UNIVERSITYATALBANY swomtcceanaaar Desaiseat ot
Stace University of New York Special Collections & Archives
Hewry Ge antes Papers, 1sHA—- [flo
Gevies |
Dinos Op i+ FOLDER |2
Dele 0.1925
Law 187
US Digttct Cornet
James Dee re, ao ot, Regis ve (N.Y. ) St, Lawrence Power
Com bang
Inttrated 1925 by Laura Ke llega
1400 Washington Avenue, Albany, NY 12222
Pri: 518-437-3935. Fax: 518-437-3930
http://library.albany.edu/speccoll/
| Law, 987.
— Anited States District Court
Norruury Disrrtor or New York.
JAMES DEERE, as a member of the St. Regis
Tribe of Indians, on behalf of himself and
all other members of said St. Regis Tribe
of Indians,
aia Plaintiff,
> against :
ty
Faia
fe 4 ST. LAWRENCE RIVER POWER COM-
i PANY, a corporation, and others, with
Ud whom has been joined the State of New
i York,
Defendants.
! ON MOTION TO DISMISS COMPLAINT BRIEF
FOR STATE OF NEW YORK
ALBERT OTTINGER,
Attorney General.
HENRY 8. MANLEY,
Deputy, of Counsel.
J.B, Json Company, Gen, Printers, Albany, N.Y.
Anited States District Court
Norruurn Disretor or New Yorx
Jamns Demrn, as & member of the }
St. Regis Tribe of Indians, on
behalf of himself and all other
members of said St. Regis
Tribe of Indians,
Plaintiff,
against
Sr. Lawrence River Power Com-
PANY, a corporation, and others,
‘ with whom has been joined the
State of New York,
Def idan.
ON MOTION TO DISMISS COMPLAINT
Brief for State of New York
STATEMENT
The action is ejectment, to recover part of a
square mile of land in the Town of Massena, St.
Lawrence County, New York State.
It appears from the complaint that the plain-
tiff is a member of the St. Regis Tribe of Indians,
which is composed of two or more tribal Indians
who are entitled to the possession and use of
the lands involved, as commoners; that the
members of the tribe are too numerous to be
named as parties plaintiff; and that the plaintiff
brings this action on behalf of himself and of
all other members of the tribe.
2
The original defendants are the various oc-
cupants of the land. ‘To these was joined by an
order of this Court dated July 24, 1925, the
State of New York, which consented to the
joinder.
The State, represented by the Attorney Gen-
eral, has in this litigation the following interests:
(1)-It is the grantor of the lands involved, and
if the title it conveyed to the original defendants
and their predecessors in interest should fail it
will be subject to the duty, legal or moral, to
reimburse their losses. (2) Plaintiff asserts the
invalidity of a clause of the original State con-
ftitution and of a solemn treaty of this State;
it is the privilege and duty of the State to uphold
these. (3) There are numerous land owners of
this State not named in this suit but indirectly
affected by it; it is proper that the State repre-
sent those interests. For their numbers and
identity it is sufficient to point out that the
present suit affects directly only part of a square
mile of land conveyed from the St. Regis tribe
by one treaty, and that tribe has conveyed 10,290)
acres of land in St, Lawrence and Franklin
counties by this and six other treaties which
would all appear to be open to the same ob-
jections taken against this one. (These treaties
are printed in Assembly Document No. 51 of
1889, pages 369 to 381.) In the 1911 Report of
the Attorney General for the State of New York,
at page 384, it is asserted that more than thirty
treaties of land cession were made between the
State and various tribes, independently and with-
out the intervention of the government of the
United States. (4) In addition to the foregoing
3
interests in this litigation, the State is interested
on behalf of the Indians, over whom it always
has extended a protection and guardianship.
The grounds upon which the State moves to
dismiss the complaint are rather fully set out in
its separate notice of motion dated September
29, 1925.. They will also appear by the points
below, except that this brief has advantage from
the oral argument and a first draft of the brief
for the original defendants; the points their
counsel have argued will not be duplicated herein.
1. THE REPRESENTATIVE FORM OF
ACTION IS NOT AVAILABLE TO AN
INDIAN TRIBE, NOR IN BJECTMEN'T.
The representative action, or class suit, seems
to have its origin in the late seventeenth century,
when the equity courts invented the bill of peace.
(See opinion of Justice Story in West v. Randall,
2 Mason’s Rep. 181, 29 Fed. Cas. 718, quoted in
note to Wormley v. Wormley, 8 Wheaton 421, at
451 and following; Hale v. Allison, 188 U.S. 56 at
72 and following ; note on ‘‘ Bills of Peace in Tort
Cases,”’ 68 U. of Pa. L. Rev. 167.) ‘When the
Legislature of New York adopted the Code of
1848 (Chapter 379 of that year) abolishing the
distinction between legal and equitable remedies,
appropriate provision for representative actions
was omitted (see section 99) but was made upon
its amendment in 1851 (see that section amended
‘and renumbered as 119; also commentary upon it
in McK engie v. L’ Amoureauax, 11 Barb. 516). This
provision subsequently ‘became section 448 of the
Code of Civil Procedure, and now is section 195
of the Civil Practice Act.
