [ZZ and IT

of the amended complaint herein.

33. Bentes any mewledge or information sufficient te form a
belief ecdeerning the allegations contained im paragraph ¥ of the:
asteaded complaint herein.

¥, Benies any knowledge or information sufficient to fom @
belfef concerning the allegetions contained in persgrephe VI, VIE, and
VIII of the Gmended complaint herein.

. % Aéwits the emectment of Chanter 499 of the Hew Yerk Laws of
1860 as referred te in paragraph TZ ef the amended compleint.

WI. Denies the sllegations of paragraph I of the amended !
compleiut relative to the alieged ‘meaning and effect af vecnill 439 of
the few York Lews of 1660. oe

WIT, Peates the allegations contained in parseraphe 2 end 32

ef the amended complaint herein.

VIII. Admits the allegations contained im peragraph EIT of the, ue
amended complaint herela exeept the words, "and before amy action was , 4
fakes upon the seid getétion of said Gertrude Blackebief™ conceraing vhic
defendant denies any mmowledge or Information sufficient to form a bellely


* Be

iu, Admits the allegstions contained im peragragh ZILL except
the word "purporting".

Zs Denies the allegations conteimed iu paragragh SIV of the
e@ended compleimt except thet defendant admits the hearing ané Findings
ag alleged therein. :

KE, Admits the ellegstion contained in paragraph AV of the
amended complaint. nat

-EEEy Admite the ellegetions contained in peragraph ZVI of the
emended complaint except the words "af the™ im the second line, ené
thet portion theres? comteined after the word “therefor? s

SIRT. Admits the allegations contained im paregreph ZYIE of
the amended complaint. except that the word "aetice® should be sub-
stilted for the word "order" im the sesend line thereels

RIV, Benies the allegstiong nod in p ephs XVETI aad
EZ of the ememied compleint< ; ;

RVs Admits the aliegations contained in peragraphs XX amd X02.
of the amended compleint.

RVing Admits the ellegetions contained in peragraph EEIL of the

a gleint % the words "pretended te be™,

EVIE. Denies the allegations contained in peragraphs MAIL,

4XIV, XXV and XXVE of the complaint herein. ;
XVIII. Denies each end every other ellegation of said complaint
not hereinbefore admitted or Genieds

For a further ensver and defense Gefensent alleges:

Six, That said Battis Cheries éuring her whole life has been &
member of the said Tonewenda Bend of Indians amd obtained geod end
valid title to the property descrited in the amended complaint by
purchase on September 5, 1936, at the referes's sale conducted by
James dg Letewr, Gily eppolmted referee therefor by the usreae Court
ef the State of Hew Yorks

Wy That the State of New York had full jerisdiction of the
parties and subject matter in the action entitled "Hettie Charlies,
pleintif?, vs. Simeon Skye «-sses.sGertrude Blackehief (mentioned
im the complaint) et al.


Be

BEly The ofesent sult or combroeversy invelyes possession of
en allotaent ugen the Tonawanda Reservation, being the pareel of land
deseribed in paragraph X of the complaint, and Gertrude Bisckehie?
is the real party im interest 2s plaintiff, and should be substituted
er joined im that capacity.

a2iis The State of Yew York has heretefore enacted certain
statutes entitled “4am set for the pretection and improvezent ef the
Tonawanda Bead of Seneee Indians*, These statutes were chapter 263
of Hew York Laws of 1664 and chapter 90 ef Hew York Laws of 1963, sith
veriots amendments im Yerious yoars down until the present time, and
thet entire body of legislation is pleaded by this reference, These
statutes were enacted at the request of the Tomewenda Indians, aad
tee State of New York thereby eesumed gevemmentel contre] ef them ~
and their property, which nas contimued from 1661 or earlier dom to
the present day, withoct protest or incomsistent action by Congress.

ZSEET. The present sult or controversy inveives issues whieh
heve heretofore buen determined between the real sarties in interest
by an earlier erter or judguent of this Court ana by eerlier orders.
and fodgeents of the Gupreme Court of New York State, Walch sald erdere
ane, gudgments ere res fidicata and stare decisis ag to the issues
abtempted to be presented by the complaints

ARTY s % at the time of the death of anne Hoses, thig de-
fendant wes in possession of the real property deseribed in the
eemplaiat herein.

That after the desth of seid Suns Moses, the said Gertrwie
Eleckehie?, with latent te cheat and defraud thie defendent and the other
heirs interested im and having title to sald property, emtered into 8
scheme and. conspiracy eith certeie of her ecqugintances to deprive end
gust this defendant end the other said heirs of aud from said property.
fhat,in persait of esid fravéulent scheme and eonspiracy,

said Gertrude Blackciief and her cé-consplraters set in 2 furtive. and
seeret tanner, anc in sad by such secret mestiog, witheut the knowledge
ef defendent, purported to transfer the title and right of pesseasien
of seid property te said Gebtrude Slackehief; and still centimelns each


Ae

frendulent comspiracy said Gertrude Bleskehief filed with the

thiefs Comeil of the Tonawanda Bamd of Indians, en illegal petition,
seeking te oust defendant from possession of said sreperty; that such

mecting, if same were held, amd the other acts of seid conspirators
were illegsl, invelid and ineffective for any purpase whatsocver
end in ne wise effected the rights of this defendent.

BHEREPORE, defendant demande judgment, ed judging valid ali.
groccedings of the Suereme Court of the Stete ef Rew York in she
ease ef det dont Wee © Gmye, ot al; and confirming as valid
the title of defendant in and to said real preperty, besides costs.

mf, BARagry
Bee y for Bers
Office & P. OG, Address
332 Bllieott Square
Buffaic, New York:

de

Be


State of New York
UNITED STATES DISTRICT Opurt

; WESTERN cr oF NEW YORK
at th WRK

UNITED STATHS ‘OF AMERICA,

md

Complainant,
vs.

| HATTIE CHARLES, 2

Defendant. :

Copy

‘ Answer to Amended
Complaint

NELSON T. BARRETT
Defendant

ATTORNEY FOR.
: OFFICE AND P, O. ADDRESS.

338 ELLicoTt SQUARE

BUFFALO. N. Y.


wo ene

“STATE OF NEW YORK) : 4
COUNTY OF ERIE, ss. :
CITY OF BUFFALO,

being duly sworn

says that he is the plaintiff _..in this action; that he has

read the i Hai and

knows the contents thereof; that the same is true to the knowledge of deponent, except as to the matters’

herein stated to be alleged on information and belief, and as to those matters he believes it to be true.

Swern to before me thi:

day of mo j

Notary Public, Erie County, N. Y.


tee lana sn
awe by 38 how et
) adfiseuk » on

7 acynpia tank «gt anni Ado

4 the raaar~welien (S27 t
ee oy Ube Rea z= te SOLE
Cmrahinale ond thy anackineudt of chofilin 43a 9 1FLo ”
cankdrwing Uist Tomaastorn, male. apids.<. sisct

ror b eae, wAncedr ne Aenhind Stiles snag perky

nears, Ae wee qyincke pnts makunel ae
warts StS, ee bool SUB,
tod 2 clad * ‘ds ws amadeayeslily in nthe caves,


ff) UNIVERSITYATALBANY ME. Grenade Dearne of

Stace University of New York Special Collections & Archives

Hewry S. Ranta Papevs, 1sH9- lilo

Sevies

, Box |
Desert Hon 4 FOLDER 2:
Dale [to - 174]

us Vv. Hattie Chawles
Covres pendence be fucen Heary Sg. Manley ty
Nelsou Bavrete a Ht far a ttre Chevelen

US vo Hathe Charles

Notes

14 pages - frout and becle

1400 Washington Avenue, Albany, NY 12222
pH: 518-437-3935 Fax: 518-437-3930
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Barbasalle 2613

Desesber izgth 1540

Helson f. Barrett, Esge

319 Second Avenue

St, Petersburg, Fla.
My dear Me. Barrett:

dest about the same time you were writing ue from Florida,
about two weeks age, I was calling at your “offalo offiee and
learning where you were and all they eeuld teBl me about how you
were, Your stenographer was good enough (from my viewpoint)
te think that time might be heavy on your hands and yeu would
be Blad te see me, and as I was hoping to eome te Florida for
Christmas I took your address and set to work all the harder to
persuede my femily to wake the trip. Geodness knows why thet
shevid be difficult, bub they hung back quite a let, ani it was
fest yesterday that I knew I had them all persuaded, We have
Some relatives at Lekeland and Bradentown, sc we will be spending
a few days er even a week in your neighborhood, and I au going
to ¢all on you. Yow cen expect te hear from mus about the day
after Christmas, and then we can start in talking about ali the
Indien troubles and Milk troubles, whieh are numerous as ever,
and I am preity sure we will net get them all setticd by ew
Years Day, when I must start North again.

, Yours truly



ALL ROOMS WITH BATH
The Monticello Hotel ;
MRS. M. ACUFF
pew SEWAYS :: CLOSE TO THE REACH ;
‘37 BISCAYNE BOULEVARD eee eg Yi
MIAMI, FLA, / / %



TELEPHONE 2-9352

MRS. M. ACUFF
CAUSEWAYS :: CLOSE TO THE BEACH

The Monticello Hotel



The Montiacllo Hotel ~~

MRS. M. ACUFF
BETWEEN THE CAUSEWAYS :: CLOSE TO THE BEACH



ht :
" TeLegONe 2-0352 % “ALL ROOMS WITH BATH
4 The Montiacllo Hotel
MRS. M. ACUFF™"~ 7
cLose To TH



MEMORANDUM, from Me, Barrett, 2/16/41

\

' @ramatis persomae are, or were when living, members of the
‘onawandeafands :

Abowt 40 years ago an Indien maiden (can't reeall her given name)
consorted with a mm and gave birth to a child, the reputed father
ef whom is Indien A.

Later she repeated the experience, the reputed father being Indien B,

Again a heavenly bundle wes presented to the maiden, the reputed
father being Indian ¢.

The three children are living.

tater the maid end one Charles Sundown (former acquaintance of wine)
began living together and begot five children, Charies was industrious
and was employed in a gypsum mine, About twenty years age he was
accidentally killed in the mine, leaving his eonsert and the five
ehildren, several being minors.

Attorney Wx. Coon of Eatavia appeared for the sonsort and ehildren
nefore the Werkmen's Goupensation hearing and a substantial sum was
directed to be paid. Bhese were weekly payments te her whe I am teid
was declared te be the widew, and sums were set aside for the children.
Bhe widew died in a few yeers, and My. Coon was appointed guardian for
one oF more of the infant children who were paid (as I understand)
their shares on reaching 21 years.

fhe youngest child's share was well invested and handled by friend
Goon so that a year ago it amounted toabeut $2,500. Im the spring
ef 1940 the youngest child dieé intestate. I represent his four
brothers and sisters, the children of Gharles Sundown, and had one of
them appointed administrater in Genesee County Surrogates Court.

Seven months will expire about Mareh first and the heirs are in a
berry for the money« . 2

Now is the rub; the three illegitimates now claim three sevenths of

the fund. I heve not aceess te N.¥. statutes; but if illegitimastes
under §.¥. laws they would not inherit over legitimates. Bhe equities
ave all with the Sundew: children, the fund eoming threugh their father.

I ean't prove the marriage of Charles Sundown to the coy maid.

She was not married te any of the Indiens, A op Bor €. The three
illegitimates can't preve paternity but that is immaterial + I dontt
expect we can dispreve their maternity.


T. HARRISON GIBSON, President

VALENCIA

HOTEL-APARTMENTS

OPEN ALL YEAR

MIAMI, FLORIDA

Dhue iG Wd ,

ie ee i a a
oon be got hy Ue
taal’ oily CO
Geah:\ gurrg ils lel


 BrLlesene G. Cot
Atterney end Counselor xt Law
Batavia: i.

Bistvict.Adtomnet
Bafa zee T. Barrett, Valencia Hotel Apartments, N.E. 2d. avembe,

6th. St., Miami; Florida:

Dear NelLson;- Yours 1/31/41 came. Glad to hear from you. Hope the
fine Florida air and warnth is deing you much good, and that you wili come
back to us fully recovered from your late unpleasantness.

Inclosed find all the clippings from the Daily News concerning
Stedman's death, obsequies and Will, which I know you wibl read with inter-
est, as you knew him so well and long. When you have finished looking at
them, will you please mail them back to me, as I want to send them else-
where, and, possibly, keep them. Bayard was quite a led. Theremas great
grief here among the Lawyers at his passing, as you may surmise. Mr Wat-
son told me yesterday of the bearers (oniy) taking Sted's remains to the
crematory in Buffala, laying them on the bier, walking out, leaving him
there alone, and then going down town to sup together as Sted had request-
ed thet they should do. There was no public funeral and no one looked upon
him after death, according to his wish. Note particularly his Will. He had
been of little use to Mr Waterman for several years and realized it.

And our old friend. Guy Moore also gone this past week. They say
he looked terribly in late months, one leg, unkempt, haggard, as he walked
into Buffelo court rooms.

. A week ago I had the pleasure of attending Judge Sears'dinner
at the Statler-must have been 400 there. Enjoyed it much. Sat next to Harry

Taylor and hades good chat. Judge Kenefick, his partner Mr Mitchell and
other famous ones nearby. The speeches were fine. Five Judges of the high
court and all the App. Div. were there. John Lord O'Brien, speaking for the
Lawyers, made a characteristieally fine address. There was much humor in
the talks. A lot of fun was poked at the Judge.

thanks for copy of Decision of Judge Burke, received from your Buffalo
office. Now my file is about complete. This is a very interesting case. How
sorry I am that I was ill when you tried the case in Rochester. I would have-
enjoyed hearing it and maybe testifying as you wanted. But these blows come
to us and we must take 'em. At that time probably you did not expect that
you would be next. : -

Thanks for sending note to Judge Burke in re Tonawanda records. I will
undertake to get them into my custody, so we can consult them.

in haste,
y, red _ He

T. HARRISON GIBSON, President

VALENCIA

HOTEL- APARTMENTS
é OPEN ALLYEAR |


 UNIVERSITYATALBANY fim, casnsetarmeers

"Stare University of New York Special Collections & Archives

Hewry S. flan leg Papers, 1s8a— mien)

Gevies {

Deserts ton FOLDER 2)

Dade 174i =

Covres bondence, ise.

US ve Hettte Charlers

1400 Washington Avenue, Albany, NY 12222
PH: 518-437-3935 Fax: 518-437-3930
httpi/library.albany.edu/speccoll!

Darbagalle Dolg


January 31, 1941.

Hon. Harold P, Burke,
United States District Judge
Federal Bldg.

Rochester, N. Y,

Dear Judge Burket
Re: U.S. vs. Hattie Charles

Miss Sickmon delivered te this office yesterday a
eopy of proposed findings and conclusions submitted by Mr. Barrett,
and advised that the original of the same had been forwarded to
your office.

foday we received a letter from the office of Mr. Barrett,
stating that if any motion was to be heard in comection with the
proposed findings and conclusions, it be made returnable at
Rochester, inasmuch as Mr. Manley would handle the matter for
Mr. Barrett.

Immediately upon receipt of the proposed findings yesterday,

we communicated with the office of the Attorney General in Washing ton,

assuming that a representative of that effice would desire to be present

on a motion day when the settlement of these preposed findings and
conclusions was te be considered.

We expect a reply in a day or two, and it is our thought
that, upon receipt of advice from the Attorney General, we will serve
a notice of motion upon Mr. Barrett, returnable at a special term
in Rochester.

Our purpose in writing is to respectfully request that you
defer affixing your signature to the proposed findings and conclusions
until we know definitely that the Attorney General desireste be heard

upon the settlement of the same.

Respectfully,

George 1, Grobe

United States Attorney

cOoPY

UNITED STATES DISTRICT COURT
_WESTERN DISTRICT OF NEW YORK

i
i
4

THE UNETED STATES OF AMERICA,~
Plaintiff,
VSe

HATTIE CHARLES,
Défendant.

SIR:

YOU WILL PLEASE TAKE NOTICE thet the plaintiff
above named will move, at a special term of the United States
District Court for the Western District of New York, ap-
pointed to be held at the Federal Building, in the City of
Rochester, New York, on the 24th dey of February, 1941, at
ten o'clock in the ferencon on that day, or as soon there-
after as counsel can be heard, for a hearing on and settle-
ment of the proposed findings of fact and conclusions of
law as submitted to the District Court by both parties in

the above styled action.
Dated, February 5, 1941.

Yours, &c.,

/s/ George L. Grobe

GEORGE L. GROBE,
United States Attorney in and for
the Western District of New York,
Solicitor for the Plaintiff,
Office & Post Office Address,
502 United States Courthouse,
Buffalo, New York

TO: NELSON T. BARRETT,
Attomey for Defendant
Ellicett Square
Buffale, Hew York


atom JID2:AB

DEPARTMENT OF JUSTICE

UNITED STATES ATTORNEY
WESTERN DisTRICT OF NEW YORK
BUFFALO, N. Y.

Your REFERENCE February 6, 1941

Mr. Henry S. Manley
Attorney at Law
100 State Street
Albany, New York

Sirs
Re: U.S. vs. Hattie Charles

Receipt is acknowledged of your tele-
gram of even date, suggesting that the attorneys
appear next Tuesday at Buffalo or on Wednesday
at Rochester for the purpose of having the pro-
posed findings settled.

In reply, we beg to advise that Mr.
Lawrence desires to be present on the day the
findings are to be settled, and we have just,
within the past few days, received a letter from
him to the effect that he expects to be in
Oklahoma for several days, but can arrange to be
in Rochester on February 24 for the above purpose.

Consequently, we served a notice of

motion upon Mr. Barrett's office, returnable Feb-

ere une

~2-

puary 24, 1941, for the purpose of having
settled the proposed findings submitted by the
parties.

We would have served a copy of the no-
tice on you, but we did not have your address in
the file, although we received the same today,
after your wire arrived, from Mr. Barrett's of-
fice, and his stenographer further informed us
that a copy of the notice had been sent to you.

So far as we are concerned, we would,
£ course, like to suit your convenience, put,
inasmuch as Mr. Lawrence will be in Oklahoma for
the next several days, we cannot agree upon any
date except the 24th and unless we hear from you
to the contrary, we assume that you will be in

Rochester on that date.

Respectfully

Q4 home Oh te

George L. Grobe
United States Attorney

3 UNIVERSITYATALBANY sa eon

2 <35) State University of New York Special Collections & Archives

Ve ES. A aley Papers 1Ss4%—- {lo
rieawy ca é Pr ,
Gevies \

Box |
Desevit bien - SOLDER 4]

Dele cs (1939 =

Defend ants Brict

ve Ss, vy Hathe Charles

1400 Washington Avenue, Albany, NY 12222
PH: 518-437-3935 FAX: 518-437-3930
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Bavbagatle L [2013

USETED. SES OF AMFRICA,

Complainant,

Defendant.

DAPENDANT!S BRIEF

Faets
hewis Peedry, the great grendfathor of the defendant, Hattie
Charles, died tatestate in the year 1676 at the age of ninety-siz yearsy
\ and for over sixty years immediately prior be his death continuously —
ini o¢ icomplaint, during ack age
nis family im s house eeated spon the real property in of

oceupted remises described in the

he Lived a

question, and used and cultivated such lend for farm purposese

his death Lewis Poodry left him surviving es his sole

nildren, viz, Edwerd Poedrys Jomn Poédry, Helvine doses,

atia Poodry, all ef whom ‘were oF fall age at the time af

Jotm Poodry was the father of & & sony Samson Poodryy wie

and occupancy of the premises descra bed in dns amended complaint, and :
Teside until her death about. tthe year 1890, Said Melvina Hopes

died imtestate, leaving es her sole her at q av, her son, Philip Bose

es had lived on said premises with ‘his grandfather, Lewis Po
and bis nother, Melvina Hoses, for many years, aid watil the death of Ca
of thes: @ ‘ter bis mother's death he ‘Pemained in ecoupancy of the premises,

using and cultivating the Yand fer farm purgeses, and continued te te oeuny e

and possess ‘the same until his death in the: year 3806, Said Philip Hoses :

died intestate leaving no child or descendant.

About the year 1484 4 Donawanda Indian nanied Thomas Blackebief

and @ fenavenda Indien woman neged sana (anknow) were married to pack ones

and for a number of years they lived ‘“egethe? as man end wife upon the -

oe

1934 ; ;

2s

Tonawande Reservation. As the result of such marriage there was born
about 1685 6 daughter Gertrude Blackehief, That said marriage continued
in force wntil the death of said Thomas Blackchief about the year 19%

boat the year 1897 said Anna Blackehie® came to the home of said

Philip oss and contimied to Live at such house until the death of sata
Philip ‘Be s.in 1906.

then said Anne Blackchief went to Iive with Philip Neses she brovght
with her add danghter Ce ertrude, who Stayed antil 1902 when she married and

loft, ths premises ang has not since lived theres

% 1897 a Toneswanda Indien named Charles had married a woman

of the Cayuga tribe, Seneca Nation of: indi ansg:.she- died fatter giving birth

to & SOR, fea Charles; the father placed the chile, them aged 5 months, in
the home of Philip Meses and he with the sid ef said Amme Blackchdef reared:

said ehild) who continued to live on said premises until the death of Phitio

Moses ind
through sdepiion by hin in 1896,
igter the death of Philip Moses, Sauna Blackehief, whe hed et some

906. Said Ire Charles claimed to be the only heir of Philip Moses

period assumed the name Moses, and said Ira. Charles lived im said house; an
at some peried later Samson Poodry, a som at Joba Peedry and aise a ooilnters:
heiy ef PRElip Moses and father of defendant, ceme to live om said premises” .
claiming aievershtp ef an interest im seid property, subject to ali right is! of
the Tonawanda Tribe. In 1925 said Ira Charlies and defendant, Hattie Pooary
Charles were married to each other and she camé to live with her husband and
father en seid premisesg This éccupancy continued until 1854 when Anna
Bleckchie? (Moses) died intestate. At the time of her death there rensined

on the property Samson Poodry, ira Charles aod his wife, defendant Hattie ah

Charless Samson Peodry claimed right of possession of said property) as an

heir of Philip Moses.

Between 1918 and 1920 Ira @harles expended fer permanent improvement

on the preperty the sum of $465.00, mostly for buliding am addition ta the
house, and érilling a well. 3 .
in passing it is well to state that all members of the Poodiry.

family have at ell times belonged to the fartle Clan; Anna Blackehief —
her gauseker Gertrude have at all times belonged to the Beaver Clan of ‘the

Tonawanda Tribe.

r

Se

Ils

Barly in the year 1934 said Gertrude Blackehief laid claim to
seid real property on the ground thet the property had been awarded her
at a®lenth Day" or "Dead Feast and presented her ¢dlaim to the Council of the
Fesawands Bande '

“in March, 1934, said Commeil inforsied Ira Charles and this de~
fendant- that a hearing on said claim would be held on March 17, 1954, to
determine the ownership of seid land and that force would be used to place
the proper party in possession.

Ig erder to obtain 2 peaceable determination of any issties which

might be involved and to prevent disorder, riot and

sible bloodshed said Ira Charles and this defendant om March 17, 1934,
applied te the Supreme Court, State of New York, for sn order directing
Gertride Blackchief and William Jones es President, and the Chiefs Council,
of the fonswands Band of Seneca Nation of Indiens to show cause why they
should not be prohibited from taking any further action im the premises«

whe matter came on to be heard and said Gertrude Blackechief and
Ghiefs gouneil appeared in oppesities te granting the relief asked and
made a counter motion in the State Co to remove the controversy to the
a, Ss Court fer Western Dist. of Be Ys, end also moved in said U. Sy Court.
fer an order removing the controversy te uch 0. S. Gaurt. Both motions
to so remeve were denied and an order of prohibition was granted restraining
the said Gowuneil from further acting an the pretiises.

Jadge Knight of the District Court wrote an epinien found in
8 Fed. Supp. (24) 295, Justice Lytle writing opinion in State Court.

Before Final decision of the motion above mentioned an action of
partition of said premises was commenced in the Supreme Court of the. State
of Hew York, entitled "Samson Poodry, iva Charles and Hattie charles €this .
éefendakt) plaintiffs, and Simeon Skye, Gertrude Blackehter, et alas * te
which action all interested persons were made parties except the State ef
New Yor and The Tonawanda Sand of

In the partition action Gertrude Blackchief was made a party
defendant as owner of em undivided interest through her father, Thomas
Poodry; she appeared generally and interposed an answer by Robert Cedd.

ner atterney, denying certain allegations of complaint.

During the progress gf such action said Samson Poodry died and his
nahe was stricken out as party plaintiff, Ali ef the heirs of Samson Poodry
deeded their interest in the property to Hattie Charles.

Gpon the triel Ira Charles failed to prove his adoption by Philip
Moses and bis name was dropped as party plaintiff and action e@mtinued with
Hattie Charles as plaintiff.
Judgment was rendered holding plaintiff to be the owner of an
undivided interest im said premises and defendant Gertrude Blackchier

to be the owner of an undivided interest therein, and directing & Babs.

lic sale of said premises to the highest bidder; the preperty was duly ‘sold and
bid in by Hattie Charles, she being the highest bidder therefers proceeds

were distributed, Gertrade Blackchief being said and accepting her

share in cash, Upon opeing of sale plaintiff's attorney announced . cele te

be subject to all rights of Tonawanda Band and the law limiting omership or
lands to Indians of Tonawanda Band only.

‘Wo appeal was taken by said Gerirude Blackehief and the asual
Hattle aes

referee's deed was given to fmrk g and recorded in Genesee County

Clerkts office and she hasuéver- since continued to reside upon and occupy said
property subject at all times,of course, to the ‘Pribal rights of Tonawanda Band
About two years later this action was begun. The burden of the
complaint ig comtained in paragraph XI, basimg the claim ef title te said.
property in Gertrude Blackehief by virtue’ of the determination of so-called :

"Gen Day Feast® and the "Wherefore® clause praying enfor t of an alleged.

Feasé decision.

Defendany; made a motion for Summary judgement om the pleadings;
same was denied, Judge Burke presiding, and his opinion eppears in 23 Feds:
Supp. (24) 346.

Later a motion for summary judgment on pleadings wes made by
plaintiff, same being denied by the Court, Burke, Jey presiding.

Later this claim of title through "dead Feast" appearing untenable,

was dropped, and an amended complaint served eliminating any question re "Dead
Feast.
Therefore plaintiff again made motion for summary judgment on

pleadings which was again denieds

A UNIVERSITY4tT ALB ANY University Libraries

an

MLE. Grenander Department of
State University of New York Special Collections & Archives

Heury S. Maley Papers, 1s4H%- [que
Series |

BOx |
Desevib tion

POLDER 2!
Dale —)h- 19-1934

Draft of Proposed Brief — Q Mere i we
Us v, HaHie Charles

5p + Covers bpp

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PH: 518-437-3935 Fax: 518-437-3930
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Barbagatle 6 Jao

HOM 11/13/50
page 1.

UeSs_Vv_ CHARLES
(First draft of proposed briet, mostly a mere summary)

Nature of Suit

The plaintiff is the United States of America, and in paragraph
Il of the Amended Complaint slieces that the suit is brought
on behalf of the Tonawanda Band to prevent "alienation",
"@tapossession", etc., of Indian lends.

whe defendant is Hattie Charles, a Tonawanda woman, She tosified
that sho 1s a member of tho Band and has resided since 1925 on
the lends in dispute, with her husband Ira Charles, and until
June 1935 with Anna hoses alee.

The Amended Complaint allegea various transactions relative
to the Tonawanda Reservation aw a whole, and relative to |
the 45 acre tract now in dispute, and coneludes with the
following prayer for veliefs

"Wherefore, ¢he pee praya that (ete, Copy both
paragraphs of the prayer, ending) Chief's Counoil."

Apparently the suit is for a declaratory Judgment, ox to
remove cloud on titles

Questions Presented

Under the first point of this brief there will be presented
certain general, objections to this sult.

‘th a sult such as this 1b obviously 1s necessary that the
Jeintiff prove, in addition to the fact that the defendant
s asserting some right or title to the lands in dispute, tha te

(a) The asserted right or clatm Ts of such nature
that the United States has the responsibility
waxeu of suing against the claim, if falsely asserted

a
(b) It.is falsely asserted.

Tt Ls not cleav either from the Amended Complaint or the proof
offered wy the United States upon the trial, what claim upon
the lands in question the United States ae ese the
defendant to be assorting, and honce it is difficult to axgue
whether the United States would have the power to bring this
sult, sesuming that the olaim of the defendant is baseiéaa. ‘
The defendant's position upon that pekuak lo is terely
outlined in the second point of this brief, Permigsion is
asked to argue it at groatem length after the United States
has made olear by its present brief the alleged basis of ite
power to bring this sult.

(2)

Tho third point of this brief goes direotly to the morita,
and submits that the claim of the defendant is valid.

Brief History of the Tonawanda Reservation

(fell briefly about the various treaties and transactions,
with as much emphaais as ppasible upon the part of the State
in preserving thia lend for the Tonawandas, the fact that
title is now in the Comptroller, the various statutes
governing it, eto.)

History of the Disputed Lands to 3.933

(felk the story of this allotment, se far as 1% appeara
from the record, and the various persons who resided upon ity
down to the death of Anna Moses in June 1933)

Litigation sinoe 1953

(fell about the Prohibition and Partition suits in State
courts, the effort to Kamu remove the controversy to the
Federal court, the original complaint, and the two motions
thus fay decided against the United Sa

tes.)

Point I

Under all the clroumstances this sult should
OU BS Tena,

(Argument under this point should conslet principally of

a caveful statement of the facts In U.S, ex vel, Kennedy v Tylor,
269 U,8. 13, and quotation from ite GoneLisTon th remedies

in the State courta should be exhausted before coming to the
Federal court, To that may be added sone argument that this
sult is a "collateral attack" upon a State cours decsison which
is now "res fudtoata® as to the matters in question, or that
Judge Knight's decision 1s "ves judicata", This requires more
study than I have thus gar given it.)

Point If

Defendant claims no title adverse to the Tonawanda

nd o. 6 Unite aves, hence this sult anno
bo maintalned pegardleas of wad ther delendant's
Slain Ta. Valide

Reference has already been made to the difficulties of arguing
this proposition at present, because the position of the United


(3)

States ls insufficiently defined. fhe position of the defendant
ig that she asserts no claim to the lands in dispute except an
allotment title, and cannot assert any other claim under the
partition sale in Charles v Skye and Artiole 64 of the N.¥, divi,
Practice Act,  Acsordingly,; ae asserts no claim adverse to the
Tonawanda Band or the United States, Conversely, her claim,
whether valid or invalid, is not subjeot to attack by thom,

fo hold otherwise would run counter to tho well-settled rule in all
real property actions, that the plaintiff must win on the strength
of his own title and not merely on the weakness of the defendants
title. Fiether argument of this point must await a more specific
statement by the United States of what it conceives to bk the
purpose and authorigzation of this sult.

Point Trt
Defendant's Claim ts Valid

(The argument under this point should be extensive, and cover the
following:

Justification for use of history to determine law governing Indians,
Refer to Holmes! dietum at 856 0,8, 349 that "a page of history is
worth a volume of logics aleo to the emphasis 4n the Kennedy ease,
269 U.S. 13, upon long established relationships.

Community ownership of lands to and including the Revolutionary period.

Individual ownership of improvements came to be recognized early
fim 10th century. Gradual tendonoy on Tonawanda and other
reservations to accept white mants aystem of ownership, branafer
and government.

How the 1861 and 1868 statutes governing the Tonawandas came to
be enacted. The recognition they have recolad from the counts
of New York and from Federal offlodais,.

Defendants claim to allotment title, whether deived by helrahip
ov partition proceeding, is valid,

Pina lly

It 1s respectfully submitted that Judgment should be for the
defendant, and the Amended Gomplalnt should be dismissed,

NELSON |. BARRETE

$83 Flideott Square
Buffele, XY
Attorney for Defendant


13/1.3/89

Dear Mr, Barretts

A
Enclosed is a rouch drat) of a proposed brief in U.S. v Charles,
This may serve as a more or less orderly framework around which
to group our arguments, My main gonoern 1s with Point IiT, and
I will set about writing 1b within the next ten days.

B
Porbaps page 76 of the Whipple Repert (Assembly Doounent Ho, 61
of 1889) of whieh a largo part was put in evidence by Mr. Lawrence,
should be brought to Judge Burke's attontion.e Ite only
significance Ls the recommendation that the State should "uproot
ho whole tribal syatem" and give each individual Indtan “absolute
ownership of his land in fee", It seems to moe that it ahould .
not be nevessary to introduce in evidence official documents,
whether State or Federal, in order to argue from they, but perhaps
the page should be mentioned.

i]
Likewise I shall aygue from ant Extra Census Bulletin of the
lith Cohaus, entitled sume "The Six Nations of New York", This
was published by the Government Printing Offiee in 1898 and
paged i to vil, 1 to 69, besides a large number of unpaged maps
and Lilustrations « Substantially the samo matépieal ds found
at pases 4470408 of "Indiens Taxed and Indians Net Taxed *
ublished by the Government Printing Office in 1894. I am
errr you a vopy of the latter, whieh you may find Interesting,
I shall quote from tho lower half of page 496, but there are
other parte of the pamphlet that may be helpful, to us,

D
The "Regulations fpr Determination of Heira" and related matter
of the Commissioner (returned herewith) cortainly Indleates that
the Commigaloney takes a realistic and progressive view of
vonorvation titles, and recognizes that they should devolve trhough
heirahip and wills according to the waite courts rather than
Long House processes, However I take it that his references to
allotments moana under the Dawes Aot of 188%, whieh 1a the redoral
AkLotment Act (U.8.G. TMtle 86, sections 332-389)

g
T shall be in Buffalo, at the Hotel Lafayette, later this weok
and hope to call upon you,

HOM

December 16th 1989

Use 8» Maranal
Rochester, Nw.

Deay air:

T have nevdr received my fees as a witness
in the case of United States v Hattie Charles, tried
at Rochester about two months ago. My bl11 was
twentywodd dollars, for mileage between Albany and
Rochester, and as ine defendant for whom I was
aubpoeneed was defending in forma eee X underatand
that my fees are paybble by the United States,

If there is any uncertainty about this, I hope you
will take whatever steps are necéssary to resolve it,
so that I can receive payment 18 any is due mo,

Youre truly

HOM


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Dele __ © 114

us v. Hetic Charles
Plaindel fs Finding s of Fact and Conclusions af bau

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HATTIE CHARLES, i CUGLES IONS OF Lae

‘fee above entities case coming om to be beard bo~
fove thn Wonorsile Harold 7. Barks, Judge of the wbove court,
on tne | D. doy of Cototar, 1959, at the conktigquss in the
ahty of Socbaeter, im the State of Hew Tou, platutite
appearing by George be Grobe, Uatbed States Attomeys de Be
perm, Aneiwisnt taited State: Abtomey, ¢. fl. Duntale,
Special. dasistant to the sbtemey satrey '
Specidi deaistant te the Attorney General, in bebal? of the |

eves nd Seany 8+ Mackey] and the

Son, GUL the pifidevits teretefere Bled tn the ection
1K capper of the sothons for sumanny Sotgamnt, upon tie a-
ie] tiewiens coutained in the pleadings and won the evidences
iekredueed in open court, and from the foregaing the court
hereby nakes the fotieaing
fn


¥
hab the ackion wes troughs by the Abtomey
General of the United Sates at the request of the Sear
Sexy af the Interior of the United States for and on be
half of the United States, and on behalf and as trustes
and guardien of the Tonawanda Bend of the Seneca Nation of
the State of Yew Tork,
i
That the court bas jurisdiction of the defendant
and of the subject uabber of tte action.
Ur.
That st all the tines bereimagter menbionad the
Senate, Gnomlage, Mohawk, Cayuga, Oneida and Tescarora Bekions
have jointly constituted the Ivequeis Uonfedarady now as
the Six tixtican, and the Tengranda Sind of Tudiane hos toon
@ separate and digtines tribe of the Seneca Mation of Indians,
ot bound by or subject to the chatter of the Sessa Hatton,
sdopted by the Atlegeny, Cabterwzgua ud Of1 Spring tends oe |
ttn terns nd gta tag gr xe
ite exparate tethal amr and sto.)
Me
‘That at wld tines herein mestioued the Yonamends
Band of Tndians bas Saintetned its om Seibel, roletioay, bas
rateah phpsanrenin brent


hat while in the and p ion of

memorial the said Six @ inte
with the Giited States, to wit, om Geteber 22, PGA, ab Fort

yf" stacey, See Recta 0 Senemeny Pg BAD, AA Bet Boome ae
set tt 2 ob Ges Hr
/ — warked Exibite 2", "", sud "0", respectively,
: That all. of said treaties wore duly adopted, rati~
oe simes said time been in fel] force and effect.
vo Tht in the last mentioned treaty, inte on
were therein recognized all rights of the Six Netious and of
the component parts theres, including the Seneca Hation of
lands weeusied by thon, which said righte were specifically
* granted wader the Sollowing provision (7 Stet. 45, art. IEE}:

/, vopiies of sien * See eee hed to the couplaint |
proclaimed by toth of the contracting parties and
Sovenber Ii, 174, atl prier treaties were cpufizued and there
Endiens and the Toneuenda Band of the Seneea Nation, te the
Nou, the United States ge all
tioned <

the people of the United States, who have the

right t purchase.
an .
Phat daring Gr about the sonth of June, 1993, Ama
Noses, a menbor of seid T Bond of Sencka Indios,

jlo: Wet \ Sy eS eehects

PYG elas es frag rr "een,


@ perb of geld Meeervelion, more pariiedierly Generived as
oLLoms:

(Gertrude Hlackahtet was her dimghter, residing with her and

| "fact, at the time of the death of said imme Uses x
—<'» ag in the seouy and we of the lends involved 8

That eoesfter the eald Gertrude Mackelie? aly

filed with the Shiefe' Sowell of the Tooswaniatend of Indians,
Parkofs {Smet nm meen twa at WE
Ts oho ll

petition claiming to be the heir of Amma Bonds end entitled to
Bot. ‘tie use and egeupaidon of the tract of lend immelved in this
eetion aod fer the porgens of evieWing Ire Ghatles and tattle
Ghaslles, vho are adverse Gisiumnta to the said dertrede Slack~
chief, and who cleined hekrship which extitled then te the

aaié lane clelaed by exid Gertrede Bisekohiel, mn said peti~

. idea the said Gerbrede Biackehia? reqmsted the deterainati
hao Cone ‘ot thn etecet commana aeertenen 80 Mo Lamm a emtene 63h
25 at of the Tonewanda Bund or Trike of Tndisnes)
‘couch Wide

tee sold p of gaid Gerteuds Blackebief and on er shout

the 17h day of Warch, 1934, proceedings were commenced tn the


guprene Geert of the State of Wew Terk for the Gomsty of
fete im the nawe of the People of the Miete of New Tork on
the relation of said Ira Charles and Rattle Gurles, br their

storey, Selsen To Rerrett, against 2 f,
the Ohiefs! Council of the Tonawanda Band of Seneca Indians,
and others, for a writ of pr and injenet te

vestrain end enjoin the asid Gertrude Blackebief fron in-~

rb or carrying om any dings in or before the
Said Chiefet Gomell'of the Tonawanda Bond of Seneca Indians
and te prokihtt and restrain the said ChisZe’ Ceemdl fron
entertaining any achion er proceeding or esting or iseuing
any onder on de lating te or effecking the seid reel

property.

m

Ghat on or bows the 7th day of Bay, 1994, the said
Suprene Gourt of the State of few York, County ef Erie, iseusd
an order enjoining and ing Gertrade Wlaskehie? fron

or BP g aay pe ding in or before the
seid Chiefs’ Coum@l and restraining md probibiting the said
Gxints! Gouned] fron entertaining, ings or enforel
‘any proceeding in relation te the lands above deseriked, and
that seid order was served epon eaid Ghiefs' Council end upon
| Gertrude Blackehief, That eaid Gaiefa’ Cousell obeyed the
ordar af the Supreme Court of the State of Yew Tork, County of
; Erie, and took no achien upon the petition of Gertrmie Blagk-
| che Tat let GA na cathe the ainyute extvting an to ommreniy
4 Gaceg wet ov the vight of possesion of the propelty involved.) That the
a acid Supreme Court of the State of Hew Tork, Smutty of Eris,
recognised the exiztenes of the Shiefs' Couhedl of the Tonawanda
rite by iasuing and causing te be served o writ of prokibition
, and rewbrained the Chiefs’ Gemeil from acting npen ssid peti~
tien.


Eee Mi

hon te cn tn aan dra Nar
end tus days prior to the tastitelion of ns oqkitt
9 <cit of promibities ao stated in paregmyh VIET heweat,
oy : din the Gourt of the Stete

of Tow Youk; Gouty of Genesee, by seid Inu thatles, Hattie
Gherlas,end one Samson Poodey, by their attorney, Heleon T.
parrot, agsinst Gertrade Blackshief, and otters, for the
of dng their ah Seies tothe land de~

BSP

sorted in paragraph FI hesest by the application of the

izheriteunce laws of the State of Hew York te the said lands

ead the parties int ed ar pretending and 2

tition of the, lande(Gwaed and corupiod by the said Anna Hoss Qa

: 2% the time of her deeth,) That te eald conse eas heard Oy

ene Noonan, Baferse of sald court, fer the perpose ef making
findings ond seid referee found, im aldition te a finding for
the portitden of said lends, that,

ee # the properly fy ef cuck 2 nabs
Set th comet be aveudily pertitioned «i th

Rie
‘faet eid findings were sppreved end adopted by the
sour in said scties and theresZter and.on the lath day of duly,
1956, jedguat was entered, in which 22 was provided as follows:
Qnderedy thet the real extate, de- 7
sexibed dn aaid judguent be sold in the i
Geenty of Geneees by and ander the direc~

tien of Jawa i. badeor, attcraey of Teteria,
Sew Work, wee ie hereby appointed ne Eeteres


and wan Givected by said court to sell the sams at poblée sanction
to the Mghest Water therefor at the extranse to the Comthouse
in the Gity of Betula, Goneses Consty, How Took, on the Sth day
of Septenber, 1936, at ten ofclock in the tenmmoen, (Tat the
said Guprene Cart ofthe Sountyof-tenases, State of Rew Tork,

aid aot at ony Vine change tie eaid order of sale oz, resbrict .
pote Sg eee rn) 20 ) bleh be |
coals H

iy peeved i


sitaste, Tying and on the :
an the coutiy of Seneses, State Bye
‘bowmdiod On the BNC
geuth by the biginay rumnieg fron te —
Bases Yorewanda Greeity on weet S33}
by sald Tonewemda Grack, and en the worth a:
by deed by Reber'$ Howes, and on the eS $ G
est by lend ty Seaver Blac "3h
Serty-five (45) acwee more ox ese
owned ty sey tenaae dsonnely tiguihen 8 i
with oll ip thereon. : qi aS
Bes Eons

‘het thereafter ond on the Sth dey/of Septenber,  / “4
3996, the said Zowes 4, Ledeur, aching as auch refeyes, above =i
woned, ond wider said onder of the court, 4i4 sell seid lant SS

— sb publie auction for partition therest/among the heive of

Kena yf Cus: the anid dese Houes,)ond the sane was at auth ache purchased
by the defendant Bettie Charles for the san ef

pees vd

“ef
Tae

Qre.

(an the esid referee sade sald sele in axcordenes with the order
and fedguen’t of the Supreme Court of the Gounty of Genesee,
State of Hew Tork.
a.
Taab thexeafter and on the D0th day of Gebobary 1936,
the said Jomes &. LeSeur, Rafoves, reported said exile te the
Sopresme Geert of the Couby of Genesee im the case of Hebtie

guid ropor’ ststed that the said Eebtie tharlles, iad

paid the folk owount of the purchase prict ahd sas entitled fe

tha dood thevefor when such sale we confireed by the sourhc’
at.

That thereafter and on the 26th diy of October, 1936,
on order wae antered by the said Supreme Court of the Goumty
of Genesee, State off Hew York, cuntimming anid sala end
directing the convaymnce of said property t the said Hettis
Chaves, defendext. ind thet thereagter asd on the 27h day


af Gobsber, 1996, 2 deed af eoaveysnce to the sald prewisss,
so prevented te ke sold te the di » Rattle Charl

was executed and delivered by donee 4. LaSeut, as refeves.
That sald deed of conveyance did not garport te be iemued te
2 member of the % és Geibe of Indians tet te be issued
te the purchaser at said sale to the bighest bidder for cash
aad te aeccrdanes witie-the tems of the order sf sole ond
juiquent of the Suprena Court/of the)comby of Gonesee, State
of Sex York. That at no ties either in the order of sale or
in the oder confivaing the sale id the cout over paca upon
the status of the said Wattle Gherles, 9 nor pase
upon nor make any order wihe ref: te here ship fn”
the Tomsemds trite of Indiens. ‘That the axid esle was con~
fireed by extd court med the dend tomeed end plased af rowed

ee i

af the Touasends tribe ef Jndions.
Wie ‘
That for a long period of Sime allotments of land or
dctarwination os to the right of eocupmer of tracts of land
in the Tonawanda Reservation have best sade by the Shistet
Council of said Tonawanda Bend and that seid allotments seve

to the atlotteas ond thas heirs the right of posseosisit of

4 withou’ reference te the states of aoid Battie Charles as a

tte ants hot aaid Ghiatst Gomacil of Ge Tonmwands Rand of
Sadians ws unable to make sich allotments with raopest to
the trast of lend occupied aad possessed by hue Hoses by
pensimn Of the weit a prekdbasinn tomet by | Sepvene Sours
ef the State of How York for the County of Tete at thet me
silcteet of the trast of lend soongted nd frond ty dona
Yoaeg ob the tise of her death bee been made by the tribal
comatl of the Tonemnda tend of Indien andorting to the
custons, laws end usages of exié tribe,


SHIT «

of the trite. Thet they bold o councll westing and im their
aeliechive capacity ate keown a2 the * Gemelli, The
oe bea B

pf ate? Comet sername the ‘etn fet Gitvabes the

governing wedy of the tote) The Chiefat Cometl as en

inebiiution of these Indiene ood the mumer of selecting
the chiefs exists now as Len gimage existed, (femeceipt,
pages 193, 126 and 162.)