4
The history of the representative form of
action casts doubt upon its availability to the
plaintiff in an ejectment suit. The reason for
it (prevention of multiplicity of suits) casts doubt
upon its availability to enforce a derivative right
—a right, if existent, derived through a political
body not shown to be incapable of direct suit.
The present suit, in these two aspects, offers a
double novelty in practice,
The Court that is asked to sponsor these in-
novations is entitled to authority or clear reason.
Particularly is this true when confronted by
Johnson v. Long Island R. BR. Co., 162 N. Y. 462,
where this very practice was discountenanced.
II. PLAINTIFF’S ATTACK UPON THE 1824
TREATY IS.AN ASSERTION OF HIS
INCAPACITY TO BRING THIS SUIT.
At paragraph “Thirteenth”? of the complaint
plaintiff asserts, relative to the treaty of cession
in 1824:
‘«__. .. — which treaty was wholly uncon-
stitutional, unlawful, void, null and of no
effect for the reasons that the lands pre-
tended by said treaty to be released to the
State of New York were the property of the
Indians of the St. Regis Tribe of Indians,
the Mohawk Nation, the Six Nations of the
Iroquois Confederacy and of the other
Indians of the St. Regis Tribe of Indians as
commoners and not subject to alienation by
any one of the Indians of the St. Regis
Tribe of Indians without the consent of the
others, and not by all of the Indians of the
St. Regis Tribe of Indians without the con-
sent and approval of the Six Nations of the
5
Iroquois Confederacy and of the United
United States of America. — — — That the
said St. Regis tribe or clan of Indians was
at all the times herein mentioned wholly with-
out power or right to treat with the State of
New York, or with any other Commonwealth,
State or Nation, or person in its own behalf
in respect to the title to the lands occupied
by said clan or tribe, or otherwise.’’
For present purposes we accept as true
and relevant that statement of incapacities of the
St. Regis tribe, and they are presumed to con-
tinue; indeed it is stated that they continue ‘at
all times herein mentioned.’’
Now a judgment has no less an effect upon
title than has a deed, and in recognition of this
fact our law imposes an incapacity to sue corre-
lative to each incapacity to contract. Our courts
would not entertain a suit by a sole plaintiff
who asserts that “at all times herein mentioned”’
he was and is a minor or an incompetent, but
comes to court unattended by general guardian,
guardian ad litem, or committee.
In the present suit, is it not a strange incon-
sistency for the plaintiff to assert continuous
wardship of the United States and continuous
limitation against separate tribal transfer by the
Six Nations’ constitution (‘‘First,’? ‘“Second’’
and ‘Third’? of complaint) and the continuous
proprietary interest of the Mohawk Nation and
the Six Nations Confederaey (‘Thirteenth’),
asserting these as reasons against validity of the
treaty of 1824 (‘“Thirteenth’’), and then comes
into court to adjudicate that invalidity, un-
2
6
accompanied by its guardian or by its commoners
in interest?
It is submitted that these allegations amount
to an assertion upon the face of the complaint
of the plaintiff’s incapacity to sue (even assum-
ing that he properly personates the St. Regis
tribe) and a like assertion of a defect in neces-
sary parties plaintiff.
TL IF SUIT WERE AUTHORIZED, WITH-
OUT DIFFERENT PROVISION, IT
WOULD BE BROUGHT BY THE TRIBAL
COUNCIL.
Article 8 of the Indian Law of New York State,
having particular relation to the St. Regis tribe,
and the general provisions of section 8 of the
same law, do not provide for an action for trial
of title to Indian lands. They do however afford
clear indication as to the political structure of
the tribe as recognized by the State of New York,
and if they are valid afford another reason why
plaintiff is disentitled to sue as representative
of the tribal members,
We suppose counsel for plaintiff will brush
aside these statutory provisions as violative of
the federal constitution. This is a question upon
which many words might be expended. We con-
tent ourselves with quotation from opinion of
the Supreme Court of the United States in
United States ex rel. Kennedy and one v. Tyler,
decided October 12, 1925, relative to validity of
articles 3 to 6 inclusive of the same statute:
“We are asked to enter upon a review of
these matters and of the historical relations
of the Indians to the Nation and to the State
7
of New York from a time long anterior to the
adoption of the federal Constitution. The
conclusion we have reached makes this un-
necessary. It is enough for present pur-
poses to say that the State of New York, as
early as 1849, at the request of the Indians,
assumed governmental control of them and
their property, passed laws creating and de-
fining the jurisdiction of the peacemakers’
courts, administered these laws through its
courts, and that Congress has never under-
taken to interfere with this situation or to
assume control. Whether the state judicial
power extends to controversies in respect of
the succession of Indian lands within the
boundaries of the state, whether the peace-
makers’ court in the exercise of its jurisdic
tion is subject to the authority of the state
supreme court, whether the subject matter
of these controversies and proceedings was
one exclusively within the control of the na-
tional government and beyond the authority
of the state, are all questions which, under
the circumstances recited, it is peculiarly ap-
propriate should in the first instance be left
to-be dealt with by the courts of the. state.