Foon the Soiegeing findings of favs tho Gat
neken the foLlowlsg:

SONGLURIONS OF Law“

a Thst alll the materiel aUagabions of the complaint
have buon avbabliehed by esxpetent proof and by ededesiins con
tained in plontings,

2, That tha platebif! ie entsSled to the weltet,

“tn 8, on pred for in the emgata in We witons

That the seid acie axl camrepanes of anid property
aud oil provesdings leading up thereto and in confirasiées there-
of were void, wularivl end without axthecity and wither’ jurin~
diztion in ay person, court or offieer te participate in ssid
preceadings leading up te end in confivestion of seid salle or
cenvapauce of the exid premises te Eebide Searles, the defend
oot. Thek the anid agle conveyed no tithe te the said preniees
aed that the court ordering Hw eels theres! wae cielly <ithect
jretetiotion to sstderion ustd ula or to primed in oalid partie
tion action and that sai4 sels was in denogehion of tho ihighte

A to the Ja Band ox Tribe of Ttiw by tetetios
with the Gaited States herein deserihed.


Thet eaid sale was a inherference with the right
of the Gxlets’ Counsll vested by the lane an customs of the
Tongvenda Bead or Tribe to dehermine oll uxtlers of beirakip
ged Uhe aHlecaiion of land and of the right te coeapy and
possess portions of the a tion by ef
tee Tonswanda Bond or Tribe, and thet said salle and deed
exsevted gusweant therete aliessted the lexis of said ressrve~
tien and cooptiteted « taking of lands aid ¢ disintegration
ef anid resureation amy fron teibsl omurehip on woted io
then fon dine iomesorisl und guaranteed to them by the
‘treaties with the United States hereinbefore dssaribed.
. ‘That anid é sale and comreyance of said
presiges im the sameer as afersasid wae vieletivs of the treaty
vighke of the said Tonawanda Egod ef Indiens guarmitesd to thon
by the Untied States end couvlituted « vielation ef said trasty
te ‘the detriment and injury of the sxié tribe. ‘That the effect
of Yhe said porported sale we to alieuste avi divest the anid
Tonawanda Bend of Indlaxe from thede tethel generchig, ase ant
4 fon a by the s tyaskies of acid
band with the Ueite! States heretefors set owt end referred tc.
het the Sapzese Cowt of the State of New Tork wes
without juriedigkion te entertain the suite tefers auwtioned;
thet all of ite purported provestings, acts and ardera thereia
were contrary to the Soustitution and Lams of the United states
and of the treaties bereinbedere referred to} that thay eoustd-
tate on infringenant upes, aod Sevesion of, the inital rights
ond of te txibel integrity of sald Indians; that said ecite,
procendings, ecte and spdave wars, therefore, wold and of a5
affects ant that tho atbempt of ssid Supreme Gourt to assume
jarisdietion over, and te Intervene in, the sGuinietrstion of

Bx)


She internal affaire of anid Tonewmds ani of Indians wae

an invalid interfermes with, ad in contravention of, 2
governmental fsuetion of the United States; thet Jadgend
be eubered restraining ond enjoining any cotion preventing
or prokibitiing the tribal cowedl of the Tonammnda Band of
Indians from making an allotuest of the tract of Land pos-
seaeed an eccugied by any person or persons, ox by any court
ex office thereof,

a Tah by the Lows, ewetens ond weages of the Tone-
‘wanda. Band of In@lons, upen the death of a decadent amsber
of the tribe, the property of the desodent, including the
tight of oecupsney of traces of Jami beld wid egempied by
the deusdent, desededs. won the satherts side, and thet in
‘this cows, won the death of fon Moses, = Tonssarda Indian,
eseupying a tract ef land om « Tonewenda Iodiien Seservaidien,
rerade BE the denghter of said anne Hoes, was the
hedr entihled te the we and ascupation of the tract of land
involved in this ackion.

Thet the Supreme Court of the County of Erie, State
of New York, had so jurisdivtion to insu: a writ of prokitdtion
@ineuted te the Ohiefs' Gomestl. ef the Tonewends Trite of
Sndiane or to ony other goverving tedy of vast Tommmmmda Tetbe
eoncersing the internal affeive of the tile or dealing with
any Giepaters of title as to lend «ithie She reserveties or as
te ths right of seoupasey of any tracts of land citkin the
28 om with ee of property or the
rights of isheritencs ef the of tha! said Tonaxanta
tribe of Indiaas.

Thek the Sapreme Court of the Gousty of Genesee, Skate
of Hew York, had ne jusisdicbion to partition the lands of
the de Indien Reservation ser enter ai sale thereof nor
direst the issuance ef a deed of sonveyenes of any of the Lands
of said reserestion ragerdiese of the status of the parchoser
at any sale.


That the plaintiff way have such other and farther
velief os way seen to the court just and equine, =

That combs be taxed against the dafentant for this
ection. ;

‘That the court hereby néBaies furisdietion te uske
such other ond further onder aad fudguont ae may be nenessary
 carty ost the Sisxitings ant conclusions herein made or the

4, + a ee


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LUS, vs Hattie Charles
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®°: 6 oo “

Hefendant answered and ease was vemoved from the jury calendar by
Knight, dx, on the ground that elimination of the "feast" question alae
eliminated the question of fraud under whieh defendant was entitled to
trial by Jury.

Yherefore plaintiff again made a mation for summary Judgment on the
plesdings which was again denied, Burke, J,, preshdings

Burden of Proof

Point IT

fhe barden of proef is on plaintify to establish the ueagee end
oustoms of Tonawanda Band relative ta the descent of real property
siiuated on tts reservations

Pleintlee has failed to sustain such burden.

fo uiuderatend properly the testimony, we should keep In wind the
politieal situation on the resarvation as depleted by witness Nicholas
Bailey; Chief Hadley has heen eleoted Clerk to the Nation for 14 terms + « «
not consecutively, but as the exigencies of Tonawanda polities wavered
pack and forth between the "donkey and elephewt” as he expressed it. hs
position ia comparable to thet of our Clty Clerk or County Clerk, our
New York Seeretary of Btete, ov even our Honorable 0, 8, Beeretary Hull,
and Like the white contemporaries ia probably termed « realdetic poli tiotan
by bis opponents and a mtetesman by hie adherents.

The report of Genetal, Carehngton hereinafter mentioned more fully
saya~ page A7By

ere, of on all the reservations, the ghanging politico,

ioberests op anbitions involve changes from one parby to

enother, No ward politiolan, gecking small offloem, a

Little patvonege, and the control of public gid

nore shrowlly manipulate the vovera or pledge sme
favors for votes then the ambitious Indien obief."

G

te. ‘

With thie alight digveanion, “Let us examine the reeqwd,”

Pindasietts test whiness is Everett Parker, iia teatiaony docs net
pasteh Mlainetrt. (ir, 5-84) he anya, after a leading enentlon, that hw
hee beer tohd that deseamt of peaparty "gees on the other! e side"; wider
objactian Court asked pinintiffts cameely "How do you contend thet te
ninisathiet” Pisineitrls attermey eteted to the Court, '% dent think
it de ronaly aduioetiviea.* Thas the ovidenes of thin witness iv mil on
proving plotnettits cond.

Wetmore says he wos appointed clark Debruary, MG,

=e . top te fadhan Tgoeevetion WY paging, nee soretare:

(te, 20)  , You know there hag been « Clerk of the Tonmwanda
Bend for a goad many yaar aae
ds hove Hoe Beaty, vaee®
(Sy %8,34) Shown thet Fapley Sunfow. wee the Clerk of Counall im
1000 ond Reymond Moeea in LOG, through State Mections; bie testiueny to
nove fawovable te defendant them to plalew¢? ont shaw a eokiom maong
eon), isiaberrn amd the disgruntled sthhtade of the miaerity politioal, pare

hampownrdly voted out ef control of publde affeira om the Tomawends Nevervaw

thomas

inathar witnone, Norman Forker, father of last witness (Tre aly ity 40)
wou ghie? iwenty yearay plointhert a Eaidikt "A" fe 0 record of Chhets Semaninga,
fvom Hareb UO, LOND, kept by a chewk eheohed. ty. on (Pte OB) Miho,
Reiley was @leoted by the Nation as oLork im June 1038 for one year, Bom |
of whinewa saa sglegtad as cLovk Sebruary 1080 (1h whl be netdoad duviag’
torn of Heitey welek ren to Tune, 169)

Hoven Porters father of Last witness, etates he hae been a thie?
twenty youre, (pe 48)

4, You mey wtate whether or not Government! s Exhibit A dao

< - od of the Chie’! Cowl), ef the fonawonde Tribe?
i Hy


showhng

Oe

Of the date which da presumes to commence ay Maren 82, LOR?
Yosy March, written thei,

dat by when was the record of the Chiafat Council kept?
Different onede!

ua you bare « olen?

ae

Has'4t, the duty of the clerk de Keep the resorda?
a8, why ;

bo you kaow whether or not it has been kept by the
glovs of the Oelelat Gounetl?

Well, the clovk at thet time was elooted by the Nation!

plainly tut the Clove ef the Bead during period covered by

Exhibit A 4088 to date was eloated by the Matlon. umder State Laws.

(ps 2

tow G14 ha (Wadley) come to heve the book?
He was elected by the Nathony

ha whack?

Aa glen one year, one yearts tur,

What yoar was the

Ut was L087, I gueas=« LOST ox LR."

Did. Aone Menon bare any ohdldrant
Keny whats

Who ware her children?
 Rhere were twos the bag, Re age bags 4 Poodry ond Sertrude
he we

Koodry et that tl arivade) married Blackohtet ond.
Le Gerteude Blagkehior VAG 9,

Gortrude Blsckehtef 1a the deughter of inna Moses?

Meee

ana bso boy wae the gon of Pntlio Moseat

Oy. BLY

He’ was the oon ty a former marriage of Anna Hosa?
You, Poodays”

fad whet clan do you belong to? :
The Snipes ‘
the Sadpe “lan? : |
Yaa, !

Well, In the Qalpe Clan they heve more thon two Chbetss

ie one Glam, the Boaver Clon, it hee no Chief at all.

tau noulant & say they all have two for oagh Ohiet,*

the opposing poldtival element moinly coneiete of the Sndpe Clens

{ow Ge)

NG, What @L¢ the Chietst Count) do wlth refarenge to
alapaten wrer Glaims to Lend? .
Wabi, they were supposed to Bettie dLaputes, that is

Ag
(pe OM eccce Lf there Laan
Da)

a
Ow La yo savtne kaw djepabes duving the 80 yearn you
were Ohhet?
A» Mot tiie Kind of o paems
oy Wot thie wind of a eave?
A, 86a g

(os

(pe

Lire

(ie ey

Be

Ros there boon any tiwe during the pact MO youre you
were AO 8 manber ef the Chiat Counall?

Noy wire!

You beve boon 4 moaber ALL the time?

Zen, wily,

Ane? aria the Mae that you hove bows a member of the
men. have theve been any diapatas aa te the

winevehio of Land upon the death of a party?

Cake?
Hob thet T keow ofy mo.

Sow, you spoke abot Gertrude Binekehtefts relationship,
the wee the daughter of the fleet morrloge of Ana Peary?

Peodiys

Afterwards waown op dae Mana?

Erving

Who wan her Sivat pshand?
Thong Pootrys

te he Living now?

Hey ho Le doud,

Whom @4d he diay, shows?

Shy peobably been desd abowt #6 te MM yeara agay®

Welly she had boo married te Thoma Feodey before she

hod been worried te Pillip?

Rau

Tere

ask how wemy years waa yar fathow a olomcy, ta the

e veadliontihon'

beat of
Ad Cuhkdal tS tell yous

wt ho wae clerk on several oooaglons iy severe] different

porioda?
Samy wha

And served owt hie tera each time, didnt he?

Mew
How @id he gob to be Glowky
Ho win wlewted from the Vetlon, the Tomawenda Geneon Hatton.

At om amma) olocklea?

Pea:
ited om the “iret Tuesday of June of eee poor?

‘om :
And. that iu the date praseribed. bys tha Laws of tha State af
. ow Sore for the aleelion of offiaern of the Tonawands Bondy

he 1% not?
Ege Tee

Xow. km thet de the dete, dont yon?

The election? *

q

Fe abide Cher lles Paves wan the fivah dheyate?
tg

“At the time of Philipta denthy Tom Poodey wae ool
Aiving? Be lived longer thon Paiiiy?

/ ou knew tha

“Wag there an cleotion om tha firat Mesday of June, 198e?

Did you attend that election and vote at Lt?
oi think I did.
. Mou have ruin for offive at these annual elections of the

; You, Ly
: hese elections wera held on the fret Tuesday of June

“Wader the lawe of the deata of Now York?

< don't know, must have been,
t, dent t you?
Maat have been the New York State Lawe.

COM

Tonawanda Band, have you not?

 ghen year?
Xoay™

Were you a candidate for ony other office?

ard

What was thet?

Preaident,

Prealdent? Were you a candidate for president at the
annual elections more than once?

twiee, I guese Lt wags

You say the Chiefa sometimes settled disputes on
lisiag 70 of helrship, Waa aay such dlapute septled
ring your perled of acting on the Chiefs! Couneli?
not this kind of sage,
re you were om the Counol] for 80 yeara, abewh the
last 20 years?

Yes, sip, avound theres
Con timiously, were you mot?
Yea, ole."

Withess also admita inetliuting a proceeding in Giamogates Court»

Genesee County, te estate of his deceased unele and asking appointment

as odminkabrator.

Was there a time, Mr, Parkexy, when the reservation of
the Tonawanda byte acted under the State Laws with
roferenes to Tribal. affatwe?

i think they did.

Yeo. When was the time when they stopped acting under
the State Lows ag a Telbe?

Well, when this case started, you mea?

Well, any times

Yea.

When was that?

Muet have been almoat four yoare ago thia case started,

when thie oase stertad,

Did the Chiefs! Council at any time pase ony resolution

f?

Me .

vefaeing bo proceed under the State Laws with rafcrenge

(pe 88
© 8) oo tether affairs, and when wos bhov?
dy Avownd Last Pobraary.™

Ou pages GO and 01 witness says he Inherited fvon his father and
thet some of nis prowat Lond hae descended through four generatdone
of mole helps,

Page O4, hie attorney uakay "¢, Was thet (Survagetets Court)

methor ever sulci thed to the
Chiera! Gammel for determination?
Aw Heat
pe 98). ,
iQ, They ware nob advieed of any diapuke? The Chiefst Gounod],
is acriaed of any depihe, were iv?
Ay Meet :
(ps ae)
io, Pred Parker was appointed the admindetrater?
Aa Regs”

Leonard Sehnelder, thivd sad Leet witnocs for plalntirt, brtetly
postifies aa follews:- tae been Chief 85 youre, aged 68, (rx, 08)
ity the death of a wen poaseueing pre@nerty: the neomat rolative of
tho doneased hesy whet we might cell, Surrogatels powers for the reason.
that the dLapoattion of the remaining property, which originally belonged
to the degansed, goes through the hond¢ of the eald nearest relatlved
of the. deceased.”

Cpe ae
i ® who are the helen?
he Hels ene ts Pres: the some thing ea wo compute fo GUY eeees

he Welt, the beovherdy the ehildean, the next of kin and ao forthe”

The tnherniption of Padang s sein Ete witness from adding
the word “inte! after "oun", :

Atter iach Leading and tntewrapbinn “at phalnvler!s omnesel et Line ¥
whinasa wes fanally imeuced to anavey in Line 12 "the mother."

“a

12 J

(pe 00. “wo » Fo any thet wader the ugage of the Tonawanda
ke ered peoporty descends te the helva?
* ee 4 Leaving hildveny ohare woke” Pope 4 gor
Ae %0 a eniad Arent,

thie expresies the uatwanueled apludon ef witiese Gohneliden
(pe 207) whimess atotes be a onstoyed tn, BUEfWloy bas been away frei
the Reservation twenty-five yours; attended Counett neotings whet held oa
Satendere, thous farther testimony 1t Le sabuitted thet a perusal a ‘the
*omalnder of witness? tautimony appears wore f tle to defendant than te
PLeiaGhel, Not one of pleintrtls wlineeses poneonnes the wuslitianktonm
hodisneny to pwevE teages end duaboty No epecifte acts were proved hy
pLakablet, BU iho toatinany regarding the -uewtlon consiete at CaReRhM sy

Plates s witiesces howe mot been shown to ewe proper auetdtlenm
thon i

af plalntitets temtinony an to oustem de paced UPON oxperbon tial,
mualiviestion then each quoldfiention hea not heen shoms Waietheet a abies
witiess, Foal Parker, says thet during ble who'le wKPorLeACe NO ane aim! ar
to tate over gone before the Gounod. amd thet me Minklow cope has aver town
Seelded op fer ae bo know, Platatirels mihor wltneswes abe ao oaee Deotght
before the Couneta similor t the one ot bry

Tf haved apon opteden then 44 appears that they have ae knowledge of
Similar casee end have wot proved qustom and uenges of the tele by a atneke
cane passed tigen by the Counedl,

PLOSMtLe? wuet cont orlmarig wren the atrongth of ite oom ase and
Het pom any aliauad secknoas af defendant! aso.

Defendant's aotlon te Giamlen the eompledimt mate when plalawire
reated (Sve 218) should have been grnbeds

The teotimeny ef detendany a wWithest, duroa iy Poodsy, the Preatdant
of the Shiefat Counetly oleeted by popular vote of the whole Reservation,

pre

Ais

ahown thot be de qualitted to spook v4 cuvetomn and usages of the Tenewands
Rent ond de fontidar with the lee of deasant of reek property oa applicable
$6 the menbord af such Bens

Rie Yortdwony showld be vood in tote without repebition in a briefs
The Court he. eospectiully veewwsted te wad bin whole testimony, parthavlerly
poges 11% to Vy both inclusive.
(px 288)

Woy Bow, wos there ony stability (sce State) that you Imow
about, dn the seaushey a! property, of property passing
by dedont undies the old ragine?
Ay Tuere wae me peau iy.”

snowing thet the Tonawanda Band ie wholly dependent oo New York Gtate for
Loe noketyinies
tae 440)

Hg, Ag LT wnderetendly from M57, practieally 10? te date
there has bean two ayebens in aperatlon? ;

By Yea, thay sombined part of the white maghs system and

thay veteined the old Indien hietwry ayoten «"

Witness sume up the sdivetion on ereasexcsinatien Cp. 188)

Ag & soa dt, the Ohdetet Cowell wider this system bad some State
wtbortey ond elective offleurs that gous with thet, and wo have
boon operating since the oatebliebsent of the Tonawanda Notiany LOOT,
? snd the ‘Laws of (the of)isdle We have operated the whole aatire
Motion as ib worked under whe syste up to this times We have a
faction tying to keep in control ef power ond some eleative offices
(ps 180) wre added on to the
he
“" Ghéotet Coumtdly ond bevsuwe of the fact that they have ngt heen
able $0 get the power, they would howe as go bad one hundred
rare ago, book to the old ayeten without oy aurhordty from

not @
aovtnin minority group. They won't beve thede eye tomsveasaa™
iowedeme Bathoy, Clerk 14 teraay 1 year osch, ond presmit clerk, elect
od Times 1088, romstoabod Jamey LAG0, (ne 188) veeltes various offices MLed
by popular ballet vanualiy under Sew Lore State stitwhess

13

a4 ‘ ‘ , ;

ig, Ta there sny woy that a peroon, chief or otherwias, can be a
h pgosiient ef the Gomme. except through en cloctlon?
® Dh

(oe 288)
NG, Mew, is there say way for a. clerk of the Chiefs’ Comell.

to be chosen omeept by an elactlen?

Ay There never has been, ;

G» Did you ever boar or know of a vherk of the Counel) being
agpolabed?

AD Moy except “hen the Clark tw ahsent et the mestings thoy
appoiat @ Cleves pre ten for the day."

Re daseonh of veal property Gilet Balley pute 1+ dn & nutehells
(pa 180) ;
iQ, Bow, as to the usages and gugtomd vagarding the descent

of reak property wo
Ay Desganb?

AL A petition made in the Surregatets Court for the
apnoimtnent of an adaialetvater, and so forth, complylag
ahth the Civil Practies®
Witmean differentiates (pe LOY) betwoon tribal Lineage which is through
tho nother, and deseent ef property to hedwe, if no wilds
Plaintier in ite brief makes much of Golef Balleyis teatimony at page
168 eb gage sot in ootion by o question of defendantts attorney at page LOS,

Witmess anye im enewar to the Court, "—.—. the gontiiok was in the parwLetent

effort ood ibe of cu bad
that khey are stil the Law of the Indiang.?

(ny 284, 108) ehows 768 in fever of belag governed by Byate of New York
Lawes ‘thie agtcoe wlth testimony af President foodry (pa 127)»

Houvy 6. Menloy wae als oahled ae a whtwess for defendont, Urs, Money
io generally conceded to be one of the few persons having authoritative
yowledge ve the biaterkgn background, weages end cuetomdy ‘end the laws
pertaining to the Irequede Indlengy in which te included the Tonawanda Bawd
of Seneoa Nation of Indians, it would be auperflucue to quote any of hie

Jo

Ly

tutinoy wein tele Peoetleslig avery worl ie germane to the Looue
and GhOGLe be woud in ite ontiretys

To mintedees, in TG aod 1908 the howe af the State of New Foul
qoutreliad the desoont of real property alvwiete uson the Temewande
Reservation and ooned by inggyteaak wmbars tharwey Ft plainly aggenrs

thad plainwise hae fatlud to meat the burden ae prot care wpom him wy!
aad WAH ett easton tho ovidanes of defendont te overwholuingly of

gonna woken thm that of Miotaw aad phew that weak property Jods

by @ togenent person an madd Toneworda Reapewntion in the ehsence of a
WEL poem to the bedi,

is™

Pe Ilu- Yl are MATE tony

Thharbaraltte b-Loly
0

Mr. Manley has Point IIT:

4

48

partition proegeding, Either source of title is valid, So far

as concerns the juriadietion of State court to conduct the partition
proceading, it 1s conferred by Ny Ys Indian Law seotdion By, ALL
decisions and all history suppert the congtiiationality ef thet stetwhoy
The defwndant!e eledim is valid,

the egadon for the request of seid Band. for New York protection arose
from thea treaty of 1868; by the torme of said treaty all Tonawanda lands
were Gispoaed of end Lis members directed to move west of the Missiaslpnd,
River, the tenewanda Band was. not paprasented or consulted ot the making
of said trenty oad refused to abide by ate terme, The plaintiff, through
its offlelals and agenta, was active in the negotiations involved in the
tranater ot Sonewanda lands to Ogden and Fellows, but also actually
drafted; end entered inte the omoxious treaty of 168, Seid Band fom
over forty years prior to 1830 nad amiaable relations with plaintiff and
trusted and relied upon the treaties get forth im. the complaint herein,
When the Tonawonda Bend learned of the double-aroga the reaction wae auch
as huson beings have exhibited through o1. historys ell confidence in
plaintit? was lost and resort to arma threatened, The Band cast about for
frlendss only certain offiolals of New York State took up eudgells in ite
bebalf and enrried on a batyle for 12 long years,

Lt waa not untdl 1867 that platniier, ‘whteh drafted the treaty of 1858,
unigraclously wade reatliution. by the treaty of the former year, In the .
meantime the ehlefs of the Seneca Nation, without whom 4t could net have
been. confirmed, shared the odium with plaintiffy it wes decided to gat
rid of the syatem of government by Chiefs ov curb their powers, ‘the
Cattaraugus ond Allegeny reservations whose rights had been sold dowh the
river by thedy chiefs roge iy arms and made such a clamor that pladntitr
entered into a further treaty with them im 1842, and added further tajury

No pe Th 4] 2h

; . 4B

to the Tonewenda Band by ignoring 1+ and econtieming as to such Band the
provisions of the 1858 treaty, Thus the da Band b distrust
ful of the Catterengue and Allegany tribes ae well as having its former

mistrust of plaintiff confirmed and enphastped,

Peior to 1848 Cattaraugus ond Allegany tribes abolished thee
government by chiefs and also being mistruetful of plaintif?, petitiondd
New York State Por a form of Government which wes enacted as the Charter
of Lede and uider whieh they ore still governed, seme being the Lawa of
Now Youk State, The Tonawanda Bend amarting under ite treatment by 1848
treaty, and being susplelous of plaintiffy ae well as dts brethren of
Cattaveugus and Allegany tribes, held aloof from the Charter negotiations)
pleintiM made anands for its former hostilaty by the treaty of LAS, but
the damage had been done, and sald Bend continued enaplolons of plodatiers

hy thie treaty the United States. Goverment disposed of ita ow, mighta
in. Torawenda dands; plaintitt used moneys of the Band to buy back the land
with the proviso that title should be vested finally in the State of New
York an tiugt, of course, for the Tndione,:. thereby United Stetes Lost at
ite sontvel over Tonawanda Lends and same becane vested in New York States
Therefore the situstion ef the Tonawanda Bend differs and atill difterg from
that of any other Band or tribe of the United States. ,

nM ie conceded, of gourse, that United States Congress cawld and oom “
pags cértain Laws relating to the Band, bat in the absence of se dolng New
Yovk laws relating to the Band dannot be questioned by the Courts, Ho:
government ia able to teke from an allottes or hig heirs his or thety
individual mighta in en allotment. —

Ae oon as the 1O87 treaty went into affect @ general convention

43

, ’ . “a

ov the Zounwanda tite wan hold, (featdmany of Chie? Batley, poe Ua

202), snd the taad voted and dedhded te eurtell the wlghba of be

Chietn. The wiateunt of the Bond toward plaintit’ oth) oxbiated

ood the working of the 1048 Charter had boon witnessed and the

waaeet vRG mele to How York Suche for appropriate Leglalation;

thie wes foLhowed by the enagtnent of Chapter BAS, Laws of 1001,
Parendant! se Sablbit 1, o petition te the Legislature of the

fitete wf New Yorks dated February Ly 16, with praposed B41

vest ited 43 the enaetment of Chapter 06 of the Lawe of 186%, In

the bendwriting of General Why Ga Parkers the Avb ae finally pecsed

follows aluest verbatim the vertlage of Genera], Partkarts comemioations

the LOG atetmte, aubstentiolly re-enacted cs Chapter 8) of add,

with ooghpional auendiments hee govermet tho Tonawanda Rant to the

pranoah anit«

Mole

’ . °

45,

In studying the New York cases involving Tribal Indians
within the Gtate of New York, attention is dalled te the cleavage
between two lines of eases; they are distingulshed on the one
hand by the Juriedietion of certain Indian Peacemaker! Courts to
determine Indian righta to real property, and on the other hand by
oases relating to property upon IndLar reservations in whieh there
exist no Peacomakerts Courts, ov such Peacemaker! s Courts aa do
exiet are without authority to determine matters relating te real
property. There ate certain dicta in and ebtationa of various cages
which ave confusing ond apparently inconsletent unlesa thia
distinebion la kept In mind.

thers is no Peacomeker's Court on Tonawanda Reservation
with authority to determine any question relating to title of
fodien lands, Such power has been withheld by Bection 46 of
Indien Law.

POLED I¥e

The Righbte of the Toaowands Bond have met been
affeated by the partition actiow.
the ole? eontention of plaiagit relates to the partition actler
heoughs by deveniont Hottie Charles im the Sew York Ctate supreme Comet,
ginining tit the Lagol affect of qigh eotion hos Sikensted Lands of
the Tonkwinds Sesevvetlon and teen fron, the Lenawande Bond of Tationg
curtain at Ste attributes of severehgatys .
A’ betat reference ty tae bietowy ef Ue portitien agtion end the
dew perbiining thevete whowe the piedaticite dn the petition aqtlog. ed :
the gight t bring moh aetiony the question hae been decided by this
toarhs The Sdentioal goutrovertuy Lavelving the some facts was before
thke Vouwt in LOSdy anon motion by dertvmie Blegkabie? to transfer the:
prohibition proceeding te the United States Court, inight, Ty, pveeiitad,
BAR y i id Taiiod Btates Metedet ears te one of ame sEriatiareaes
he Lights « « « « « @ Ge Sound om Uy By fe Ae Chtlo Bey

Bots #is thet seution dwau net confer ee ton thie

twnet to jake comidesioe of an actlen dn partitden In a eae

sud aa ie proaca ted hotest
The opie aether Boyty

"Te would acon beyond question thot the ponding piartl then

sgtion can be procnguted ty State Courts end the rights of

the parties detearctagdsasenans

fenple om vol Charkon vay Blackohtel, @ Fats Sapp, 208

The wow @ sontesbed mathe, but no append was token from the deatledon ap
Judge Soight. Tt would appwar thet the Wight to being the parthidon sotlen

|
io ves jaichta, In ony ovent, to Clad for plaintii? herein nenesehtatae

the voverdel of the devlolon of Judge Tavlebts

Wucge Haaoly ta Ue be Vay Senoon Aationy, O74 Fads O46, aayar«

He

, . at?

Congress hae not euthowlaed Individual Indians or the Tribe to come
into Federal Courts and litigate thelr controversies with other
Indiens In reletion to property rights held by then in severalty
oo in common, ond im absence of aongresclonal action bestowing on
individuel, Indians the right to litigate theie property rights in
the Federal Courtea, the Federal Court should not aseume jurladietion.®
The partition action was brought under Artiele 64 ef New York Civil
Praetica Act. The defendent in thig aetion wes e plaintiffY in the partition
action. Shoe was a altisen of the United States and entitled to oll of the
rights of any citizen, Caucadian or otherwise, and especially authorized
to gone inte New York Courts by Seo, 8 of the New York Indtan Lew,

in drafting the complaint im the parti tion acthion plaintiffs therein
had especially in miad the provistons of the United States treaties with
New York Indians, ad well a» the provislone of said Civil Practice Acts
they wove fully didvussed in open Court before Judge Knight, and by briets
later subalited by opposing sounsels

Plaintiffs abierney alse gave ane attention te the question of

negdessery and optional defendants, See, 1017 makes certain parties
necessary, Geo, OBL provides thet optional perties may be made deferdanté
including "or other person having a lien or interest which attaches to the
entive property." Now thera ore three parties who at the option of pladinettt|
could have bees made defendanta, vige United States of America, Btote of
New York and Tonawanda Baad of Seneca Nation of Indies. Vhese parties

were nob necessary under Sec. 1OL? or otherwise and plaintitr wee under no
obligation to bring them in, aud none wag brought in as defendant, :

Now complainant argues that the rights ef one or more of auch optdonat, |

defendents have been adversely atfeeted, A a matter of elementary Law & |
person not a party ta action cannot be bound ov prejudioed by a Judgment
in such sottons
tn order, however, further end absolutely to guard the rights of
persona not made parties, Sec. 1OR1 specifically provides: "a pormom, « « »

$7)

o
ABs

who t¢ dot made a party te not affeoted by the judqment in the aatLony

Hesse 1088 read in comjunetion with foe, 1068 alse speci fleally
axcepta fvon the effect ef s judgment any ond al. parsons not made
parties to a partition ogbhons thio being the law, Lt would seam that no
argument Le necessary te show the tmvelidity of plalwiiitts oledu.
Relthor the United States, New York State, on the Tonowande Baad of
Sengon Nation of Tadlens hes been affected by the partitien section, snd
any rights whieh they, or either ef than, Bad in the aatd prigerty prior
to the partition action exist teday id the dame manner and ta the euae.
extent ag before dueh setion was somnongeds

tu Uy Gs ve. Condelowing B71 Uy O. 482, olvad and relded upon Bx:
plaintifels beter, the Court says: “Ginow the 0, 6, wag mob & party to
the previous mudt ae ¢ 6 « Lb cannot be Wed thereby. Turther, "The
abate Court hed fur§edietion to entertain tha snit and procwed to fadguent
and deortne®™ .

Perweos not meade parties im a parbitlesn agiien are not pened ‘by whe
deoree, Tagden ve Potlion 77 Ne Ty Mie

Piwntive v. Burnham 100 Me Bo 1
davete vs Monkwvite, 859 Supp, 39, Loe

ave all awthordthies thet persons not made parties in a parti ton aetdony:
are neh bound by ony deoretts

tu Phagosh v Benson, 148 Sepp. 436, toad property in or to whol
the Kontank Tribe of Indions had « posslhle interest, was sold eb puiblite
jodiolel sole; the tribe not belug & pertys the Court said, "The Bomtouks,
Yothe of Totiens not made 8 parby, Uhete Was moO sdjucieetion ae to the |
webont of their righte, if any.’

Paragraph KIN ef omended complains slieges thate

“that at the tinue of ‘the otter of amie by the said referee ot

audd propertyy the attotney for the pla aiitte in the parkition

proonetinegs Se dente indions would be pomitesd to ide"

ge

nwo 49,

A statement in the form alleged wae not made, Gald attorney ald estate
at the opening of sald gale thet no pergon was entitled to held land pon.
the Tonawanda Reservation except a member of the Tonawanda Band, and
that the property was offered subject te all rights of said Bends the
property wae so sold to defendant, who ourchased the seme with full
knowledge shereof and of the Tribal rights; defendent concedes that the.
property was bought with fai), Intnl edire of and subject to the righta
of United States, New York State and the Tonawanda Band.

The Peot ie, and this defendint concedes, that the resk property
in question ia still as ever, tribal property; thet the rights of the
Tribe have not been diminished or affected in any manner, and that de-
foudent ts entitled only to the right of use, occupancy sud possession
thereot, subject in all vespects to the rights of the tribe.

fo the. Telbe 14 18 dumaterial who possesses and ocouples land upon
the reservetion as long as such occupant ie e member of the Tribes Be
aL, jombers of the Tribe have equal, rights and privileges. The Trtbe Ls
interested only when some intruder or strenger to the Tribe attempts to —
settle ugon or asovire some interest in Jond situated on the reservation, ©
ALL of the cases whore plaintiff has interfered Le where white persone
have by Diilegal or eae Rane acta sought to acewtre righte upon. the
reservation inimical to Teibal rights, ‘

Xt ie mot denied that United States hag the power.in Its wiedem ta
nde Laws regulating end governing the rights of New York State Indiana,”
and thet if end when so made such laws become paramount, The polimt. fay
however, that the general, government hap meade ne such law or awa, |

A davefal study of the United States treaties with the Seneca Nation
and Tonawanda Tribe does not ddacloae, and plaintiff ia unable to potas ous
in what menier the reservation ie not Intact, how ite rights have been,
inpedred ov in what wenner "the Genesa Natien has been dieturbed in, the

frog use and enjoyment of thedr Lada,

$-G

ery

Tt follows that neither tha United States of Ameriea, nor the
State of New York, nar the Tonawanda Band has suffered any derogation
of its rights in eny wanner whatsoever, and consequently this aetion
muet Pati,

The Tonawanda Band has nob requested this action to be commenced
end there de no ovidenoe that the Tonawanda Bend has complained of the
action of the New York court. (The Hand is a separate entity and within
the law ls entitled to deelde in what forum controversies be had) Ag
aA aabter of fact, the Band, both by a large majority members of the
Chiefs! Counchl and by seventy-five per cent of the electorate (Tr, Ley
164-5) ate in arms concerning the wenner in which the wishes of said
CounoLL and people have been ignored ta thia matter by the United States
Government, and are strongly againat. the prosewition of thie actions
gald Council, and electorate are almost menduous in eppreving the manner
in which the allotment tithe to sald property hes been quieted and made

secure by the New York Supreme Court.

POINT V.
Concurrent Jurisiiotion of the United States and
the New York Courts.
The New York Supreme Court has conourrent jurisdletion with the
Federal Court ag to questions invelving constitutional and treaty rigihtds
i, United States ex rek Keunedy, supra,
2, Bx parte Martin, 180 Fed, #09, 214.
6 Haten vs. Duckman, supra,
4, Matter of Printupy supra.
by Ute Pleasant v. Gangworth, supra,
6, Bty Loula vw. Hesterly, 98 Aric, :
As, the Now York Courts have conourrent Juriediotion with the Fedoxal

50


he”

Courhe we aobtera avelwing cansbh tationed and treaty pighte then the
Court whore Jurtadletion first attaches, sequives exclusiva OMT,
of elt mokbers dovolved ia the cases This ia a rule af wndivergal
apwld en thors

Arace v¥» Manchester, 12 Pedy S4e

Shorea va Torry, 26 Pods SOF

Helueg v. Kawaony, 4 Gay 386

Poster va The Rieherds, 100 Basse

The wame Todted States qeatles pleaded by plalutiif’ herein vere
pleaded by gextain of the dafendarte in the parti tion aoblon, werd
paosed gen by the New York Court and are. ves jel gota,

et followe that the pertitlon action waa propery beonght dn the
New Yor Court and that this defendant agquived good title thereat to.
the allotment.

POING Vike
An tndividaal Indies has the Right to Goavey or Devise faa
ALietwnt to duebhor Mowber of thea Tribes

There vooms t be om eppaten) at puton ef the rights whiok
on Aotividesd Indien slietter hee ia a tract whiek he holda wader
alletenty While he may be a tenagh im common Of the waielietted
Futbol, Leads, he dees not have pre-ogstion vLghta shavodns

He doesy bovever, upon the Tonawanda Koseevation (ond probably om
ali. Hew Yowls Reoervations) hove the checlute ond auclucive night of
pousoanlon, coaupeney end User of Wie dnddwiduel allotment, whieb esmagt
andex ong aiveumetances be taken fvom him op pis helites

Ut was the eurldeat custom thas upon marchige the tmeband cane te Dive
with Whe witela @long ia the some Wiowe hase" ox in the same villege 9.
coiloction of tesens, aad he bavone for OL) practigol purpoees 4 gomber off
the wifete olen during the Life of the wiley eho children velonged to the

67

y o e

’
: ‘ bay

mothorts clon. Ef the wife died flrst the husbond returned to nis
people, (mmless he married another member of the clan), The ohtidren

took their mother's lineage - + + ~ = nothing more, Any property, axdept
the few personal utensils, clothing and weapons, was at all times Clan
property and remained im the Clan, (mbree, Indians of America 1929,
pages 108, 170, 178). Property was not tribal and the Tribe had no
Jurisdietion of ¢lan property, The elon bad the right to leave, or
secede Irom the Tribe.

There never was descent of property cmong the early Indians, Land,
or dominion ever Lond, wes Inconesiveble te the early Iedien minds 1%
was for the common use of menitind, bestowed by the Great Spirit. Tn no
event could the possesaien of any property pass from one clan to another,
except by consent of the clan having rights of omerehip, Such were the
sonditions prior to conquest by Cauoastans,

Later by degrees Indiens had settled places of whode, Yoon marriage
man end wife lived separate and apart from the cleny. Lend became aubjogt
to individuel peasession and owmership and upen death of men end wife
descended to their children or other heirs,

Lineage of children for sometime continued to be case through the
mother, but even this emong the Tonawanda Band practioally ceased to oxlet
mMOnY Yours ego.

Later the Caucasien by conquest became the soverelan of all land and:
Indians were confined to Reservations, in the great wajority of eases
ousted end moved far from the Lends occupied by them from remote anthautiys

Allotments did not exist until the Tadtans were confined to Reservas
tlong; then allotments were made and properties set off in severalty to
Indian members of the tribe end each allettee had no further clad or en
the tribe for support or maintenance. He was obliged to extst from the use
of his alletted lend; thet failing, fvom outside sources. ALL clen

a4

affiisation dwindled away ond became a thiag ef the posh, ond proneity

no Longer belonged to the lan, the tlhe holding tn common unallotked
property oniys

After Individaal allotments were made and permanent right of
possession, giver, each allottes possessed 2 castle of Iie ow, and the
ruostion of descent arose end developed,

Indiana, like other bumens, are prone te be governed by delf~inheront
snd deslue to valee foaiides and pass on thebr peaperty te their Linea,
helva, If one died without hele Lond reverted te the tribe» otheredee
aschented, The trihe netther had nor took interest in descamty except
it must be te a member of the tribe, Descent paseed from the Owner y
tele or femelle, to the heirs of such omen, (neat al, to males), Guok a
syebem Was ond is founded on iuetinet and common gense, Were Lt not BO»
no incentive would omleh fer the lmerevenent of rect, property. Et an
allottes knew tn advange that oll butidings ereated and improvements
wmede by bim were to be ewerded, not to hia ow ebiidren, but to antire
atrengera, sll spirit of effort wontd Gunter to olat ond ble holdings
deteriovate dn value ond usofwlnesa, Am a tpthe or State can be mo
etronger than the sum of its iudividuels, such « theory ag plaietite a
counseL expounds wad ba, Lf practi aedy of the greatest detetment te _
the gonawande Gend oF ony other sociak«politieal orgenlantion,s

Im wb: hte toey Ao moh system, oF rather nek of systeu has extoteds
it de the eyoton, however, that plaintity? 1a seeking to folet en the
tonawinds Bond, Tt ts ingonwelvaele thet one per deat of the one madooa :
‘thirty whiten people donetituting plaintirr wowlds if awere of wawt ie :
heodng attenpted, be favorable to. sugh a cons traction ve the oworts

the claim Le made by platmtif? thet descent of Lond on Tonwwenda
Resesvetion Ls through the mother only how beeeless te this ean be
voolived from the fact thet nearly al), eclginnw tribal alhetmente to

6S

Shy *

individuala ware made ty male members af the teibe; the elabte of
nearly GL preent owiere of land on the Tomawenda Reservation howe
boon dewived through desoont from such sole allotteom,

the Laws of 1049 (Chapter 480, Seotlon Y) readat«

Toh. teibed ar bands of Dadiane whe own and ogewpy Indien
goaorvet¢lone within thie etete wad told londe thareda on oommon
prpporty e¢ « e a « » REF Mivids such common Janda and diotir bate -
aad pertioion the some « ae + » WO ad amOewt ridows ov

Thin woo the expression in words ef the eustoms ond usages of the

Tobe and shows the growth ond development of the dee of parwanont
ormershio thvough « Long pxouasey

The theaght af thie permegeney of tenure confivamd in the printed

page by the Laws of 1040, 4a carried through oll cubsequent Logim@lation
aad Hoe beeowe the settled Jaw ef the Tonawands Bante I% de sonoleoly
stated in tha affidavit of Wielt Radioy, ued in oopeeltion to olatatiitts

motion for summery dedgmant ond forming %* part of the record im thle aawer«

tow chowh o cenbury allotmuta of lacd were made by the Shieta
Couneh), of fonewenda to vorlows mewbore of the tribe: smch
aLiotwents gov bo the olletieos ond Ghede hebrs, the clan of
poraenaa) possenmion of the alletied phet: ao such elonest
whem onde made aowlhé be wevold by any parson ex body wel evens
the Chiefs Goumelt hel me wight to iaterfera with or take awuyr
sugh eligiment from ong Deadly or bie Laetul pedeee!

The woport of General Cavelagton further aoyw ab page 4abe~

athe tithe to these rovervetlone te in the motlom « « « « Book
owns te uulivided where ungolntely. fodeomedent of the Url tod
States ox the Btate of Now Yor, The ind viduole, however, galy
bold « Poo aquévealont to the aunershdp of the Load they Lapwovay
wth pawer to sahil or deview ameng thede awn swe

pits % moh Ge
evemgatas Lb la a good Hitle, onation LipeL?! oan net dleturt Itty

SK

P

Pome Var
Sodividuel Indian bes the Bight to Convey hie
Aldgebmaat Go another Heaber of tho Tels

Plaintiffla tele? on page TL" quotes:

Tha oo puTEAse, Cet, Leade, oF othor conveyance of Limday

or of any tithe or whale thera ley Q i ’

tlhe of Indione « « « « eholt bo o add a Law oa :

aoulty, ushens the same bo mode sonty, or convention, entered

iete pursnent te the coum iutson' ‘ :
The abtomey oveparing plaintistts beef has fagmhtlyy mlaquoted ond
warped to the benet{t of hie alien’ the longuage of the ptotute, Ag
cited 1 ie oulowlutad to miolosd ant @ecehve, A renting of the statute
fia foros since dumm BH, WSd, end etl in force dees agt contain anythiog
concerning soy individual. Indlen.e The wtatate roads, Mint Boo se « #
couvepenioe mf Llonds or of any title or lain therete from any Indien Vation
or Tetbe of Intlers eto, This de o vital mlsometotion tending to boloter
pladatie??s contentions, bat the touayverbiage hse the oootwary effect, If
no sonvagunge teen Yemy Indium shell be of omy veldddty, tha statate would

Lert

hore BO tondy

Phelncitt clee cuptes sad argues oe Pinal the atatement ta the ophutan
ef the lowed Judge eromiding ab the tele) ef thie enao, reported dm

BA Paty Ougpy Cond) pe S40 a8 foower~

fan individual member of tha welbe qaanet convey title
to any partdawler treet of reaervetdun Landa”

giting Us 8 vy Boylunm, 260 Pods Supp (Bd) pe LOB, Uy / 77
th te tome Judge Manton used these or somekhat olotiae words da the

Boylan opinion. Sy f py JV

i¢ Judge Manton intended to aay thay on Indian allottee of Lond om

SS

Sow Tork Resorvetion seniet convey to m grented Mila er Ae ltl
fiihhar 14 10 dewdsiens good tum, Ot co cad page (78 | i

tf he tenended the statement te apply fie Tacks oa the Beyelat
casa, the sbotesont 1a cleo deabobeed good Law,

The languege of on opinion mot be equfined to the facts bofare
tho Court eid no opinden is authority beyond the polet actually decldmds
Opinion of Cowes only eogiier to the facta In thay ange,

Deughorty ve Rewktable bite Aseurance God., BOG My Ty Vy onl mony
guses ekted im Cees 10%, Abbottte dy Ya Digeat onder "Courte”s

Yorther Gleonanlon of Beylon cage Tolhows hwllowy

Tf avither of te obove condootires Le trac, defertont would oavter
a grdevoun eveng i reiionce ds ploced in the mare dietun of Mote, fey

ab page wee on the Uoylun eum, In ear opiates atch statenent or ah ats
4@ not the Low oppidesblo to this ause end de orem to ordtden] ememina tiers
ag bo ohtes for hie pale ackwoiiy,

feankian vo Lymoky 885 0, Be 260, and

Grithe we Piohor, 894 0. 8, O60

What do sneb oadee ehow?