In so far as they involve treaty or constitu-
tional rights, those courts are as competent as
the federal courts to decide them. In the
regular and ordinary course of procedure, the
power of the highest state court in respect. of
such questions should first be exhausted.
When that has been done, the authority of
this court may be invoked to protect a party
against any adverse decision involving a
denial of a federal right properly asserted
by him.’’
8
Relative to the St. Regis Indians the State of
New York can show an even more ancient course
of statutory control and tribal assent. By act of
March 26, 1802, the State authorized the St. Regis
Indians to elect trustees, with power to lease
lands. In 1813 these trustees were specifically
authorized to lease the Mile Square. In 1818 cor-
tain other trustees were appointed, pursuant to
request of the surviving trustee (II Mes. Gov.
938). In 1811 and by subsequent statutes the St.
Regis Indians were provided with a tribal at-
torney. This long course of statutory control, we
believe, is entitled to no less weight than the like
course of dealing between the State and the
Seneca Nation.
An Indian tribe, according to Chief Justice
Marshall, is. a’“‘domestic dependent nation.’’ Its
political institutions, recognized for a century
and a quarter by state legislation, are not now to
be ignored. If the tribe has a right to bring this
suit (in the absence of enabling statute we believe
it has none) then the exercise of that right rests
with the tribal council. If the tribe has no right
to bring this suit then neither has this plantiff
as representative of the tribal members. (John-
son v. Long Island R. R. Co., supra.) On either
view plaintiff’s disqualification to sue appears
from the face of the complaint.
9
IV. IN ANY CASE PLAINTIFF CANNOT BE
HEARD IN THIS COURT TO SPEAK BY
ANY REPRESENTATIVE OTHER THAN
THE UNITED STATES ATTORNEY.
By U. 8. Compiled Statutes, section 4087, con-
tracts with any tribe of Indians, or with in-
dividual Indians not citizens of the United
States, are declared to be void, unless in writing,
executed before a judge of a court of record, and
approved by the Secretary of the Interior and
the Commissioner of Indian Affairs. This pro-
vision would seem to include retainer agreements.
Expressive of the same public policy is the brief
but definite provision of section 4102:
“In all States and Territories where there
are reservations or allotted Indians the
United States District Attorney shall repre-
sent them in all suits at law and in equity.”
V. THE COMPLAINT SHOULD BE
DISMISSED.
Respectfully submitted,
ALBERT OTTINGER,
Attorney-General, for the State of New York,
The Capitol, Albany, N. Y.
Brief by
Heyry 8. Mayuay,
Deputy Attorney-General.
3
UNIVERSITY4r ALB ANY University Libraries
ME. Grenander Department of
24x85 Stace University of New York Special Collections & Archives
Heavy S. Miewdey Papers, (s49—- [lo
Gevies |
BOx |
Desevit tion . FOLDER 1/3
Dade, c. 1425
baw VST
US. Dielreet Court’
James Deeve v. State al: Nao Yack, St. Lawrence River
Powev Conspan
1400 Washington Avenue, Albany, NY 12222
Pit: 518-437-3935 Fax: 518-437-3930
httpi/ilibrary.albany.edu/speccoll/
Barba galle b-Zoly
United States District Court
Northern District of New York.
Jamus Duern, as ber of the
St. Regis Tribe of Indians, on
behalf of himself and of all
of said St.
f Indians,
Plaintiff’,
. \ Law 987.
against
Tur Stary or Yors, Sq.
Lawrewon Riven Powzr Com-
PANY, a corporation, and
others,
Defendants,
PLAINTIFF’S BRIEF ON DEFENDANTS’
MOTION TO DISMISS COMPLAINT.
Statement.
Defendants moved for judgment dismissing the
complaint herein upon the following grounds:
1, That the court has not jurisdiction of the
subject of the action.
2, That the court has not jurisdiction as a
Federal Court of the action by reason of diversity
of citizenship or otherwise.
2
8. That the plaintiff has not legal capacity to
sue, That the plaintiff brings this action as a
member of the St. Regis Tribe of Indians on be-
half of himself and of all other- members of said
St. Regis Tribe of Indians. That the plaintiff has
not legal capacity to sue in a representative ca-
pacity, or to bring this action either individually
or as a member of the St. Regis Tribe of Indians
on his own behalf or on behalf of the other mem-
bers of said Tribe.
4, That the Complaint does not state facts suf-
ficient to constitute a cause of action.
In argument it was contended by counsel for
defendants that this case presented no Federal
question; that the plaintiff had no capacity to sue
in his own name; and that the averments in the
complaint did not support an action of ejectment.
The motion of defendants to dismiss the com-
plaint was argued by counsel in open court No-
vember 21, 1925.
With leave of court this brief, in which each of
the points mentioned will be taken up, is filed.
POINT I.
Plaintiff relies on the title confirmed in him
by the treaties of 1784, 1796, and 7 Stat. 55.
This is an action of ejectment. In ejectment
the right of possession alone is in issue and not
the ultimate title. Ejectment is a proper remedy
to recover possession of property which has been
wrongfully taken.
Child v. Chappell, 9. N. Y, 246;
Jackson v. Buel, 9 Johns (N. Y.) 298;
3
Jackson v. May, 16 Johns (N. Y.) 184;
Rowan v. Kelsey, 18 Barb. (N. Y.) 484;
Champlain, etc. R. Co. v. Valentine, 19
Barb. (N. Y.) 485;
, Aikin v. Benedict, 39 Barb. (N. Y.) 400.
Nevertheless, in seeking to assert his right of
possession the plaintiff in an action of ejectment
must establish the title under which he derives
that right. That burden the plaintiff accepts and
will establish his title without any reliance what-
soever upon any title under which defendants may
be presuming to exercise a conflicting claim to
possession.
Tt is averred in the Complaint (fol. 11) that the
St. Regis Tribe is entitled to all the rights apper-
taining to it as a constituent tribe or clan of the
Mohawk Nation and of the Six Nations of the
Troquois Confederacy. Plaintiff then goes on to
show that as a member of the St. Regis Tribe,
(a constituent clan of the Mohawk Nation, or one
of the Six Nations) he is possessed of certain
inalienable rights. Thus, plaintiff has based his
right of possession on the title of bis tribal com-
munity. .
What is that title?
The court will take judicial notice of the fact
that the lands of the Six Nations including those
of the St. Regis Tribe, were never a part of the
territory of any British Colony. See Colonial
History of New York, Vol. 6, p. 560, quoting
Treaty of Fort Stanwix of November 1768 defin-
ing boundary lines between the Colony of New
York and the domain of the Six Nations.
In Town of Southampton v. Mecow Bay Oyster
Co., 116 N. Y. 1, 7, it. was said:
“Nor did the Indians have any title to the
land which they could grant, and which would
4
be recognized in the courts of this country.
The English possession in this country rested
upon the right of discovery, and the lands
were held by the King as the representative
of the nation. This subject has been learned-
ly discussed by Chief Justice Marshall in
Johnson v. McIntosh (8 Wheat. 548), and by
Chief Justice Taney in Martin v. Waddell
(16 Peters 363), and in these cases the Su-
preme Court of the United States said: ‘If
discovery be made and possession be taken
under the authority of an existing govern-
ment, which is acknowledged by the emig-
rants, it is supposed to be well settled that
the discovery is made for the benefit of the
whole nation, and the vacant soil is to be dis-
posed of by that organ of government which
has the constitutional power to dispose of the
national domain.
‘The Indian tribes in the new world were
regarded as mere temporary occupants of the
soil, and. the absolute rights of property and
dominion were held to belong to the nation by
which any particular portion of the country
was first discovered. Whatever forbearance
may have been sometimes practiced toward |
the unfortunate aborigines, either from hu-
manity or policy, yet the territory they occu-
pied was disposed of by the governments of
Europe at their pleasure, as if it had been
found without inhabitants.’ ’’
See in accord John Clark Estate v. The City of
New York, 165 A. D. (N. Y.) 878, 877.
The doctrine pronounced in the New York deci-
sion quoted is in entire accord with the Federal
decisions and the rule derived by the text writers
from the practice of nations. The contrary doc
trine pronounced in Seneca Nation v. Appleby,
127 A, D. (N. ¥.)770, 779, that the title to the
fee in the lands of the Six Nations passed from
the British Crown to the State of New York at:
the time the Colony of New York became a state,
finds no sanction save in a number of ill-con-
5
sidered New York decisions, and, as shown, has
been denied even by the courts of that state. Such
a doctrine utterly ignores not only the established
rule of International Law and the express pro-
visions of the Articles of Confederation which
gave to the United States in 1778 the exclusive
jurisdiction over the affairs of the Indian tribes
not within a state, but the decisions of the Su-
preme Court. of the United States as well. More-
over, it ignores the Federal Proclamation of Sep-
tember 22, 1783, which enjoined all persons ‘‘from
making settlements in lands inhabited or claimed
by Indians without the limit or jurisdiction of
any particular state, and from purchasing or re-
ceiving any gift or cession of such lands or claims
without the express authority and direction of the
United States in Congress assembled.’’
Am St. Papers, Indian Affairs, Vol. I.