Prandin vs lynol 4a & cage where « waite wou Cwidew of a Choctaw
Indien) weteined the plojatie? Fronklin os her etterney et dow, to perfora —
the tegel serviees necedaasy te obtain her qmeoliment at mee af the
telbo, whieh might theraafter entitle her to on eLletwent ‘ef apead fhe Lead ¢
ne the tdae of retedner she gove Promklin « warrenty deed of ony tribe
Lond whieh might thereafter be alloted to her, which dead wae duly recardad,
fhe Court simply held thet the widow aowld not give veldd title te Lande
which she 414 net owa when the dowd wee given and whieh da the nature of
tho onve sould wes be spook thankly donorthes ut. thet ¢imeq The Gowrt dd,
howwee, uphold the deed wader the widew gave to defendant Lynch attor
Feantiin hed obtedaed an allotment for hor, holding that the widew had 6.

SE

ba

right to eel bow slietted intereaty Tnetdad of being fevorablo to
ohaintiet, the facta ehow the cage 0 be dewidedly Yavarsble to defandit,
the Court dvowe e Gatloction betwom a member ond on ehlottoes
Hothing at a2) ie fowad im the Gritta case relevant to the comin
of the righh of sonveyonce ty on iadivdidual Teddans
Senden Notion vs Hammond, & Thowps otew OF4 (Lard) :
The Boyllen aagw, ohted by the Learned Judge Burke, ta stLil weaker :
then the Pranitbia casey 1b will aot "hour the burden” east upon Lt.
Bogen v. Board of Boucathon, B00 Ny Xa BPO, OFS
Bheve hed been no indlvidusl allotment in the Boylen casey en fade had
given 4 mortgage to a white men ond, of course, & nonemasber ot the tribe,
og hie general wighlobied interest in trlbel Landa, Ouch 6 mortgage was
vould 4a fae inception ae prokliited by atetite. The mortgagee forecoawls
Uiehnel Burke, e white mony bought £1 on sulle ond qalteglalaed ta Boylan
ake leer tyought o partitions netlon » praperty said to an owtatdors
The alleged Beylon tithe hed wumorene defects:
dy BO epeekad tract om parcel of Lond had ever heen allotted to 6 moment
of the tedboy benee no definite porsel. could be affected, Tt is womdily
guen that neither the Franwiiny Grits or Boylen ssses io ia point and
ouy obtetiona beged apm them ave beseless in so fur ag tha ¢ane at bey
in attootedy
Dy the Wee wes Gerlved through a mowtgege, tn ieeelt invalids
te Tho property wae conveyed on foreolasace of sald mortgage by & whl tem
miny who aowld not have been a member of the tribe.
dy the porcheser on forecloowie sale in form sonveyed to a white women
whe nowhd nok have hoon « tribal somber,
There eorbainly ie tething tn aay of the threo enges olhed which
authoriass the (lotus ef dadge Marten, as followed by Tudge Burke, thet
on indeiduel Tadien comet convey tithe Go another member of the tribes

oF


6 o . BGs

Aigo in “tndiane at Cork” a gubldeation of the Unhted Toates,
Department ef Intorker, Office of Tndtan Arfales, the Pobriary Le
desag, page 5, sayay~

REAM WAGED VO BARE BPRORPIG WORE"

tthe digastwous results of the allotment ayeten, ce complicated

by cucuasaive diviglona of trnat Lends among ganerntlons of hobriy

have beon deaeribed any times (a “indians oy Wakely

‘Hore Le one spenkiie 9 vonedy ~ one whieh osmet emocth —

out omerabhp slready wow eo prevent vorem saarlas

tt fe in the weking ond. wording of Indien willie”

“gf on Indian owlug roatrioted lend melas no willy hie dond La
divided, wader utote Law, among ghl bla legal hetre.®

to TS on Tevthen Lo oweldtied tw deview hie cask proparty 16 muet tolLiow
thet We de eOthtled be dora somey

tha como praction of New Yous Indions of conveying thede tntwreste
ly alietusnte to other manors of the somo twihe La too well oababigiiind,
to be, Layered, or to be | ey aa by Judiodal tewrads

St FanY fontidens ‘whatCthe prowkding fudge wD oxowine this qtestion |
thoroughly and eonolede to nodity or overrule bho providua statement
heovolnbetore quaheds ,

ww teed in onection haa fvom tee dmeenerdal boon in the Poodry
fantly « Lowle» Melvin» Philip« teem Pooday> Battle Footry Cherlom
axons gov a partion of the time trom the death of Phikip to the marriage
of dofondent, during vhtoh the Lawful bedra chomitebly ee
guemeriiy evicting en old woum, Anna Poodsy (Menes) s during the Jateriad
the property wee in veokity gasaeared by Ira Charles (hushend of defondant
Hatthe Carles) da the belie? he wan the lewmily adepted obild of Soblip
Boron

Consequently, under Haw Yous State Lewy welch ooinelded amd etil}
seinetdos with the usages ead ceotoms ef the Bondy the property wae ot ahd
times weeted in the Poodye foml ly. Hobodyoroven phate bee dined hancoutld
Logeliy divest the Pooley fumtly from ite interest in thie peak property.

oF

ee

|

° ® 58,

Al. ef the Poodry heirs could have executed quit-claim deads to
Hattte Charles; the refereyts deed is equivalent to sueh quiteolalm
from ali. pewsonsa who were parties to the action, Henee defendant holda

good title as an allottoes

POINT VITT.

To this case plaintiff asks thé Court to violate the well established
noxin “Lex wil frustre fect" (the law will not do a vain act). :

the Btate of New York through Lta legally constituted mechinery hag
adjudkeated and confirmed the posseseion and ocoupeney of the lands ta
question dn the defendent and her hedre; under the deed given ber the
property has become her home and dogtle with the vrevogative of defend.
ing hey tights to the wimost, end the tate of New York ta in duty bound
to upheld its Aeeroes for the vossagsion and srotertion of defendant,

Plaintitf hee not joined the Stoete of Tew York se a party to this
sotlon, end the State of New Tork, heving no oopertunity to be heard,
sanndt be hound by any decision or Judgment in this ease. This 1s 6o
elementary that sathorities will not be alted,

Had the State of New York becn made a party hereto all euestiona of
Jarisdietion witieh have for generations troubled and congested the Courts
could have heen finelly settled, Tho Court deas net have before Lb all of
the facts, nox juristietion of all interested parties; yet plaintiff aske
the Court to perform a futile sats. To declare « Judiatal act of one of |

|

opportunity to be heard. Had the cuestlen arisen on appeel by a defendant |

the States of the United States null. and void, without such date having

in the original pertition action end been Mnelly carried on aypeal through

the State Courts to the highest United States Court 6 final effective |

decioion would have been had and no eompladnt could be moda. ,
Plaintiff ie not agking for a conerete things Ite case is 8 moot

one and the Court will net sit to determine sacadewle quemblone, The

Sd

>

hy

vitel dyteronts of thie Courty an well aa Mitigentsy, demend the end of
Mtkestleny ond thet the title end posngnelon of the Lende dn question be
fimeliy determined, It comet be dene in Udie eotlen of At new wtanidie
Ti om oly be done by bringing im the Beate of Sow Tork and Tonswanda
tend a9 parties hereho, No practigal feault can bo obtaland as the aase
now ohondiy

Show! the plaintit? heve Judgoent, o¢ the eaee now wtunday 46
gummy Ye ‘awendail pooseonton of the progertyy aor wun any other parson)
cerweuds Wlaweetiet cannot be tut im seesemrion Uy suck Pelgeomty and the
whole webter e111 eo theough he aourta agelns The echham of the Count’

@13. confumnd the contuchome AML other interested partion ahwald be tawaght |

im on party defondantey

POINT ERs

Pilndetige a essence ia aceklug 4 declaratory Judgmitita Tn ooh
eave OL) interested parties should ba brought In, they tedag the Otate of
Yow Yous and the Tonewenda Dont of the Geneas Botdon ef Indlands
fhe text book on Todlaratory Tadgnents by Prefaneer Rdwin Dorehard.
of Yale Universioy, covers the subjeot ia o masterly menter. Sireloanor
Rerchard soyago
4, Seashesten “ de donigned wo tormminete the autrowerny
ov uacoriadny ate tarented partdan ana net sonved OF presently
i would Likely fant Se thet omamtial parpoams

‘qwe prinwipal. rd teal pgia the poll sy in Cover of rondering
dovlavoteey jadgmente Are, ti te fond ba wiht, serve & ugetn,
purpeso in settling the logs) ralatiune in 8) Whom 26 wtdt
torainete ond afford reiler from the neon tainty Anacouel by, and
conieoveray giving fee to the srodeedings®

4 foklews won neither ef these eeenite aon be cegomphiahed the
Court showld davline to ender the dealeretion prayed.”

Horahatd, Dime Tedgnente, pogo LPs

Co

. ° » Ole:

in ovder for the potiiden to ling the contrevearay muah be determined
thereby.” 0, pega 100, oltiug te noted, vowlone guness,

the meertulaty woulé not be terminated, where the procedure tw
dieates the abeones or fallare to jwise, necesgesry portios im interest who
ought te be heard oe Wounds The a 4 0 4 oe The wont af juried. oltonal
ravuieites of juetheiablidey bars the gvent of the petition on ‘gaabnieat
grounied Detondent dows not wish thin ease deatded on ceotmicel grounda,
bet er the word tity”

Cernodyta Peartloe fe alk tu the sane offeots

Coumectioat hee <dopted Miles re dedlaratery Judgments, subd. 4 of
Goo, OF vender "Nhe Supeeier GCodet o1L not wonder a declaratory Judgaont
vaious atl copmone heving om iaberest im the aubjeet matter af the eoaplaint
ave portion to the agtion or have vransonshle notes theratfeneee”

TBs page B0e

ia Tewae Ve Tate Btote Coms, Gomme, SOG Wy By Ditty

fade wan Reought to hevy deglarad wunconatlintienal certain proviadlons
of the Tcoseportation sot; oult dlawleseds Court sagem "LP tha state hore
& right to sits 4 + « « & Towiller pule eonulites 1¢ to proceed wlth due
pegord te the eights of the anrclere « « « « mm the question whether « « ¢
the oumtore ara ontitled to he hoard, Thede rights ave diseotly lowived
ond whl be sedgenerlly elfechel by the reaalts®

Thave are numerous other detlalona to the que ettotts

wow Yous Lew La olmiiars

The gouumel. purpose of « dawlurctary Judement ia to aerve aome
prnetian ad, oad in quieting oy stabiidcing on unoertein or dlaputed
ural volothon, either oo bo present or prospective abidgotione « a» % «

Somberg ve Bemherg, R00 Gy Fs. Ly Kelloggs Je

Vodvoy Gow ve Vahetield Gardand, 860 Supp, 08

Bocradale Guppy Qos ve Poarady S74 Cappy YF

tndon Try Goa We Bed, olde, BOR fupy, ae

Gf

Geity LO Bs Ba Ge Fa de aults Ly providws thot
Queers a. complete detemivotion of the controversy cannes be hed
iho the presence of other parties the gourt gust direct
thom to bo brought ima”

fot onky a) porsens whose righta may be affegted, bat anyone whede

presonoe dn aveontial ta prot a porty shawl be brought ine

Mone wi We Oy Pa Tate Oday 107 Ny Te 408

Gugel wv» Wheooe, 810 By Xe Mae

it do a mwle that a Court of Rqudty,ia the absonge of all parties
neceisory fox a couplets determination af the controversy tendered by
the antlen whl uot asaume jucladLetidne

Levwhe ve Busudy 880 Bays TRB, PBs

Thin defendant Ls not in poodtlon tw eorkoet several agtlome, A
mpl iy end uewhiy of settene wi be svedded by bringing im clk
parties iatwcomted in sald real property.

The dane ahowld bo apened ond all dnterentad parties brought tiny
otherwlee « piiguent wilt be yelueless end auet Leod te further Mitdgethens
The Cours has power to open the ease, aud bring in ol) daterested partion;
im view ef the Leyertanece of the questions tuvolved 1% would sewn thet the
daty toate upon the Gowrt so i dh, COoetions of « century whieh have
geuied ondlews Litigation cawld be adjudiented in this schlons Tt might
gexe & aw months losger, which Le tet the ®apon ef o hand” tm onetent
aboriginal, history, Af other uacesdisy ond dwtevested parties are nok
veonght dn, 1s fe th aseume thet the facta we title to thie property wil
be bonded chot the Courts for an iadeMinite Leagth of tina, ivveapactive
er whet dhe declelon in bbhe cage may bea «

Aag fusenons in thie gaan in teaver ef plalawt! without the Yethe
being Wrought im ne 6 pawty ond properly represented whl hove dlasetrous
effects upon thn relotioiwa between oat Hational Goverment snd Toamwanda ted be
ag walk on thougenda of other Indiana, Tt wilt be o mistake onsarable «ith
the tracte ah Leda, a

ou

»

By
Meinwrtts Bebtbit Dy pagar 10 ond 10 contains minutes of a
onéetet Could meobing Held on Dowuther Wd, MiGly Genoral Muy &y
Povkomy Clerk; Tre 10-170 shows the meeting was gelied to hear he
repent af Anvon Be Poodwy, provienaly appoisatad by the come ae
toe the senaue of ballots da referenen to the Indien Laws of "Laat
inte! Clegislative seusion of 1061) “The vote vanerbade

ta fooer wt the Los aa6
agadags the Low re
geuteat 4

at. SOR :
tore, a

thts vote wight bo tehwlated ae fellows, dividing the nentrnle*
amd “aod nen eoneliy betwen aon partys
in fover of the Low aan
woke? newhwale

ae
“gael? sob sean
tm tavor ~ai~

agit tive Lew ae

one lee weet a8
’ Wee~bat net amen
opie

tn Gover of the Law Gh.ae%
“pgetnee he Law O6y Ake

tnie shows the sentiment wf the trite 78 yearn ago, whigh hos aoe
tiaued to thie doy and inorensed to Yoh (ir, 164-168) witness Ballay
asyat :

faa Wy Mow oon you toll the proportion of the numhwr of the
; Gond whe ove in faver af being governed by the Lows af
. the hate or New Towkt :
ie Gn the bowke of the oleetion wa hold every your «» thot.
inthe only gauge ««the preset porty im power now has
pom in yowwr for a good many yours end Caey now whet
Geer atand Coe «om


What ia the proportion?
i would say seventy-five per cent of the Tonawanda

(pe 3

Indians are leaning that way.
i, And they have for how long?
Ay Oby Prom «» It has been that way abowt from 1662,

The Courts You mean the opposing party never gots in

oom trol?

The Witeeass Yes, I think that 1a another reason wa heave

(pe

thie brawl,

“169)

WA, «as « 4 ¢ Chadyemean anmounsed that the minds of the
people may now rest at ease respecting the Law: Lt must ie :
renain in forces, He was happy to ennounce that a Large: :
majority of the Chiefs sustained the law ond ha hoped that
the few who had been adverse would cutetig aubmit to ite

operation.

the peoot Lo antfieiert te show thet the New York Indias Law

rwleting to the Tonewends Bond bas been adopted of the rectent
of endd Bond and thet defendom$ showkd prevadl da thle gusey

CK

fe y

8B,
BRRATA in transeriptions,

Page 188 line 18 "State" should read "stebLidty®

Page 186 Line 19 "and" should read "under

Page 126 line #0 "the olan of" ghowld be stricken out

Page 152 Mne 18 "soatel" should vead “offielai"

Page 189 Tine L "eonfined" should read ‘confirmed

Page 176 Vine 20 “settlement should read "sentiment"

Page 196 line 16 "resolution" should read "revolution

Pege 196 Iines 1, 2, 3 "Morgenthal" should vead "Martindale?

Ppt dontiay Pik) 1940 haagd be Respeetfully submitted,
Bo r we ia J

Deo tt 3 / £86 1&6 NELSON T, BARRETT
Jo" Af “taded,” “atid” Avhorney for Defendant

SUPPL EMIT At

Plantier at page 8 of ite brief etates:
Tt de admitted ie 4 both parties te this section that the state law of
desvent ubder whieh the Supreme Court of Genesee Commty pretended to

act establishes the Law of deseent through the father, while the @
teibel Law of the Tennedsee Nation established descent through the mother,"

hie statement is not edwittved by defendent, Under anclent Indien eustem
lineage wag traced through the mother only; thie wes to preserve the ine:
tegrity of the clan, held together by consanguinitys in early times
natemity could be eagily established, hut difMoult ov impossible to
asteblish paternity, Linesge has nothing to do with descent, When

real property rights later developed, they descended from thea father

af be waa the ower, from the mother Lf she was the omer.

The New York Indian Law as affects the Yonawondas Ls buh “thet expreseion,
of the will, eustoms and usages of the Band.

New York State Lew governs dedvent of the property Ia question,

NELSON XY. BARRETT
Attorney for Devandant


SUPPLEMENT to Paje 58

On Yenuery 22, 1918, Yon. Franklin Ky Lane, Seeretary of the
Interior, in a Letter transmitting the "Reeves Regort" to the
Chairman of the Bouse Committee om Indian Affaires, both printed
os Houae Doounent Now 1590, states as followsi~

(m9) "Some of the shrowdy far-sighted members of the tribes,
py inheritence, by purchase from other members or othorwiee,
have acquived Boldinge largely in extess of « pre rota division
ef these Lends among the present tribal menberahip. These
holdings im a large uumber of ouses Have been improved with
modem howes, excellent barns, and equipoed with up-to-date
faraing dmplenents. Where thé tlele thug acquired has bean by
juhovithadcce or by purchane 14 would nardiy be just to depwive
the preaunt holders of any part of thely lands without Just
compensatien therefor, It should be underatood, of aourse, that
these people are without power to alienate their ‘hatds to
yersena other then members of the tribe, but emilee havd ‘baleen
pines betwoon members of the same tribe, in many cases owidoncad
vy deeds placed of record in -the proper county, end theadh trend
ge ond aeles have been teking place practioakly fdy the Last
VPOOT Bs

he report Ltaelf (p. BC) spegka as follows:

‘The Indiane under their tribal government have divided the lends
awong thetselyes; valuable improvements have been erected, and
‘venafers have been made by sale, purchase, gift, ot otherwiee,
nmathi the present chaiments sre confirmed in their respective
holaings by recognition of the tribal officers, by the tribal
menbership at Large, and even by the State courts, whe bave upheld
auch transactions,®

NELSON T, BARRETT
Attormey for Befendant

66


STATE Ureincar - -
COUNTY OF ERIE, Pai “pe
: BUFFALO, :

Sih thes

being duly sworn

says that he is the plaintiff in this action; that he has
read the forego ai and

knows the contents thereof; that the same is true to the knowledge of deponent, except as to the matters

herein stated to be alleged on information and belief, and as to those matters he believes it to be true.

Sworn to before me this..____--}

day of 19 j °

Notary Public, Erie County, N. Y.

“ACN OWaANG
auvnds 1109/7718 BEE

» ssgaday 'O ‘d GNV 301ddO

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dd oxp

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PH: 518-437-3935 Fax: 518-437-3930
httpillibrary.albany.edu/speccoll!

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

UNITED STATES OF MORIA}
Plaintiff,)
Ve { FINDING OF FACT
( and
TTIE CHARLES, i CONCLUSTORN OF LAW
i Defendant.)

The above entitled case coming on to be heard before the
Honorable Harold P. Burke, Judge of the above court on the
day of October, 1939, at the courthouse in the City of Rochester,
in the State of New York, plaintiff appearing by George L. Grobe,
United States Attorney, J. B. Doran, Assistant United States Ats-
orney, &. ©. Daniels, Special Assistant to the Attorney General,
in behalf of the defendant, by Nelson T. Barrett and Henry S. Hanle
and the court being fully advised in the premises, the case having
been submitted to him, upon the records and files in the action,
upon all the affidavits heretofore filed in the action in support o
the motions for summary judgment, upon the admissions contained in
the pleadings and upon the evidence introduced in open court, and
from the foregoing the court hereby makes the following

: FINDINGS OF FACT

I.

That the action was brought by the Attorney General of the
United States at the request of the Secretary of the Interior of th
United States for and on behalf of the United States, and on behalf
and as trustee and guardian of the Tonawanda Bank of the Seneca
Nation of the State of New York.

It. ;
That the Court has jurisdiction of the defendant and of the

subject matter of the action.
Tit.
That at all the times hereinafter mentioned the Senecas,

Onondaga, Mohawk, Cayuga, Oneida and Tuscarora Nations have jointly

Ys

E

S


constituted the Iroquois Confederacy khown as the Six Nations, and
the Tonawanda Band of Indians has been a separate and distinct tribe
of the Seneca Nation of Indians-~- not bound by or subject to the ch
charter of the Seneca Nation adopted by the Allegany, Cattaraugus
and 0il Spring bands or tribes, the Tonawanda Band acting under and
being governed by its separate tribal laws and customs.

Iv.

That at all times herein mentioned the Tonawanda Band of
Indians has maintained its own tribal relations, has kept the
tribal affairs and property separate and distinct from any other
tribe or band and from those of the State of New York and has been
and is under the tutelage and guardianship of the United States.

v.

That while in the occupation and possession of the lands
upon which they have been domiciled from time immemorial the said
Six Nations entered into various treaties with the United States,
to-wit, on October 22, 1764, at Fort Stanwix, New York; on January
9, 1769, at Fort Harmar, New York; and on November 11, 1794, at
Canandaigua, New York; copies of which treaties are hereto attache
marked Exhibits "A" "BY and #0" respectively, and made a part here

That ail of said treaties were duly adopted, ratified and
i proclaimed by both of the contracting parties and have since said :
time been in full force and effect.

That in the last mentioned treaty, entered into on Novenbe:

11, 1794, all prior treaties were confirmed and there were therein
recognized a11 rights of the Six Nations and cf the component part
thereof, including the Seneca Nation of Indians ad the Tonawanda
Band of the Seneca Nation, to the lands occupied by them, which sa
rights were specifically granted under the following provision

(7 Stat. 45, Art. III):

NOW, the United States acknowledge all
the land within the aforementioned boundaries,
to be the property of the Seneka nation; and
the United States will never claim the same,
nor disturb the Seneka nation, hor any of the
Six Nations, or of their Indian friends resid-
ing 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.

2.


VI.

That during or about the month of June, 1933, Anna Moses,
a member of said Tonawanda Band of Seneca Indians, residing and
entitled to reside on the Tonawanda Indian Reservation, died
intestate in the possession of certain land on and a part of said
Reservation, uore particularly described as follows:

ALL That Tract or Pareéél of land

situate, lying and being on the Tonawanda
Reservation in the County of Genesee, State
of New York, bounded as follows:-

Property described in
samended complaint.