Since the Articles of Confederation came into
being in 1778, it is obvious that in 1783 the State
of New York was without legal capacity to receive
a grant from Great Britain.
How then can it be contended with reason that
the State of New York ever owned that which it
did not own prior to 1783 and which at that time
was ceded direct to the United States which, only,
under the organic law of the Nation, was capable
of receiving it?
The lands of the Six Nations and of the St.
Regis Tribe, now asserted to have been acquired
by the State of New York in 1783, at no time
having been a part or parcel of the Colony of
New York, and it having been forbidden by the
Articles of Confederation and by Congressional
Proclamation that any such acquisition should be
made, there was no way in which the State of New
York legally could acquire the fee therein, even
6
had the Indians admitted its sovereignity and
attorned thereto.
In arguing in support of the doctrine of Seneca
Nation v. Appleby, supra, in direct conflict with
the decisions of the Supreme Court of the United
States, counsel for defendants suggested that the
seeming conflict of that doctrine was due to a lack
of understanding of it on the part of counsel for
plaintiffs. With due deference we submit that
there can be no misunderstanding by anyone con-
versant with the history of the New York deci-
sions which support that doctrine. If counsel for
plaintiff misunderstands the doctrine the misun-
derstanding is shared with the Attorney General
of the State of New York itself, whose opinion ad-
verse to the decision in Seneca Nation v. Appleby,
supra, and the decisions in accord therewith, is
reviewed at length in United States v. Hamilton,
233 Fed. 685 (W. '‘D. N. Y, 1915).
Since the decisions of the United States Courts
are in accord as to the ownership by the United
States of the fee of Indian lands, it is submitted
that only those State decisions not in conflict with
United States decisions, can be given any validity.
In Benson v. U. §. (N. D. N. Y.) 44 Fed. 178,
180, Judge Wauacn said:
“The Government of the United States has
always regarded the Indian tribes as distinct
communities, in a state of semi-independence
and pupilage, between which and its certain
international relations were to be main-
tained; and both the legislative and judicial
departments of the national government have
always emphatically asserted that the Indian
tribes possess such a national character as
to be within the treaty-making power of the
Constitution, and outside the sphere of state
jurisdiction over their persons or their lands,
so far as the national authority has inter-
vened.’’ (Italics added.)
7
See in accord Lown of Southampton v. Mecox
Bay Oyster Co., supra; Mulhins v. Snow, 232 N. ¥.
50; U. S. v. Hamilton, supra; People v. Daly, 212
N. Y. 183.
That the national authority has intervened in
the case of the Six Nations is a historical fact.
In the answer of the United States to the Brit-
ish Memorial, in the celebrated Cayuga case in-
volving the title of the Six Nations and the St.
Regis Tribe, now pending before the American-
British Claims Arbitration, in the most solemn
possible international declaration, at page 11, the
Department of State said:
“The right of domain, which rested in a
nation the ultimate fee to the land, carried
with it the exclusive right of acquiring from
the various Indian tribes inhabiting it their
rights to the soil, which were considered as
limited to a right of use or occupancy of the
lands respectively used by such tribes for
their hunting grounds.’’
In the appendix to that answer, referring to
the political system of the United States, the
American Commissioner, acting under the Secre-
tary of State, said:
“Under that system the Indians residing
in the United States are so far independent
that they live under their own customs and
not under the laws of the United States; that
their rights upon the lands where they in-
habit or hunt are secured to them by amicable
treaties between the United States and them-
selves; and that whenever those boundaries
are varied, it is also by amicable and volun-
tary treaties, by which they receive from the
United States ample compensation for every
right they have to the lands ceded by them.”
In the face of such international declarations
it is inconceivable that the United States would
8
leave the St. Regis Tribe and the plaintiff sub-
ject to the municipal law of a state which, as such,
by interpleading herein now seeks to override the
guarantee contained in the Treaty of Peace of
1788, notwithstanding the fact that it had dele-
gated the authority to the United States to give
that guarantee.
It is then, upon the authority of the New York
courts as well as the Federal courts that the own-
ership of the fee in the lands of the Six Nations
and the St. Regis Tribe, including the land af-
fected by this action, and the sovereignty of the
United States over the plaintiff, is established in
the United States.
The tribal right of occupancy was a property
right.
Mitchell v. U. 8., 9 Pet. 711.
This property right of the St. Regis Tribe in
its immemorial domain was aboriginal, antedated
the sovereignty of Great Britain and the United
States, and was not derived from either, but was
recognized and protected by the laws of both.
Holden v. Joy, 17 Wall. 211;
Worcester v. State of Georgia, 6 Pet. 515.
The treaty of peace between Great Britain and
the United States in 1783 in which the territory
of the Six Nations, along with that of the Colony
of New York, was ceded direct to the United
States and not to the State of New York, did not
divest the St. Regis Tribe of any property right,
nor alter the character of its interest, but on the
contrary expressly guaranteed its property rights
as they existed under the law of Great Britain.