That at the time of the death of said Anna Moses,Gertrude

Blackchief was her daughter, residing with her and participating
in the occupation and use of the lands involved in this action and.
was the sole heir of Anna Moses. i
VII.

That thereafter the said Gertrude Blackchief duly filed
with the Chiefst Council of the Tonawanda Band of Indians, in ac-
cordance with the customs and usages of said tribe, a petition
claiming to be the heir of 4nna Moses and entitled to the use and
occupation of the tract of land involved in this action and for the
purpose of evicting Ira Charles and Hattie Charles, who are adverse
Claimants to the said Gertrude Blackchief, and who claimed heirship

which entitled them to the said lands claimed by said Gertrude

the determination of the Chiefs! Council in accordance with the
laws and customs of the Tonawanda Band or Tribe of Indians.

VIII.
That thereafter and before any action was taken upon the
said petition of said Gertrude Blackchief and on or about the 17th
ay of March, 1934, proceedings were commenced in the Supreme Court
of the State of New York for the County of Erie in the name of the
People of the State of New York on the relation of said Ira Charles
and Hattie Charles, by their attorney, Nelgon T. Barrett, against
Gertrude Blackcheif, the Shiefs' Council of the Tonawanda Band of
Seneca Indians, and others, for a writ of prohibition and injuction

to restrain and enjoin the said Gertrude Blackchief from instituting

3.

Blackchief. In said petitién the said Gertrude Blackchief requesséd


or carrying on any proceedings in or before the said Shiefs!
Counsil of the Tonawanda Band of Seneca Indians and to prohibit and
restrain the said Chiefs! Council from entertaining any action or
proceeding or making or issuing any order or decree relating to @
affecting the said real property.

Tk.

That on or about the 7th day of May, 1934, the said Supreme
Court of the State of New York, County of #rie, issued on order
enjoining and restraining Gertrude Blackchief from instituting or
prosecuting any proceeding in or before the said Chiefs! Council
and restraining and prohibiting the said Chiefs' Council from
entertaining, determining, or enforcing any proceeding in relation
to the lands above described, and that said order vas served upon
said Chiefs! Council and upon Gertrude Blackchief, and the said
Chiefs! Council was thereby prevented from determining the right
of oceupancy of the land herein involved or teking any action in
relation thereto and thereby depriving the Shiefs* Council of its
jurisdiction vested in it in relation to such matters by the laws
and customs of the Tonawanda Band or Tribe of Indians.

x.

That on or about the 15th day of March 1934, and two days
prior to the institution of the action seeking a writ of prohibi-
tion as stated in paragraph VIII hereof, an action was commenced
in the Supreme Court of the State of New York, County of Genesee,
by said Ira Charles, Hattie Charles, and one Samson Poodry, by
their attorney, Nelson ?T, Barrett, against Gertrude Blackchief,
and others, for the purpose of enforcing their alleged claims to
the land described in paragraph numbered VI hereof by the application
of the inheritance laws of the State of New York to the said lands

and the parties interested or pretending and claiming interests

therein. In this said action the plaintiffs applied for a partition
of the lands owned and occupied by the said 4nna Hoses at the timel
i

of her death. That the said cause was heard by one Noonan, Referee
|
i

f said court, f : i
of said court, for the purpose of making findings and said referee)

4


found, in addition to a finding for the petition of said lands, that

*** the property is of such a nature
that it cannot be actually partitioned without
great loss to all parties concerned and that
therefore the same should be sold at public
anction and the proceeds divided according
to the respective rights of the various parties.

XT
Abe

That said findings were approved and adopted by the court
in said action and thereafter and on the 14th day of July, 19356,
judgment was entered, in which it vas provided as follows:
Ordered, that the real estate described
in said judgment be sold in the County of
Genesee by and under the direction of James
A, LaBeur, attorney of Batavia, New York,
who is hereby appointed as Referee for the
purpose of such sale.
II.
That James A. La Seur, the Referee above named, was desig-
nated and appointed by the Supreme Court of the County of Genesee,
State of New York, to sell at public sale in the case of Hattie

Charles, plaintiff. v. Simeon Skve, et al.. defendants, the

followine-described property:

Property described in amended complaint.
and was directed by said courb to sell the same at public auction
to the highest bidder therefor at the entrance to the Court House
in the City of Batavia, Genesee County, New York, on the 5th day
of September 1936, @t ten o'clock in the forenoon.

MMIII.

That thereafter the said James A. La Seur, Referee, issued |
i

and published the following order of sale: i

SUPREME COURT, COUNTY OF GENESEZ; Hattie
Charles, Plaintiff, vs. Simeon Skye, et al.,
Defendants.

In Pursuance and by virtue of a judgment
of partition and sale duly granted and con-
firmed by this Court and entered in the Genesee
County Clerk's Office on the 14th day of July
1936, I the undersigned Referee, duly appointed,
in this action for such purpose, will expose for
sale and sell at public auction to the highest
bidder therefor at the entrance to the Court House
in the City of Batavia, Genesee County, New York,
on the 5th day of September 1936, at ten ofclock
in the forenoon, Standard Time, of that day, the '
real estate and premises directed in and by said
judgment to be sold and therein described as follows:

Property described in amended complaint.

5.


xIv.

That thereafter and on the 5th day of September 1936, |
the said James 4. La Seur, acting as such referee, above named,
and under said order of the court, did sell said land at public
auction for partition thereof among the heirs of the said Anna
Moses, and the sane was at such sale purchased by the defendant
Hattie Charles for the sum of $575.00.

XV.

That thereafter and on the 20th day of October 1936 the
said James. A: La Seur, Referee, reported said sale to the Supreme
Court of the County of Genesee in the ease of Hattie Charles.
plaintiff, v. Simeon Skye. et al. defendants, and in said report
stated that the said Hattie Charles, purchaser, had paid the full
amount of the purchase price and was entitled to the deed therefor
when such sale was confirmed by the court.

XVI.

That thereafter and on the 26th day of October 1936, an
order was entered by the said Supreme Court of the County of Genes
State of New York, confirming said sale and directing the convey-
ance of said property to the said Hattie Charles, defendant. And
that thereafter ad on the 27th day of October, 1936, a deed of
conveyance to the said premises, so pretended to be sold to the
defendant, Hattie Charles, was executed and delivered by James A. }
La Seur, as referee.

XVII.

Theat at a ten-day feast of members of the Turtle Clan,
of which the said Anna Moses and Gertrude Blackchief were menbers,
there were considered the right of occupancyyof the tract of land
of which Anna Moses died possessed and in occupation, and it was
then and there agreed by the said members of the Turtle Clan that
the Said Gertrude Blackchief was the successor in interest under
the customs and laws of the Tonawanda Band of Indians in the tract
of land of which the said Anna Moses died possessed and was in

occupation, and the Tribal Council was advised of said Ten Day Feas

and its results.

ch

XVIII.

That for a long period of time allotments of land or

determination as to the right of occupancy of tracts of land in
the Tonawanda Reservation have been made by the Chiefs! Council of
said Tonawanda Band and that said allotments gave to the allottees
and their heirs the right of possession of the land; thet said
Chiefs' Council of the Tonawanda Band of Indians was unable to
make such allotments with respect ta the tract of land occupied
and possessed by Anna Moses by reason of the Writ of Publication
issued by the Supreme Court of the State of New Yak for the County
of Erie and that no allotment of the tract of land occupied and
owned by Anna Moses at the time of her death has been made by the
Tribal Council of the Tonawanda Band of Indians according to the
customs, laws and usages of said tribe.

From the foregoing findings of fact the Court makes the
following:

CONCLUSIONS OF LAW

1. That all the material allegations of the complaint
have been established by competent proof and by admissions contained
in pleadings. ,

2. That the plaintiff is entitled to the relief, in full,
as prayed for in the complaint in this action.
That the said s&le and conveyance of said property and all
proceedings leading up thereto and in sonfirmation thereof were void,
unlawful and wideut authority and without jurisdiction in any
person, court or officer to participate in said proceedings lead-
ing up to and in confirmation of said sale or conveyance of the
said premises to Hattie Charles, the defendant. That the said sale
conveyed no title to the said premises and that the qurt ordering
the sale thereof was wholly without jurisdiction to authorize said
sale or to proceed in said partition action and that said sale
constituted an interference with the tribal laws and customs and
was in derogation of the rights granted to the Tonawanda Band or

Tribe of Indians by treaties with the United States herein des—

eribed.
7.


That said sale was an interference with the right of the
Chiefs! Council vested by the laws and customs of the Tonawanda
Band or Tribe to determine all matters of heirship and the allo-
cation of land and 6f the right to occupy and possess portions
of the Tonawanda Reservation by members of the Tonawanda Band
or Tribe, and that said sale and deed executed pursuant thereto
alienated the lands of said reservation and constituted a taking
of lands and a disintegration of said reservation away from tribal
ownership as vested in them from time immemorial and guaranteed to
them by the treaties with the United States hereinbefore described

That said attempted sale and conveyance of said premises
in the manner as aforesaid was violative of the treaty rights of
the said Tonawanda Band of Indians guaranteed to them by the
United States and constituted a violation of said treaty to the
detriment and injury of the said tribe. That the effect of the
said purported sale was to alienate and divest the said Tonawanda
Band of Indiens from their tribal ownership, use and occupation
thereof as guaranteed by the various treaties of said band with
the United States heretofore set out and referred to.

That the Supreme Court of the State of New York was with-
out jurisdiction to entertain the suits before mentioned; that
all of its purported proceedings, acts and orders therein were
contrary to the Constitution and Laws of the United States and of
the treaties hereinbefore referred to; that they constituted an
infringement upon, and invasion of, the tribal rights and of the
tribal integrity of said Indians; that said suits, proceedings,
acts and orders were, therefore, void and of no effect; and that
the attempt of said Supreme Court to assume jurisdiction over,
and to intervene in, the administration of the internal affairs
of said Tonawanda Band of Indians was an invalid interference with
and in contravention of, a governmental function of the United
States; that judgment be entered restraining and enjoining any
action preventing or prohibiting the tribal council of the Tona~

wanda Band of Indians from making @2 allotment of the tract of

&.


land possessed and occupied by any person or persons, or by any
court or officer thereof.
° XIE,
That by the laws, customs and usages of the Tonawanda
Band of Indians, upon the death of a decedent member of the
tribe, the property of the decedent, including the right of
occupancy of tracts of land held and occupied by the decedent,
decedent upon the mother's side, and that in this case, upon the
death of Anna Hoses, a Tonawanda Indian, occupying a tract of land
on a Tonawanda Indian Reservation, Gertrude Blackehief, the daugh-
iter of said Anna Moses, was the heir entitled to the use and
occupation d the tract of land involved in this action.
XX.
That the plaintiff may have such other and further relief
as may seem to the court just and equitable.
XXI.
That costs be taxed against the defendant for this action
XXII.
That the Court hereby retains jurisdiction to make such
other and further order and judgment as may be necessary to carry
out the findings and conclusions herein made or the judgment

entered thereon.

Judge


VK UNIVERSITY4TALBANY ME. Grenades Deprtuentof

State University of New York Special Collections & Archives

Heury S. iawtey Papers, l\s49—- lflo

. Box /
Deserit Hon ‘6 POLDER 4}

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Stare University of New York

Gevies |

Deserit tien 7

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us ve Heltie Charles

1400 Washington Avenue, Albany, NY 12222
PH: 518-437-3935 Fax: 518-437-3930
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University Libraries
ME. Grenander Department of
Special Collections & Archives

Box |
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1400 Washington Avenue, Albany, NY 12222
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http:/library.albany.edu/speccoll/


|

DAILY NEWS.

N. Y¥. MONDAY EVENING,. DECEMBER 16, 1940—FOUR O’CLOCK.

S|
ING
“ANS

sion by
istices
ye

\FFECTED

ament Held
he Needs
“ce.”

16. (P), — The
d@ today in a

that the au-
al government
treams, “is as
of commerce.”
vered the six-
h held that the
mmission may
achian Electtic
obtain a “stand-
for its dam and
‘ew River near

vadened greatly
ithority of the
t over the na-

egro Case.

od to review a
‘sentative Arthur
aly Negro mem-
the‘ constitution-
w” railway cars

rat, Illinois, as-
aust “furnish act
members of his
of white per-
nterstate com-

ne court re-
ats will be

buildin

*

Cornplanter of the Senecas signs the famous “peace and friendship” treaty of 1794 that marked
the beginning of better relations between the Indians and the then infant. government of the United
States. ‘This scene took place Saturday afternoon at the Tonawanda Indian Community House during cere-
monies marking the first commemoration of the peace. Sylvester Sundown portrays the role of Corn-
planter, The others are Nicodemus Bailey as the sachem, Russell Hill as Colonel Pickering and Ray
Moses ‘fas General Chapin. : .

ACCIDENTS CLAIMED
NINE INTHE STATE

Six in Upstate. Area Lost|
Lives in Other Mishaps;
One Burned.

bile mishaps.
The deaths ‘by communities:
Beacon--Jerry Licollo, 28, butn-
i ‘fine

es
Jamestown-“James

MERC
cL

Rain _
tures ir
most of
of snow
™man pre
near-frec
night an
row.» Th

-[is 33° de

The
grees at
Batavia
ing this
reading «
ber 22d.
low of %

Yesterc
was fron
ing to %
started 1
morning
cipitation
of an inc

‘Today's
skating
which. wi
noon and
ond time

WATSO
/

Sehedv
before C
| Noonan
proceedi:
propriet:
and Ru


the

egro Case.
od to review
‘sentative Arthur
a

w

rat, Ilinols, ¢

nterstate .com-

ne court. re-
ats~ will be’

“Negro mem-
the“ constitution-
Fallway cits

as-
dust “furnish. ac-

-| AUUIDLE TO ULAHEL BS &

al’

Six in Upstate. Area Lost
Lives.in Other Mishaps;.
» One Burned.

TWO “DIE. IN. ROCHESTE

NINE IN THE: STATE

Pa.

“Rochesteithtauriée a. Clarke,
39, “ear crashed into. the abutment
of a railroad: underpass; Mrs.: Vii
genza Cieconi, 52,fell down a flight
of stairs,

Poughkeepsie-—Atolf Blissner, 44,
Wappingers, Falls, car crashed into

Pine - Bush— eire Bergeh as
‘alley’ Streain,
tsen, . 49, Brooklyn” aan ay
“her, fitiy, Walker Valley, kill-
auto-truck collision,
igh Wan da ikow=
ie "killed in a two-car colli-

4 SAVES A. FAMILY.
M DEATH BY FUMES

Dec..16, (P),—Louis

sure’ his family

4 be oe iced if he

ad a-hu

Sirus stops at

yom on his way home

‘x, failed to «do so

‘rday because of the

ag home, he found *
Il of coak gas. Dr.
rth used -six smail
e tank of oxygen

:
{STERIANS __
ED. ILL TODAY
"16... — ‘The
ing. water .con-
x thgay 9x health
Sa hundreds of
disorders: they
iminated : drink-

Johnson, city
\ the diseases
\aworkman. ,in-
“valve pour-
‘ater into the
toms, he add-
aled for “ter

390,000 resi-
“* hastil

‘ ve

Sat ues ina pageant at the
sthiles

Esther,

‘Tonawanda Indian

receiving their share of the-cloth, part-of which will un-

do ied become dresses for then, are Gloria, Charles, Lenore and.
acl

Bi

In fulfillinent ofits obligations set forth. .146. years ago ih “the
treaty signed .at Canandaigua, the government annually distributes’
cloth -to some 4,900 Indians in the, stat

custom was re-enacted
Reservation. | All

Against a" world” background. of
broken trusts,'New York state In-
dians and the federal government
reaffirmed their vaunted “peace and
friendship” treaty of 146 years’
standing. atthe Tonawanda Reser-
vation . Indian «Community House
Saturday “afternoon.

“Some 500; including Congressman-
elect Alfred Beiter of Buffalo as,
the: representative “of ' the govern-
ment, sat-in awed silence as the
Senecas, ‘garbed in the authentic
dress of. their forefathers, re-en-
acted by thé medium of.a pageant
the saunas ;ef. the, historic docu-

ent by “the Iroquois. Confederacy

ent Bovernment of.
a Capondaigud

on: November: 11
In fulfillment of aie ‘tenths, bolts
of ‘printed: ‘cloth and’ unprinted
rae were handed. the ce of
ie Six Nailons.

p tak
- |Wweek: on. the wontons reservations.
A low chant filled, the great hall;
drums thumped.p. steady but.barely

Indians ‘Mauk Treaty Signiiig
With a Pageant:as the Feature}:

jatidible beat/as Ho-Sta-Oot (Wall of

Rock), a Tonawanda Setieca, desig-
nated as “caller,” uttéred the tra-
ditional welcome to fellow- ohiets of
the Six Nations.

“Mohawka, elder brothers,: Keeps
ers of the Eastern Door, il a
be with us,” he .droned; did

not. answer ‘the gummong in 2784,

“Oneidas; Seepers of. the Wam-
pum,”: ‘he: called -nex ae

A’ gray-haired “Indian
civilian clothes stood up at'a bench
on one side of the hall

“I, Chiet jockwall Sodek for 200
Oheidas,”” he said.

Chief Frahk Isaae answered for

600 Onondaga, Keepers: ofthe ‘Fite;

Chief Jake Seneca for 230 Peles
‘Watchmen ‘of the Inne
Chief ‘Aaron ‘Poodry, “Giant Thee
for (500: Tonawandas; Chief Cor-
Helius Senéca’ for 1,600 Cattaraugus,
and Wilford’ Grouse for 900 Al-
iepheniee The’ last three ate clans
the ecas, Keepers of the
Western Door, Chief. William Chew

jontinued ott the Ath page.

ELECTORS, ARE MAKING*

\. THIRD. TERM OFFICIAL |:

Yashington, “ Dec. ‘16. (é).—Al-
3h President Roosevelt's thitd
Setory is.a ‘matter of history,

of the land made it in-

‘& that ancient though
stitution—*~ Elec-

‘SOUT: BHNEES DEMAND

ID-FOR. BRITAIN
Southern’ ous N. C., Dee, 16.

(@\—Declaring, the . United. States

must .“choose and chodse quickly,”

€@ group of thirty promier‘

verners. urges “immed!

pacity mobiliz

in dark |

Kell


Dec. 14,1440

THE DAILY NEWS, BATAVIA, No Y.>
fs E-

INDIANS MARKED
TREATY SIHING

Continued from the first page.

‘spoke for 450 Tuscarora, the

. ¥ unger Brothers Who Sit- Below

the Fires,

Rochesterian Spoke,

When the calico ceremony was
ended Dr. Arthur C. Parker, di-
rector of the Rochester Museum,
reminded the Iroquois that the Unit-
ec States had kept the faith, that
it had lived up oy the letter of the
Treaty of Canandaigua, as well as
to its spirit, through the 146 years.

“Such faith is unique in a. world

“of broken promises and of enslaved

* part.

peoples,” E

-A murmur washed against the
great walls of the Longhouse.

Parker motioned to a

little man at his side, Peter Doc-
tor Go-Noh-Da-Gieh (the War
Chief), called on him for a prayer.
‘The words: came softly, in Seneca,
’from withered lips. Hidden in deep
shadow in a remote gallery, an In-
dian chorus of mixed voices pro-
vided even softer background with
the musie of O-Kee-Weh, the Iro-
quois death hymi

Representatives. “of the office of
Indian Affairs in Washington and
Charles H. Berry, superintendent of
the New York ‘State Indian Ag-
ency, had arranged a fe-enactment
of the ‘signing of the Canandaigua
Treaty for Saturday’s event. Dr.
Parker was narrator: More than
sixty tribesmen of the Six Nations.
men, women and children, took

Sure of the Beat,
They entered the darkened room

“in slow, colorful procession, keep-

ing time to drum throbs and Indian
chants. “Thé° musicians were the
older folk of the confederacy, wrin-
gled and toothless, but sure, of the

eat.

‘An ancient written record of the
meeting at Canandaigua supplied
the material for the text of the re-
enactment.
<The cast enacted different. stages
in the growth and development of
an Iroquois; from babyhood to his
taking the arms of a warrior. The
tribal dances were woven in the
‘scenes~and were enriched with the
music and hymns of the Six Na-

zlions. The love song, by mute

flute, held the audience ‘almost as
fina spell.

The lights at last played on the
seciie depicting the Iroquois at
Cans ~ with Colonel

at
Repaired, femodeted, ftehined.
Cle: es Expert

DSTEIN

nite be Re oie

TAKING PART IN INDIANS’ PROGRAM

sidents of the Tonawanda
Chants and ancient music of the Senecas ‘were furnished by these res’ z
tor the solemn affirmation Saturday afternoon at th ‘Indian -Community House of the sign-

194 at Ca

olist United States keeping the terms of the “peace- and friendship” treaty, Charles
H. gee Ge heehee superintendent of the New York State Indian Agency, here is distributing the
six yards of calico to the leaders of the Iroquois Confederacy. The,.sceneis the ..Tonawanda .. Indian
House Saturday afternoon, Shown are (eft to right) Arleigh Hill of Rochester, Mr. Berry, C. C. Perry
and Dr, A. C. Parker, of the Rochester Museum of Arts and Sciences, Jacob. Seneca of the’ ‘Cayugas,

Atastese +

wDARaGPuneCher

AAse ent Memeansad

Shee oS bt

Batavia’s Only. _easlaaive “Fuentes
Established—30_ Year:

‘TAIN ‘ST
Opposite Hotel Richmond

Wringer Rolls
_.-And Parts
For All Makes of
Washers

Chas. Mancuso &

on, inc.
32 Ellicott St. Phone 584

CANDIES
Wrapped for
Mailing and
Delivered to
the Postoffice
FREE
OLIVER’S

Candy Shoppe
211 W. MAIN ST.

A.
Wiltora, Crouse, of the!
wil Chew of

Back stage Saturday afternoon

Mose ew all the attention,
the

She

U. varker, or the Rochester Museum or Arts: and S@gnces,
Allegheny-Senecas, Aaron Poodry and the; re Peter Doctor of the Tonawanda

t the ‘Tuscaroras.

at the Tonawanda

Indian Reservation
is unmindful of the admiring glances

Jacob, Seneca vt the. “Layugas,

ceremonies,
of the younger members of

Baby Barbara

Timothy Pickering and other asenls
of the new ee States of Ams

signing away
their rights to “the lands in and

) BATAVIA

249 W, Main St.

Really, you can if you send your washing to us.
Have a free day to do with as you like—go to
the beauty parlor—do your shopping—or catch
up on your sleep.. Let us take “blue Monday’,
out of your life—the cost is low.

“Where they're kind to your clothes and easy on your purse.”

SING

A Song Every
» Monday!

LAUNDRY

Harry Fotch, Mer.

Dec.

“Tb,

1940

west ofthe Ohio Valley.

Red Jacket, played by Clilef Wall
of Iron, counseled ‘against the
treaty,

“Brothers of the Longhouse, in-
sist that the new boundaries shall
be those agreed upon in the coun-
cil at’ Buffalo Creek,” he - urged.
“They must include ‘the Muskin-
gum line, ‘It is this line, or the Six
Nations do not sign.”