Townsend v. Greeley, 5 Wall. 326, 338;
DeCassus v. U. 8.,.9 Pet. 117;
U. 8. v. Perchman, 7 Pet. 50, 86;
v
Botetter v. Dominguez, 130 U. 8. 238;
Phillips v. Association, 124 U: 8. 605;
Powder Works v. Davis, 151 U.S. 389;
Crystal Springs Land & Water Co. v.
City of Los Angeles, 76 Fed. 153.
By many who have not studied thoroughly the
political relation existing between the Indians and
the United States, ignoring as they do the mean-
ing of the decisions cited, it is mistakenly assumed
that the powers of the United States over the
Indians are not merely those of a political guard-
ian, but of a sovereign ungoverned by any restric-
tions save its own unhampered will. That as-
sumption has led to many grievous errors by the
courts. A moment’s consideration will suggest
that, if in the treaties with Great Britain, Spain
and France by which the United States acquired
political sovereignty over its Indian wards it gave
in each and every case express guarantees of their
property rights, of which fact the court will take
judicial notice, it assumed the most solemn pos-
sible obligations to them and its sister nations
which it may not ignore. Therefore, we as-
sert with the utmost confidence that in every
controversy arising over the property rights that
were guaranteed by those treaties the humblest
courts, not alone the Federal courts, must take
cognizance of the law of nations,
The point is well discussed in The Question of
Aborigines in the Law of Nations, Snow, (Putnam
1921), which was a special report made under the
authority of the Hon. Charles Evans Hughes,
Secretary of State, to the Department of State,
in which report at page 58 it is said;
“The Supreme Court has also held that
the power which the United States has, by
the law of nations and its Constitution, over
10
all colonies and dependencies is ‘plenary’ for
the accomplishment of the object sought to
be obtained. (Binns v. United States, 194
U.S. 486.) These objects can only be, and
are, the extension of democracy, republican-
ism, and equality of opportunity. ‘Plenary’
power is the power which an agent has who
is delegated to accomplish a certain object,
and whose mandate is limited only by the
needs of the situation, An agent with plen-
ary power—an. agent plenipotentiary—rep-
resents the principal with full power to do
all which the principal might reasonably do
in the accomplishment of the object intended.
Plenary power is not absolute power, but
power limited to the needs of the situation.
It implies that the supreme organs of -the
United States for exercising the power of
the United States—its Congress, its Presi-
dent, its Supreme Court—acting for the
United States, in fulfilling its judiciary rela-
tionship under the law of nations respecting
its Loni and dependenci have full
powers to do all which the United States
might reasonably and legally do under the
law of nations, consistently with the funda-
mental principles of its Constitution and the
fundamental principles of human society rec-
ognized by all civilized States.
“Ag the Constitution contains a Bill of
Rights imposing certain prohibitions or con-
ditions upon the action of all the organs of
the Central Government respecting individu-
als under the sovereignty of the United
States, all of the provisions of this Bill of
Rights, which are of universal application,
are applicable in all the colonies and depend-
encies of the United States from the moment
of their acquisition.’’ (Italics added.)
In the exhaustive report mentioned the history
of the political relations existing between the In-
dian tribes and the United States is fully dis-
cussed and in it Johnson v. McIntosh, 8 Wheat.
1
543; Cherokee Nation v. Geargia, 5 Pet. 1; Wor-
cester v. Georgia, 6 Pet. 575; U. S. v. Kagama,
118 U. 8. 875; Jones v. Meehan, 175 U.S. 1; U.S.
v. Cook, 19 Wall. 591; Stephens v. Cherokee Na-
tion, 74 U.S. 445, Spaulding v. Chandler, 160 U. 8.
394; and innumerable other authorities are cited
in support of the undoubted rule of law that the
United States—and not any individual state—has
owned from the first the fee to the lands that were
occupied by Indians when the same were acquired
by it; that Congress—and not any state legisla-
ture—has ever possessed plenary authority over
the Indians; that they have ever ‘been the wards
of the nation—not the wards of states—that their
right of occupancy can only be extinguished by
the United States upon their voluntary consent;
that while their right of occupancy is as sacred
as the title in the United States to ‘the fee, it
was never competent for them to convey it with-
out the consent of the United States; that even
grantees from the United States take subject to
any unextinguished Indian right; and that even
the patents of the United States and the acts of
United States executive officers are incompetent
to extinguish Indian rights without their consent.
That the treaties of 1784 and 1796, and 7 Stat.
55, were competent to confirm in the plaintiff the
rights claimed by him, there can be no reasonable
doubt in view of the authorities quoted.
POINT IL.
A Federal question involved.
Article TTI, Section 2, clauses 1 and 2, of the
Constitution of the United States provides that
the
12
“Judicial power shall extend to all cases,
in Law and Equity, arising under this Con-
stitution, the Laws of the United States, and
treaties made or which shall be made under
their authority; to all cases affecting ambas-
sadors, other public ministers and consuls; to
all cases of admiralty and maritime jurisdic-
tion; to controversies to which the United
States shall be a party; to controversies be-
tween two or more states; between a state and
citizens of another state; between citizens of
different states; between citizens of the same
state claiming lands under grants of differ-
ent states, and between a state, or the citizens
thereof, and foreign states, citizens or sub-
jects.””
Section 24 of the Judicial Code provides (1st
subdivision) that the district courts shall have
original jurisdiction, where the matter in contro-
versy exceeds, exclusive of interest and costs, the
sum or value of three thousand dollars, and arises
under the Constitution, laws of the United States,
or treaties made, or which shall be made under
their authority.
The foregoing provisions have been judicially
interpreted in such a clear manner as to leave no
doubt as to their scope.
“Diversity of citizenship confers jurisdic-
tion, irrespective of the cause of action. But
if the cause of action arises under the Con-
stitution, or laws, or treaties, of the United
States, then the jurisdiction of the Circuit
Court may be maintained irrespective of citi-
zenship.’?
Pope v. Louisville, New Albany, eto.
Railway, 173 U. &. 578, 576.
In passing upon the question whether a federal
question arose out of an Indian treaty, in U. 8. v.
Old Settlers, 148 U. S. 426, 469, Chief Justice
Fuller, speaking for the court, said:
13
‘‘As a case arises under the Constitution
or laws of the United States, whenever its de-
cision depends upon the correct construction
of either, Cohens v. Virginia, 6 Wheat. 264,
879; Osborn v. Bank of the United States, 9
Wheat. 737, 824, so a case arising from or
growing out of a treaty is one involving rights
given or protected by a treaty. Owings v.
Norwood’s Lessee, 5 Cranch., 344, 348.’’
In accordance with the principle laid down in
the authorities mentioned, the Cireuit Court, N. D.
Towa, took jurisdiction in the case of Ma-ka-ta-
wah-qua-twa v. Rebok, 111 Fed. 12, in which there
was involved the rights and liabilities of the plain-
tiff under a Federal statute in an action for dam-
ages against the defendant.
So too it was held to be a Federal question
whether or not by virtue of the Ordinance of 1787,
and the treaties between the United States and
the Miami Tribe, certain lands in possession and
ownership of a Miami chief and his descendants
were exempt from taxation. Wau-Pe-Man-Qua
y. Aldrich, 28 Fed. 489.
In the instant case plaintiff sets out as Exhibit
“A? to his complaint the treaty of Fort Stanwix
of 1784 between the United States and the Six
Nations, and in folio 22 of the complaint express-
ly declares that his right as a member of the St.
Regis Tribe in the lands which are the subject mat-
ter of this action, depend upon the validity of that
treaty. He also sets out as Exhibit ‘‘B’’ to his
complaint the treaty of 1796 (7 Stat. 55) between
the United States and the Seven Nations of Can-
ada. In folio 22 of the complaint it is expressly
declared that his rights depend upon the con-
struction and validity of that treaty. In folios 10
and 11 it is declared that by virtue of the treaty of
1784 he is a ward of the United States; in folio 15
that as such he is entitled by virtue of the treaties
14
of 1784 and 1796, and 7.Stat. 55, to the possession
and use of the lands which are the subject of this
action; in folio 18 that his right to the use and
possession of the said lands was guaranteed by
the treaty of 1784; in folio 20 that the said lands
were reserved to his use by the treaty of 1796 and
7 Stat. 55; in folio 29 that by virtue of the treaty
of 1784 the said lands are the property of the Six
Nations and their constituent tribes and clans; in
folio 30 that they are not subject to alienation by
the Six Nations or their constituent tribes and
clans; in folio 54 that the members of the St.
Regis Tribe are seized as commoners of the exclu-
sive right and title to the possession, use and en-
joyment of the said lands; in folios 32-53 that the
State of New York did certain acts inconsistent
with rights acquired by plaintiff under the said
treaties of 1784 and 1796 and 7 Stat. 55; and in
folio 53 that defendants are in possession of the
lands of which by virtue of the said treaties and
statute the St. Regis Indians have the right of
exclusive possession, and in derogation of the
plaintiff’s rights.
Moreover, out of the averments contained in the
complaint there necessarily arises a constitutional
question as to the validity of the guarantee by the
United States in the treaty of peace of 1783 of
plaintiff’s property rights. How can this court
deny the claim set up by plaintiff in the complaint,
even if all reference to the State of New York be
omitted from the complaint, without saying that
the United States assumed no obligation under
the Constitution by virtue of its several treaties
with Great Britain respecting the property rights
claimed by plaintiff?