Played With Fervor.
tors played their’ parts
with convincing fervor. The war-
riors and " assembled ~ sachems
growled approval, the lighting etch-
3g hein, “high ‘cheek “bones and
face pail
Moceasined fect thudded in the
broad hall. A messenger, Eagle
Feather Dancing, raced down the
center aisle. Breathlessly he told
Red Jacket that Big Turtle, war
chiéf of the Mianie, had been beat-
en at Fallen Timber by Mad An-
thony Wayne.
Red Jacket tumed to the sach-
ets aroun:
“Brothers, “iets the end,” he
“Our’ cause is lost’ We must

‘Orie by one the chiefs of the six
nations put ‘their. marks on ‘the
treaty. Red Jacket was last.
sighed, then hurled the quill from
him.
full on his face,

“We stand asa snfall island in’

‘| the midst of great waters,” he said.

“We are encircled. We are encom-
passed. Wild spirits ride upon the
wind, The waters are disturbed.
They rise. They press upon us.
The waves settle over us. We van-
ish, We miingle with the common
elements, ({What marks . our
tinction?
The hide

choir. took up.

He turned, the strong light H

e disappear forever,”
again

the melancholy chant of the death
song. Dr, Parker closed the cere-
mony on the fading scene against
this, backgrou

out ort the building. The sun. was
dying; red in a purling sky, Snow-

i
ite folk fen Red folk filtered

songs

drifts and road ice were rosy in z A

the light.

Peter Doctor, oldest of the Sen-
ecas, looked across the hills nee
the wind made a track thro
He told of’ Ts

1861. A
smile creased his leathery features.

Cabin in Rochester.

in cabin in this | &;

“My cabin is in Rochester Mu- | ypy¢,

seum now, but my mother’s cabin
still, stands down there,” he said,

pointing down into the valley. “My
mother was seventy years old

when she died. I do not pass her J j,

cabin “often.
funny feeling.”
is mother was a great. woman,
he said. Her Seneca name was
“Carrying Voice.”
Peter Doctor said he still has a
farm, but seldom works it. His
‘ingly features. creased in another

es a man a

oethe sun farms it,” he murmur-

He

Peter Doctor looked at the glow-
in the clear Wintry sky.

people were civilized peo-
ple with a veneer of savagery. Ov-
er there white men have turned to
savagery with a veneer. of civili-
zation.” (He waved vaguely. to in-
dicate great distance.)

easy to select a room or
quarttent which
those “advertised
News Ch lassified. columns,
i deed

evel

conver

cusses
65. ibe


f€ UNIVERSITYATALBANY peer

MLE. Grenander Department of
ZR") State University of New York

Special Collections & Archives

Heury S. Hlabieg Papers, 1g44- 14ue

Gevies

Sy. Box |
ESET TION

FOLDER ?/
Date ec. 14)

iS, vA attic Charles

Fact

Obyection to Defendants Proposed Tr hes of F
and Conclusions ob he

1400 Washington Avenue, Albany, NY 12222
pit: 518-437-3935 Fax: 518-437-3930
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Bavba yells b/ 201%

URIZED STAINS LESTADCE cover
508 THE WESTERN Risteic? OF ey tom

SSETED STATES OF amma,

}
Miaiesiet } SEmetmos te
} FIs oF
te ‘| Piet agb @acicerons
} OF Lae.
HATTIE CHARLES, }
Defendant =)

The shows entitled case coming ou to be heand tefore
the Hosorable Harold &, gezke, one of the Judges of said avert,
o the 24th day of Febreary, 164i, st the court house in the
Sity of Gochester, Sew York, on notes of hearing to enter #ind-
ings of Fuck and Conclusions of law, plaintiff appearing by
George L. Grobe, United States Attomey, & EK. Soran, Aesistent
Unibed abe &, &. Banisls and tukeoy 5 Special

‘the Attomey General, and the defend. a
by Heloun T. Barrett and Beary 3. Barley, abtemeys, the plaintiet
shove named herely makes and files the following objections to
the Findings of fast as doy the t

Ee Pisinie? objects te defendant's a findings
of feb No. Z upon the gevael end for the ease thet there ds no
“geeord af any action taken upon te alleged petition eeferrad to
therein and no preef of ay action upon the petition ner sny ac
soptance theres by the State of Sew York.

TE, The plainer ot to the defendartte proposed
finding of Zaet Fos YE reading: as follows
This legislation was a by

the % da Band and app oa
substantial sajority of ite menbers.


pon the grounds and gor the ceasem that no evidenee te that
affert wn introdaced at the trial.

Tit. The glsintisz te defendant's proposed
S% is weslly irrelevant and Samsterish, no proof offered to
wusteln the finding acd is a conclusion of Tew rather then a

finding of faethe

i¥. Flaintare te Gefendant's proposed fnd~
ing of fact Bo. 13 apon the grund and for the reason that no
proof was offered to sustain the samo and there is no ewidese
in the yacord evstaining that finding and for the farther pesson
thet the same is @ qaclusion of law-and not a finding of fact.

Ye The plaintiff objects to that portion of defendantts
proposed finding af feet We. 15 te sits “Yor over sixty goers
densdistely prior i thet date be Liwed therson and used and
to gvowe any isstes im the ease and om evidence offered er re~
ceived swtaining that findings

Wie The plaintaef objects to the daferdent‘s proposed
finding of feet No. VE epon the ground and for the reason thet
the same ie irrelevant, is a waelesion of law and is net sup
perked ty any evidence an the case.

WivThe Haintit? objects to the defendant's p 5

Finding of ack Bo. EX wyon the growsd and for the reason that
the seme ia not suetained by any evidence im the cass.
FEIT. the plaietig® objects to defendant's propesed
finding of fect Bo. WIE in so fer as the came velates to any
Gesd feast ax there is no evidence Gi the caus to santain that
finding and all issues with respect therete vere stricken from
the resord.


Te. The plaintiff objects to defendant's proposed
finding of faek Ne, XILE open the growed thal the same is
devant ond & 2. ond refers to nether ani didferes’.
action vidch embcined so iesuce welevert to: the inetant cose
aed we detersiced spon ether ad seperate issees then tose
iwecived in the intext case.

K. The pisintiff objects te the dots bts pio
poued finding of fact Ho, TEXT upox the ground thet the same
ae sot oust a uy any evid: an the csse and thet ao proof

wes offered therein. ;

Wi, The plainige objects te that portion of the
Gefendenk's proposed Slading af feet Jo. EXE an follows:
*5% the time of the offer of eale by the Eeferse, and xith his
anguieecence, slew: I. Serreli pollichy & ami st
that on one exept a cd ef the © da Band
nad 2 Pight to or would be permited ta bid on or purchase the
peeniaes.* open the ground end gor the reasen thet there wes
mo prosf offered upon thet eatier and that the said proposed

isdieg of feck is aoS a by any ism the case
and Ser the ferther reason thet the suse ie ierelevant and Geb
any made ty Rel t  eeukd uot ond did aot

senteol the orders of the court iewsing the order of sale and
wes antagonistic thereto.

Hit. The plsieiiff objects to Gefendantts é
finding of fact Ua. 37 and partieularly to the following portion
te wits “shich che amd haw r a. We appesd was
taken free any such preesedings and ties fer appeal bes expired. *
apen the govund thet the same ie irre apa and
ao proof eas offercd tp sushain exch finding.


REIT. The pleintite objects to defendentts pro~
posed Gading of fact Mo. 36 upon the ground end for the
Yeates thet the same ig Serelevart end imenterial ani does
aot fend to prove ay iesees im the come.

WY. the plaintiff objects to defendant's pro
posed finding of fact No. 39 upon the gremd and for the
weasen thet ¢ is terial snc sed dows sot
tend to prove any iasues in the case aod is a conclusion of
Lew end sot 2 finding of feet, sepeeiclly the classe, “aed
have leon effectenl for that porpose™.

S¥_ Tee Giaintif? chjests te the def: 's
propssed finding of fact fo. i apom the ground and for the
reason thet it is imelerial, irrelevant, ast tending to prove
any issues in the esse and is a af lew a of
a finding of fact.

the plaiwtiff cbjectse te all of the conclusions
ef law proposed by defendant won the ground and fer te reason
thal they wore not sustsined be evidence in the cass and com
tained a iapreper judgeont on the tacts of the cane.

“SPECIAL ISSISTAEY To Que APTORIEY GUNTRAL,

Secartecereratcamarersnessrtereneransereareesteummetnmteeemmetrenraeee

UNIVERSITYATALBANY

} Stare University of New York

Heury on lawliy Papers, \S4H%— [Tuo

Gevies | __
Description te
Date Cc. 1494

U.S, ve Hattie Charles

Brief ef Placati ff

Note — Please Coby entire bried.
The ple
ale 4 W

Tree he
a

1400 Washington Avenue, Albany, NY 12222
PH: 518-437-3935 Fax: 518-437-3930
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ME, Grenander Department of
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BOX |
FOLDER 2!

Barbasallo b- 2olg


DISTRICT COUNT OF THE UNEPED STATES
POR THE WEBTERN DISTRIC? OF NEW YORE

UNTTED STATES OF AMERICA,  )
Plaintage

ve { BUIEY OF PLAINTIFF
)

his ease has been before the Court for considera
+4on apon Legal questionsby the presentation of three separ~
ate motions. First, the motdon to dismiow, made by the de-
fendant, which was deniedy second, the motion for summary
judgnent, made by the plaintiff, which was denied, presumably
upon the theory that there existed an issue of fach with

vet to the ent existence of the Yonsolation or
Dead Feasty and third, a second motion for sumary Judguent
after the compleint was ded to eliminate from Ad

tion the question of the existence of the Consolation or Dead
Feants

In view of the familiarity of the Court as to the
governing principles of law with reference to the Wew York
Indians, no extended citation of declaiens wilh be nade, Lor
it must be conclusively preeuned that there has been deter
ntined in this case the right of the United States to bring

the action, ite supervisory control. over the Tonawanda Band ot


m2

Indians, the duty of the United Btates to praserve the
Tonawanda Reservation Lovact, ing to the thes of
L784, L789, WA. The contd of the da Band ag
& separate tribe is recognized by the lewe of New Yorks

ghe prohibition by Federal stetute of any alienation of the
Reservation ia eatablished by many deeleions. There thus

dina fox 3, tion very waphe end Llinkbed Lasuede.

Ab tho thne of the py on of tha i!

at

for 3 i 8 + wae made of the Court
thet in case of a denial of the motion for
the Courh indimeto what iasueo of fact ati. remained to be

teled. Ta he with that

quest the Court stated that
the only iseues of fact to be considered in the case were
‘theset

ke durdadigtion of the Chiefs Counell, aseording
te the eustows and usages of the tribe to determine dleputee
veletive to the possession of such real property on the
reseyvablons

2. The custome and usages of the Tonawanda Ind of
‘Indians regarding the right of possession of rool. property
upon the death of a decedent menber of the tribes:


» 3m

Th may be ansimed, therefore, bhab, except as
to the issue relative to the juriadletion of Chiefs tounndL
to setthe Land diapates, a2 other isavea in the ose ave
either issues of Law or have been established as facta by
adwivalom in Pleadings or by affidavits submitted.

The right of the United States to vecover upon at
Least one beanch of the gave and upon one prayer of the

complain’ mst nob be fused with the idevation of
iseuse of fact upon the question as to the jurisdletion of
the Tribal. Comell to settle land disputes The eoupLaiat,
in effect, sete out bye aaucod of sotion or elaine for xe~
lief. he Government seks an adjudication as to Wo mate
ters, each one separate and Aistines from the other. As
elaine for relief, the Government allegess

Le what the fetbel Comell ware interfered with
and prevented from aeting with reference to the Land diapate
vy a weit of propibition iesued by a Suprens Court of the
Shate of New York for the County of Erte.

Be what the Supreme Courh of the State of New York
for the Comby of Genesee aseumed jurisdiction of an appLioa-
44don for a partibion on lends lying within the Tonawonds Rex

servabion and did and ember jd, i thet Lt was

necessary to sel the Lands at @ judiclel sele for the pure


we hm

pose of distribubtlon of the proceeds of sale among the
holrs.

Yhat thereafter an order of sale was made and
notice of sale published providing for a sale of Land lying
within the Tonawanda Reservation at public gale to the
highest bidders that such a sale was held and an order gon»
firming the gale wade by the same court and themesfterna
deed wag iseved to the purchaser. Those are the two clades
for velief. ach ome is enbltled to stand by ttwilf with
oub reference to the others

The prayer for relief 1a as follows:

WOEREFORE, the plaintiff prays that

the said purported conveyance to the sabd

Hattie Charles, defendant, of the lanis

herein deseribed, be cancelled, annulled,

set aside and declared vold, and that all

of ali » courte or of~

floers leading up to the sake thereof be

declared. void and in excesa of their juria«

dLetions
Theat the restraining order and injunc~

tion of the Supreme Court of the Stabe of

flew York in and for the Gourty of Erie, and

hareln referred to, be declared and adjudged,

vold, Liiepal and without authorlty and ine
effective te govern er control the action of
eeld Chief's Comelly

The Government la entitled te recover upon edther or
both of sald claime., Uf, as a matter of Law, the Government te

entitled to have the deed granted hy the Supreme Cowrt of the


Stabe od! New York for the County of Genesee eet agide. Sti
2% dannot fat in thie action, even if tha Gourt le not satie~
Sed pon ihe queetdens of fact which have reference only to
the eacond oRetn, nowely, the Interference wlth the Tetbel
Gomeble The queatdone, therefore, WLi1 be dlscutiand separ
wtotye

When it wae determined by the Cowrt on the second
don fox ny gud % that no iesues of fact venained

a

for oonsid tion or determination, except the ismex of
faot ag to the customs and usages of Ghe tribe wlth reference
te the edjudiestion of Land dlaputes, 14 mugh necessarily
be concluded that incefar ae the Law of the male of the
Janda of the Reserveiion ty partitdon proonedings in the
State Courh was betewe the Cowrh, the facta ware eatalidhed
om there was nothing Lett to be done exogpt the applioa~
tion of the governing Law, However, even Lf thig be not aaw
sumed, the adalasions by the defendant im the pleadtings and
by affidavits af wich the eourt takes judlelal nobles,

that the proceedings taken hy the Mew York ohete Court raw
sulting ia a sele of Keservation Lunde axe “proven factsitin

the cme.

mM


tw the ci of this partimiler ques.
tion, there ig Left nm dispute in the evidence. The come
pleint sets out the proceedings of the New York Bhate
Courh which remitted in @ sale of the reservation lands
and theee proveedings are adetited in the anewer of the
defendant, the ‘: dyn, ae being en fellowes

Pay BXIY of the souplaint, which alleges the
inetitution of tho partition progeedings to not in teras
adnithed. but the defendant aintts the hearings and find~
ings of tho Referee. Necessarily if there were findings

there mut heve been @ pending action. In addition to that,
it is a matter of record in thie éane that defendant did
initiate such proceedings and did become the purchasex of
the land under such procepdingss

’ Pavagraph 15 of the compleint, which alleges that
the Mndings of the Ret were app and adopted by

the Court and on order issued, appointing a referee to make
the sale, ia adulthed and thue provens

Paragraph WI of the complaint alleges that the
referge was ordered to wake the sales, and wascdirected std isell
the property for partition purposes et public ection. ‘this
paragraph is ainitted. There is, therefore, no alepute as
to this allegation of the , aad Ib stands admitted


oT om

end proves thet the State Court ordered the sues

Paragraph IVI alao alleges that the referee ap~
pointed was “directed by said court to sell the same at pub«
dio austion to the highest bidder therefor at the ent
to the Court House In the Clty of Batavia, Genesee County,
New York, on the 5th day of Gepteuber, 1936, at ten ofclock
in the foremenn," which allegutton is_admibbed. ‘and: thus.becomes
the undieputed avid ineefer as aubst de

Paragraph XVIT of the couplaint, which sets out
‘the noblee of sale of the property by the referes, da ad«

altied by paragraph XIII of the answer, exoept that the word
‘nobloe! should be substituted for the word *order™. there
ia no issue of fact, therefore, upon thia question, and it
must stand es established by the evidence that there was a
notes of gale published, at which « gale was to be had, and
that the referee was to “expose for ewle and sell at public
auction to the highest bidder," obo.

Povagraph KX of the complaint, whieh alleges thet
the sale was rep to the Court off County

aad that the defendant was the purchaser, La admitted.
Paragraph IST of the complaint, referring to the
nobler of motion te firm the ves ‘e report, is admibted.
Paragraph XXII of the complaint, which elLeges thet
the sole was coufirned by the Court, le admitted.


wh»

the evidence in thie oase, therefore, establishes
that in ‘the partition proceedings in the Supreme Court in
the County of Genesee, State of New York, jurladiotlon was
teken by that court to order a sake of Lande within the
Tonawanda Reservation for the purpose of partitioning an
estate of waich estate the court therefore assumed juris~
dletion That 3 referee was appointed to make the sale
thet a notice of gale was published, providing that « tract
of land within the Tonawanda Reservation would be eold at
public euetion to the highest bidder; that the eae was had,
wae confirmed by en order of the same court and the deed is~

sued and delivered to the purch + The defendant cannot
escape from thie evidence and the effect of thls evidence
even if there are sow disputed questions of fact Left for

de dnation with ret to the juriedietion ef the Trival
CouncLl. to settle land disputes. That question ia foreign to
thie igmme and camot affeet this issue. Therefore, Lf under
‘the lew the Supreme Court of the State of New York for the
County of Genesee could not teke jurladiction of probate
proopedings and sould not make a sale of resexvabion proparty,
judgment must be entered for the Government cancelling the
dedd as prayed for in the complaint.

That the State Court has no jurisdiction to determine
the Indian: lay? of deseent of property has been settled by


=Ga

the State Courta of New York and partiowlarly by the deel sion
jn the ease of the matter of Pabtorgon v. Senge tatlons 245

Re Yoo G33) 445. TH de admitted by both pertice to this ation
‘that the etate lew of descent under which the Suprene Court of

County pretended to aot establishes the Law of descend’
through the father, while the tribal law of the Tennouses °
Habion establighes descent through the nothar. in any event,
regardless of the question of jurisdiction to determine heir
ship rights the Court went beyond thet question and caused a
gale te be wade of landa lylng within the reservation. This
was a sale whieh operated, insofar as the legal effect is »
concerned, to alienate the land of the Tonawanda Reservation, t
and take away from the tribe ite tribal omership, placing
ownership in an individual, This is true whether the sale
wae to an Tndlan oy to a white person. That the purchaser
nappened to be a Tonawanda judian is not material, for the
order of sale which it 1s contended te void, provided for a
gale ab public auvtion to the highest bidder without any
restricblons. ‘The nobice of sale was to therLikeceffects It
ig the invalidity of such orders, notieas of sale, and
gale that is attacked, insofar ae the Court provided any person
making a eufficlently bigh bid would become the purchaser. In
addition to that fact, there was a deed lesued whieh


om 1D ow

vested jm the purchaser title to thie particular tract
of land, thus taking the title out ef the tribal owmer-
abip, which wae guaranteed by treaties with the United
States. Th sonnet be contended that the Tonawanda
tribe did nob oogupy a ebatus ae 8 aeparabe and.
Jependent tribes p d of tribal hip of

the property invelved as thet tribal statue was
veoognived by the treaty of 1697, Li Stak. 795, which
treats the Tonawanda Band as a separate tribe and
fixed thely status ae a separate tribe, Drie tribal
gtatua was also recognized by the State of New York
by Chapter 439 of tha Laws of 1260, page 762. The
Legislature by thet sot z wed the da Band

Ge

of Indians es 4 separate tribe and confirmed the
gighte of the Tonawanda Tribe to the reservation, as
guavantesd by the United States, by this Languages
tthe to pag io lands shies shall

es of this act shall og held by
hia and bie syocessord in office in
trust fox the said Tonaxanda band of
ees who shall, by virbue thereof,
have and hold the exolueive wie,
and enjoyment of said
ends. Anything in the acta of the
Legislature of this state defining the
purposes for whieh trusts may be
ly te the ig mevtael.t ding,

am


«ite

So that the only question before the Court
upon tiie cause of action ite whether a sale of
weservation land may be had by an order of the
state cour. As intimated, 14 is not necessary to
elaborate upon the legal principles involved with
respect to such a sale as such mathers were al],
presented to and sensidered by this Court upon
the motion to dlemiew, ‘The premise upon which
all contideration must be bawed is thet by the
various treaties whieh have been elted te the Court,
the United States, on its own bebalZ, end on
bahalf of the several. states and ite oibizens,
undertook not to "disturb the Senses Nation in
the fvem use and enjoyment of theiy lands*, and
when the title to the pesarvation lands was vested
in the control of the State of New York, to
be held in trust, "Lt was for the exclusive use,
eooupatiion and enjoyment? of the trihe, pursuant
to the treaty of November 5, 157, 11 Stak. 735, and


ow LD mw

supplesenbol. agraenonb of the same date, and ant of the
Regletyar of the State of New York passed April 16, 186,
being Chapter 439 of the Coseion Lawe of L860.

There da no change from the edtveblon whieh was
presented to this Courh upon the mobion to dismiss, because,
dn the 3 ‘tion of the metdon te denise the sl Lege~

plone of tho complaint setting out these facts were ag~

euned to be true and, won thet assumpblon the Court nade
lite raling, The dLlegations of the complaint setting out
thie traneaction are now nob only admitted to be tuna he«

oouge of the notion to dismige, but admitted by answer to Be
taue, and thee established as deteruined facta. The Court's
deciaton upon the motion bo dlades would seen te be auto~

matLeally or) upon the 4

Ta the opinion Your Nonwr saids

S the reservation Lande are held in common
by the bribe although individual meabers of
the tribe wey be jn passesaion of a partiodlar
tract, and such p on ie id by
‘the tatbe

4 a

trike cannot ines title tw any ey patiecan
tract of reservation lands. United Mates v«
Boylan, foupra) « the dodielel, sale by the

if ant ta deed in the pat
tition antion ran ter to thet prt
and purported to convey title to reservation
janda in fee simple. Yhis is repugnant te


=i ~

governusntal, er in a genes = pers
ibeagreshlghe asd Lf Bu

a0, uf,
ag Such. Congress has adopted a ie
of continuing the tribal relations of.
Tndlane and thatr righte as dlatinet
polities! communities, apart from State
interference. Congress alone may vary
this polley. Unihed States v, Moylan,
(Coupes), Until aueh time as Congress seas

£ ® change ib, any interference with 14
either by State legi@lation or by extension
of the juriadletion of the State Courts over
internal affairs of Indians on the ratervation
ie an unlawiul, intert with a g

fonction.

‘That 1s eti2) the lew, and that being the Law the
prayar of the plaintif’ that the deed in question be
ganceliod and seh eaide should be granted, |‘Oeaupying and
enjoying such a status ee an independent tribe, guaranteed
tribal ownership of ite lands and a non-aldenation thereof,
the lew which mst be applied ie wellk settled, Frou the
beginoing of legleletion upon thie subject the federal
statutes prohibited any Interference or alienation of the
Tands of the reservation without the consent of the United
States. The Court's attention has been heretofore called
to these statutes, but for the purposes of reference the

Courtts attention is directed to the followings

Gee. By
That no purchase, gr sa
conveyance of Landa, or’ of any tle or
sleim therete, from any Indien, or nation
or tribe of Indians, within the bounds of


—T

~ 14

the United States, shall be of any valldlty
40 Law ov equity, unleda the same be made
by bad oe convent lon, | entered inte

te the pod

ord 3b
shell. be a in
not employed under the uae ef the
United Ghates, to negotiate such treaty
or convention direstly or indirectly,
to treat with any ouch Indian nation, of
tribe of Indians, for the title or pwr
dhage of any hands by thom held, or claimed
puniehable by fine not exceeding one thousand.
doklers, and ange tannaent not exceeding

twelve months:
it shal, be Le a BELT!

of ay atote, may be present ab ony treaty
held wlth Tndtene, wider the authority of the
United States, in the pr y anlicoity She

don of the digd.on

of the United States appoinbed Pog hold the game,
to propane to, end adjust with the Tudiana, the
compensation to be wade, for thely clains to
lends within ouch abate, which shall be axe
tingulehed by the treaty.

thie seotion of the Act approved March 30, 1a02,

te

d in Loree without change until 1634, when the sau
was reeouacted with @light modifications as section 12 of —
the sok approved dune 30, 1634 /F State 790) Revised Statutes,
aed. 216; Us Se Code, Title 25 (Indiane), soce L777, the
present Lay on the subject.

Shore ean be no ilon ag to the Liy of
Congress to,depege this reetriebion on purchase of Lands from
Indien tribes. The constitution clearly confers auch powers
Regtrietions on the alienation of Indian lands are clearly


wn

wibhin the ecope of congressional pow Thy courte have
upheld euch authority in a hont of deelelons and have ene
fovesd Liattations in many forms on alienation in a wide
range of caves. YUolhed Shates v= Candelaria, RT Welle AB2y
Hoskuan v+ Uolted States, 224 U.S» 4039 Eeanlllin vo Umehs
B99 UeS. 200; Grlhes vw Fisher, AM Ved, O40) United Shabes
vw Boylan, 265 Ved. 16, end momerons other onsets

{ha Supren Cowrt in considering the Tadens*

Fight of ogeupanuy in the case of fhe Hew Xo
Yihg Thy wulds

ae # © SUL agree thet the Indian right
of acoupatey creates an indefenattio tithe
to the yeservabions that may extend fron
generation to generations. « % #

Tn deolding the case of 0

3), UsGe Ly ST, the Supreme Court aalds

‘todlane have rigote of oooupancy to
thee lands, o# saored ad the feoowlople
avoolete bible of the whitey tut they are
only eights of ocaupanay inempable of
alienation, or being beld by any other shan
coamon right, without pereaiaaion from the
governnart.

ve Bovhany, 265 Made 165, Vib, Ue

ia shoteds

We do not think thet the Skate of
New York could extinguish the righb ef ae~
onpanay whleh belongs to tho TndLont.


i
}

ow LS Bw

AS shen by the above declalona, the right
of oagupancy ia a9 eacred se tho fee. ‘Thie must be
brue, otherwige the tribe, lende would in many dpe
whances be transferred to a white perwon, not a member
of the tribe, and the tribel ownership thus lost, but
it de not mavessany to reet upon thet principle, be
sause an thie aave there waa no agle of the night of
eqeupanay’s ‘the order of the Court, the notice of sulle,
and the deed, purported to convey a fee simple title,
and whatever vights Hottie Charles got by the covenants
ovdered by the Courb was a right te Land Lowelt. a
At were nob wey then the deadiwas not in harnosy with
and pursuant to the ordev of agile wade ty the Courts

Tt de veapootfully submitted that the acbien

of the Trial Gourd im desuing a dead te a tract of Land
within the reservation ie a Glagrant vieletion of the
rights eff the Indians, which the Undid dhates Le
bound by treaty to protects


= 16

As heretofore stated, Vie Court deomed it advisable
to receive avid upon twp 4c. which were stated by
the Sout as folLowes

he ne ago af the © bigpen Hounodh,

the of the

tothe to ernton aieputos wn moat te

the possesaion of such teal property on the

nouomvatlong

‘The ous a

Band of Tadians® partir ee sigh of pote

seasion of veal, property upon the death of a

decadent member of thy tribes

Tt seous to the Government that the questions es

stated were too reutriotive and did net contain one of the prine
oipal, ib to be daered ba the td

ef the quest4én as to whether the akate court had juriedietion
to isove a wht of prohibition againet the Tribal council of
the Tonawande Bend of Indians. ‘These questions are Limited to
the gustons and usages of the tribe, when, ag a matter af faet,
the predominant question must be the Jaw of wie tribe, for
guaton and usage might be in vieletden of the Law of the trike
and if the Lew of the tribe vested in the Tribal Cowell, the
right to subtle Land disputes no usage of gustomy, ever ag
portielpated in by 6 large mjotizy of the indiwiduale on


ag

we 7 ow

the reserveblon coold change that lew, The pertinent wl-

Legation of the hein’ te net weetrleted to custom or

urage bub vefers apeolfically to the Law of the tribes
Paragraph KILI of the compleint ellegas:

#* 4 and thet sald omler was served
wpon said Chiefs' Gounedl and upon Gertende
Mlackehiel, and the seid Chiles! Gownell
was thereby pr & from de ining the
right of exenpancy of the Lend herein In~
volved or teking any eotien in relation
theveto and thereby depriving the Chiefet
Couned. of ita juriedintion wated da it in
relation to such matters by the line and

af the T da Band or Tribe
of TadLanit.
that the queetd upon which evi waa to be

ovtaltted were too restrlotive wes clearly show when evidence
was sought to ba detveduesd as to useage and ovetom. The lew
af the telbe ae a tribe could be established by the teotinaay
of Chieda conversant with the law, bub to prove usage and
euvton becana diffieuwlt, aa the Cowet will, vemeuber, becacue
4% required nob on opinion of whet the usage and custom war
but just what was donee

There was no subetential confliet im the evidence
as to the tribal Law, except that some wonders of the tribe
thwew avide the old and establiahed tribal law and eougkt be
govern themselves ond the tribe by folowing the antagonietie
law of the State of Hew York. Fractiosliy all of the evi~
g@enee in behalf of the defendant when analyaed went no further


ene

wo DS

than tw prove thet thavre were two factions among the
Tadione of the tribe, eng operating under the tibel laws
god the other under the Laws of the State of Now Yorks Bo
thet 1¢ Le not heve really a question of usage and muetomy
but a question of which ie te govern » » the old and eau
toblivhad twibal Law of the tribe, ov the Lave of the
Bhbe of New York, whieh, ag the Courk kngwa, have been.
held not to he applicable where Indians stil mdntein
thely sapevate tribal whetie. fhe elination de further
eohaviiahod hy the faot that the testimony of both the
plaintig? and defendant establiehed that there was bat one
telbel. courtll, (fre Lk}.

the Tonawande Trlhe te subdivided into wight eLens
(Tre Voy Pre ddwhSs 1926" jy represented by Chiefs varying
in nunbey from one to three, depending on the olan (Tire dduilhg
Tre L269). The mothers or matwone of a olen elact, by rule
of the majowlty (fre Lad), the Chiefs of the olen (fru AdekS;
‘fr UNS), After gelecting (te tutef: or Chiefs, the olan
again avaoobles (Tv, BL) Pow a ceramony (Tre @l@), The
Chiels serve for Life (vy 2%L8), or unt rewoved by the
din which appointed thes (au indisetet by the testimony of
defendant's witness, Chief Aaron Ha Poodyy, at Tin 159Ra)s


oe Fw

the Uhiela are the reyrecentetives of the ¢lan
which seleota them (Mts 185° J. ‘the Chiefs hold counetla
ond in thedy collective oapaclty ove known ae the Chiefs!
counehie The Ondefa' Coumsll representa the tribe ard

eon tL the g log body of the telbese The Obiedie!

0 ae

Ly ae am 4 Lon of these Indiana, and the jane
ner of seleoking the Ghiela, exiete now and haw always
exioted, ts etated by defendant's witness, Meodeme

Belles, “She Chiefs are the governing body of the Regorvax

pote" (fee L6eeLj. They corrtitube the tribal anthorbtys*

{re 126618), The Chiats! Counel, te ag 44 always has been,
and 14 de oti the governing bedy of the trlbes

The testiaony of defewlanbla whinegs, Raley,
alearky shave that in the 4 yy of the defer there

was nothdag to aetablish any lack of Jueladieblon of the
Uribe, Counell, be getthe dlapuber aa to Land tithes, une
leas 1% could be found tn foMlowlog the state law, Ef the
‘ekbsl, Counoll, were stil). the governing body of thy xesorvae
tion they certainly had the right te pass upen the question
whieh the state court p 1 them from paaeing spore

, in view of the fact that Lb te now the settled Law
of the State of New York that the State hea no Jurlediction

over the Internal affairs of the reservation, and that the
Tribal. Councks covers the affalre of the tribe, i att hea


= 20

ierladiotion te sete land dleputes. Kote this teatd«
uoney of Batley (ire MQL6a)s

Oe Mines the adaption of the Jew York
Stele awe heve there boon aeagee
end onstenn of the Indhen Band in
contliek with the awe?

Ae Tithe

Qe How Long did that contdamet

de Up weed, 1907 wth the beth of the
Hatioh Luckman Gatos

THE COURTS You say up te 190? there were
quatems and usages of the Indlane
in conflict with the State lewe?

THE WITNESS: Yor,
TRE COURT: ALL right.
THE WEENESSe LOOT om

THE COUT: Let me ask pou a further questions
Te whet war did 14 confit?

THE WIINESO: Welly the consolidated luwe Ladd
down the vole an to how the Indlong
wera to conduob thela affaires, and
the confliak wie in the persiatent
eftorh and attack of certain people
who dling to the old customs, aver
ping that they ave obll the Law
of the Indlens.

Qs New, alnee 1907 what has been the olevage
between the Laws of the State of Mew York
with the ugagee and eustens of the Indione?

de A dowleion in that espe, of course, lo a
anbter of record, and in general ib upheld
the pow of the State Court.


we BT, ome

it. LANRENCI: That sao was that?
‘THU WITNESS: The Dabeh Luchwane Wolly that
AOD

th the entky oney there hes
been where, 7 know of one other
partition actLon on the Resexra-
tien that wes entertained in
Suppene Coot of tebe Seam of

Skye against Povneliue cexpenter
and others, and Charles 2. Wheeler
presided, and there war a flan)

parowl. of Land wpon the Touawanda
Resoveation te the two contestantigens

Thus, 4t clearly appeara that the defendant is not

eelping in the defense of thie eelign upon ony cnetos and

usage of the tribe, but upon the Hatch Luskman ease, which
woe overruled by the Pattetwon and suagenting casas.

Keo mle the following eeotimonyt

(Tire pe 2735 174)s

ie
fie

Re
dn

Qe

the

Ms,

Xe the Charles case the fireh ones

thie Charles ease and beok tn 1907 the Heteh
Yockoen gage, a oinkler altwatien to thie one.

That did nob oom before the ounall?

Noy Lt wae endeavored to being a writ of
prohibi ton.

ce analienc fio Byrnlpoorygcomecor
determined any tite te weal. property?

X don’t knew of any in my times
How tom: news you been faniiing with the

‘ cond tlons?

we BO ww

Ae Wolly T came back trom echo in LOO?)

& Ginos 1907 has there been any detenna
ton by the Counoll »»

Aw Boy

fle «~ af Dithe, regarding tthe on the
RevorvatiLony

dy The Yaboh Tnckew ease atopped any atbompts
Q> Theh wee a Gheke metter, waon 46?
Ae That was @ Shate mathery

| & You day e decadent a property ab the present
‘tue on the Resexvatlon La governed by wm

Ay The Olvil, Law, the Civi2, PyawhLee of the
Semly ta whieh we are abtuateds

F Ge Under the Laws af the State af New York?
Aw Yose
Qe ANd nO obhex way?
: Ae New
We BARREL: You may asks
Wt, IAWRNNOR: Bo oroae exaninatsone
‘Mil, BARNET: Chet La alls
Or, as defendant's wlinesa, Feintup, toatitieds
(tee pe VIB) 279)
a. wentyetive or wore years ago, bub nob we
“you did not anaway questions bid

over hear tue Counel. determining titles
to any voul proportiy ««


ee

~ 23 »

THE COURT: He said the Peaoumakers were @
: parh of the Counohle

QE WET: The oonnelL?

Qe Fete

As Yeo, I hove heard that,

THE COUNT: Go ahead. What were you going to say?

TSE WEENRSS: You seo, the Veneemskers? Genz
that we hed aver thera, ae you
know, the fipet step they take
attlon upen controversies or any
thing of thet kind, and then after
the deterainatian of this Peana~«
mekers? Cours elther party eon dae
satlefied with the reauita

al to a bigger tetbone eb
thiefe? Couned,
Of equrea, the Chie:

THE COUR: You say that that hes been the
ee SS ee

the F 1 Geant
te the Chiefs? Commadi7
THE WIERESEs To the Chiede’ Counodle

THE COUNT: Ie that #421 so?

THE WITNESS, Bot oo mach so now, T presume, on
eenount of the Limitation by lew of
the porors of the Paacemskera,

The dower’ s he aleo d bed to the

+

yw af the wht » Poodry (Tre 125, Tra 186, and Tre La?)
whieh la alec interesting on the qastion of the conflict tee
twoen the tribel law and the state Law ae to the Lawa of decent,
an TolLowss


Qe

Aw

Re

de

he

~ Bho

ple ait tn tsa ao
@, | you spoke al way
daaoont of real property, theough he
other's wide ov the father's?

Th wasn't ekther one of the two «= Lt would
heave been taroudh the avtherte aides

Yo. The albuation with reference to the
Jaws, the Tribe ie governed entively by the
consplidated Lawe of New York, dant, 10?
What wae the queetion?

The situation as to the conolideted Lewes,
the Tribe is govemed antirelly by the aon-
aulidabed Lowa of New Tork, dant) 20? —

Y wouldn't say entirely’ ee far a6

‘oatlyr
the consolidated laws are applicable to
than in eomeotion with the Chief’
Goumedbhe

You accept the consmiidated laws of New
Youk ac governing the Tonawanda Tribe?
X dow

As governing the Laws and customs of the
Tonewands Tribe?

Th works in conjunction with ‘thom

You sneept then ao governing the Lew
payne ok the 2 da Tribe

with the provisions of the Kew Zouk
State Lew, yots

That io what you call the vew ayeton?
Wel, 2¢ is newer than the old systems
the old system La the Tribal, Counolh?
riba, authority.


a

Qe

As

Theb dey the Chiega! Commo?
You, that da the old aystiine

‘the Telbeats pry! wie ‘the
Chiefs? Cowl hed the pawer ever
hank deputies pelos be thet Mune?

t couldn’) wi, too unk with water
woe bo the awshoriiy they bad at
that bimen

{hie testimony choavigy ehows thet the tiibal Law
wos Gti dn exietence and wae abil. operative volega the

wtate Lawes of Kew York, knows as The Consolidated Lowey

governed Indien affelys on the roaervations Of eourae,

that queatien of Lew yea been settleds Thle witneda says

that except for the Lawe of New York the firiual Counet
atid had jurladietlons te salds

de

Qe

Wikhin wy seepe, ae far as the
records are conoernads

Prbor to the paswage of the New
York sonuoliiebed awa, the
matters ware settled by the
Chiefe’ Gounwli., weren't ithey-?


» Abe

4a Loowl mebterst .

Qe Yate

de ‘They had quxtome and usages. How mach
authority they had, that la comething
T wouldn't evan atbemph to snawor's

Qe The Chiefs) Coundl) sethled disputes
on bo title?

de ‘hey wore sibbing as a reprenentebive
oe es and what. Vhey done,

Oy ‘they were the authority of the tribe

do = Repwesonbing the Trilha,

“Qe the Chine?

fe Tet, sir

Qe dince when?

As showby T whowld aayy evound 19R46

i io thus cleavly apperent thet the gaged developed
inte neh a enemlesion ef evidence upon the qudtomscand.osages
of the tlhe as requested by the Court's wiling, but in ef
fewt developed into a contention that the tribal lews did
not govern and that the Oblefs' Council, did nob have jurie#
diebion as fe y over land dleputes | of the State
‘Lew ond thet under the Hatch Iaukwe ease and the Indian law
of the State of New Youk ouch questions of title should be
webtled ty the State courte. Under the adtuatiens as dow
veloped, the plaintiff le entitled to a judgment holding


we BY 0

that the state cout had no wight to interfere with the
Jjuriadietion of the Trbbal, Gouncil, which wae oreated by
and operated under the tribal Lav, t the jurhedietden
of the Tribal, Couneld wtih extleted, dnasmuh at a atete
iow wae lovelid eo for a8 affecting tripe) Law la consertiads
Tithe Ratbergon cate, 249 Wekas dby boo Court

aadads

x That quewtdon mot be deherainad
by the self-governing Geneon Sublony
through te counell, ascording to
Seneca laws, usages ad oushona, Th
hag nob been shown thab the eouned. has
tated te ig oig any Lew ox custom ap-

0

a4 anh tank
P ti )

the Govevinmen’ preduced the reoord of a Special.
Connfibee of the New York Assembly, appointed to Investd»
gale the Indien problem in the Gteie, aod thet comalitee
found and reported te the Acnewhiy on Janvery Dl, 1889,
ative vo the ‘vibe, thate

: ter concgraing Lands Lats ly
degoeied Indlens are settled by the Gnletds

New York Assembly Docume Shy 1009, ve 59, wladotlit's
Eebdbdt Ty :

fo onetom pertigipated in by a portion of the
tribe in athempting to follow the phate Law could change
woet 49 reequilved by 211 the courte as the right of the


Tedlan cwerniag bodies to conten) deatatens wpe

aia quegtioas an sae hepa tevelwads The detente 4
deew nod dontend that the Chiwde? cometh dows not, |
under tela ium how jurlediakion to aebtle lewd daw
putes, lat contends that trite tew dees not now axles
Kenan of @ uoRge or unten of som of the Tadhenw to
Solow the state Law The state law asnnek be weed in
thie sane to defeat the juriediotien of the Chien’
enna.

TG de tog thet the sonetiteblen
eet ny, ak (he uation Sash lume

ravladons of this Come a Chote
i} gee no coment thet Ge momen law af

be soditied by guclae Legal
ae & conde wet

RAMteNAON Ve Senne Netton, ZAI Hats 469.


ph

we 20

x haa been a well settled law of the Pederal
courts ince the devision dn the case of Yorcagher vs

the Giake of Geomgia, 10S, Ch, Qldy 2435 6 Pet. S13By
that the exclusive gontrol. and juriedichion over the
affaires of all Indians, wards of the Government, ie
veated in the United States and its courte, dustiee
Marshal in thab case aakdy

The Cherokee nation, then, ie a
distinet community, occupying tow oven.
territory, with boundaries acauretely
devoribed, in which the laws of Georgia
gan have no forse, and whieh the
oltizena of Georgia have no right to
enter, bub with the assent of the

a th Lvom, os in ty
with treaties end with the acta ef
Congress, The whole intercourse
between the United dtates and this
nebion is, by our constitution and
lave, vested in the government of the
United states.

In the case of The Kanga Tn § Bal. BY, M7,

the Supreme Court of the United States aids

Aa long os the tiited Stated
reoognizes thels national character
they ave under the protection of
trasbies and lawa of dongresa and
thelr property le withdrawn from the
operation of State Law,

In the save of Reborg ve Malin, 111 Fy Qidy the
sour eadds
6 is apparent that, if the various
provisions of the laws of Towa are to be

held applicable te these Indians and
thelr property,


3 z0N bs ib through bhe
forcement of the Lawe of the wtabe, ww
and further on dn hia opinion he addax
Although these Indians revide within
the territovial liwlte of the state of

towa, they are, so fay ag irony riage
dite ad poring we...

‘The defense in thin cage has asked the Court to
debteraine that the Gounet. was nob the govewning body, and
thet the etete laws heve teken the glace of the twibel, Lawe
which gave authority to the Goungil to settle lend dleputes.
Bven if 4% were a mabher of comparing the evidence in
behalf of the plaintiff? to that of the defendant, 1%
appears thet the plaintiff's whinesses testified apeotfically,
as to the present authorities, while the defendant's
witnesses tesbified only ag to s portion of the Indians
on the Reservation following the Gtate law and which,
in thelr eplialon, reliaved them from the tribe). law

1% ia respaottully submitted that the Laws of
the State of New York can have no force or affect as aguinet
the aattied and established tribal, laws of the Tonawanda
Bandy that under the tribal. Laws of the onswanda Hand
the Chiefe! Counel. had full. juriediction to settle Land


- 31»

Gaputess that euch jurisdiction must be held te have
continued because there has been no setting anide of that
telbal law or annulment of Ghat jurtadlotion by the Indians
themselves and that theefforta of the State of New Tork to
establish a eyetben of Laws velotive to the settling of land
dlepubes must be held abortive, Gertainly, the Jurisdiction
of the Tribal Connell. os a governing body of the Tonawanda
Rend wider the tribel. Law wblob hae never been repealed by
‘tha Indians cannot be taken away by the acta of individual
members of the tribe voluntarily subjecting thenedlves to
the abortive state laws. Thilo being true, 14 ie evident
that the fribel dowell was py hed from oxerateing Lin
Yighte as « governing body of the Tonawanda Triba and that
wien the Supreme Court of the State of New York for the
county of Genesee attempted to tall the Tribal Goumell 1+
would nob ach sasording to Lt conception of the tribal,
Lawe, then bhe Gourt exaveded ta jurladietion and the
weit of prohibition dasued anet be held to be voldy

the very fact thet the defendant sought a
weit of prohibition te proverit action by the Tribal
Gounel.. de an adeleston that the tribal law governed
and the Uhlefa! Council had jurisdiotion te settle land
Giapubes for the theory of the Department was that the
Counell Lest jurlediotion because 1¢ was antagonistic


= 3~

bo the Sbate law The Stabe Law not being operative,

as we have seen, the Counell still praserved jurladiotlon,
whieh they wore provented from exereleing by order of the
Stabe Cour,

throughonk the trlal of thle aase the Government
has refused to be draws into a consideration of the dladims
af two individual Indlaus au to the ownership or right of
aooupanoy of Land in the Reservation. Tt te innaterLal to
the Government whether Hwttle Charlee ie the helr of Anna
Mowesy ox whotiner Gertwude BlackobLef ta the helix of évna
Noses, What the Government Je interusbed in is thier

That as to one cause of aghlon or claim for
relief the abate courte of the State of New York have aold
without restriotion and given a deed to reservation Land
and ag te the second cause of action or claim for relief
‘the Supreme Cours of the State of New York foy the County
of Geneage has agavmed control over the Laws of descent of
the Tonswonda Tribe and has clothed itself with juriedletion
to determine land disputes within the Beaservation, and in


53 =

furthorance of thia juriediotion hae attempted to prohibit
the operation of the Ulbsl coualt aobing under wrepeatled
‘tribal low, ‘These things the Federal, dourt should not
| pormit to be done,