It is obvious, therefore, that the case is essen-
tially one ‘“‘arising from or growing out of a
treaty involving rights given or protected by a
15
treaty’’, and that, therefore, upon the authority of
U. 8. v. Old Settlers, and Owings v: Norwood’s
Lessee, supra, it presents a federal’ question.
Worcester v. State of Georgia, 6 Pet, 515, 541,
is conclusive on the point. In that case appellant
claimed certain rights and immunities by virtue
of treaties between the United: States and the
Cherokee Nation. In passing on the question
whether the Federal Courts had jurisdiction, said
Marshall, C. J., delivering the opinion of the
Court:
“Tet the averments of this plea be com-
pared with the twenty-fifth section of the
judicial act.
“That section enumerates the cases in
which the final judgment or decree of the
State Court may be revised in the Supreme
Court of the United States. These are,
‘where is drawn in question the validity of a
treaty, or statute of, or an authority exer-
cised under, the United States, and the deci-
sion is against their validity; or where is
drawn in question the validity of a statute
of, or an authority exercised under any state,
on the ground of their being repugnant to the
Constitution, treaties or laws of the United
States, and the decision is in favor of their
validity; or where there is drawn in question.
the construction of any clause of the constitu-
tion, or of a treaty, or statute of, or commis-
sion held under the United States, and the de-
cision is against the title, right, privilege or
yption, speci set up or imed Wb
either party under such clause of the said con-
stitution, treaty, statute or commission.’
“The indictment and plea in this case draw
in question, we think, the validity of the
treaties made by the United States with the
Cherokee Indians; if not so, their construc-
tion is certainly drawn in question;* and the
decision has been, if not against their validity,
‘against the right, privilege or exemption,
* Ttalies added,
16
specially set up and claimed under them.’
They also draw in question the validity of a
statute of the State of Georgia, ‘on the ground
of its being repugnant to the Constitution,
treaties and laws of the United States, and
the decision is in favour of its validity.
“Tt is, then, we think, too clear for con
troversy, that the act of Congress, by which
this court is constituted, has given it the
power, and of course, imposed on it the duty,
of exercising jurisdiction in this case. * * *”
Shulthis v. McDougal, 225 U. 8. 561, relied on
by the defendant is clearly distinguishable and
not in point. That was a suit in equity, not, as
here, an action at law. There the court said that
the title of the plaintiff arose from the United
States Statutes, ‘but the bill makes no mention
of those statutes or of any controversy respecting
their validity, construction or effect. Neither does
it by necessary implication point to such con-
troversy.’’ In the present case the complaint does
just that—alleges clearly that unless the action
of the plaintiffs’ antecedents in derogation of the
tribal rights of the St. Regis Indians is invalid,
the plaintiffs’ right fails; and that the determina-
tion of this question depends on construction of
the treaty set forth in the complaint. This is not
anticipation of defence. It is a necessary element
of the plaintiffs’ claim, and sufficiently alleges a
controversy regarding the construction of the
constitution, treaties and laws of the United
States. .
On the argument, counsel for defendant entered
into a discussion of the question of diversity of
citizenship. We respectfully submit that the
jurisdiction claimed here is in nowise based on
diversity and is not so alleged.
17
POINT IIL.
Plaintiff may bring this action in his own
name,
It is submitted that since the general enfran-
chisement act of June 2, 1924, every reason upon
which any legal disability on the part of the Indi-
ans to sue individually or collectively may have
been presumed to exist has necessarily been done
away with, if citizenship has any meaning at all.
If National citizenship does not confer the right
to sue in the courts of the United States on an
equality with all other members of the body poli-
tic, at least in the Federal courts, what does it
imply? Is it to be seriously argued before this
court by a former Secretary of State that a citi-
zen of the United States, because he is an Indian,
may not as a litigant enjoy the rights which an
alien resident possesses? :
What becomes then of the ancient decisions of
the New York Courts upon which defendants
rely, based entirely as they were upon the premise
that Indians were not citizens?
But even under the law as it existed prior to
1924, there was no doubt as to the right of an
Indian to sue.
Felia v. Patrick (CO. C.), 36 Fed. 457.
He had the same right as any one else to pro-
tect his rights by resort to the courts, both Fed-
eral and State.
The Kansas Indians, 5 Wall. 737.
In Lane v. Santa Rosa Pueblo, 249 U. 8. 113,
Mr. Justice Van Deventer, speaking for the court
in 1919, said:
18
“The existing wardship is not an obstacle,
as is shown by repeated decisions of this
court, of which Lone Wolf v. Hitchcock, 187
U.S., is an illustration.’’
It must be concluded, therefore, that there was
no peculiarity in the law with respect to Indian
litigants by reason of the mere fact that they
were Indians, no more than in respect to defend-
ants because they were, perchance, of Caucasian
stock, The standing of an Indian in Court was at
all times to be determined not by the color of his
skin but by the color of the right of action which
acerued to him.
It is not denied that the land which is the sub-
ject of this action is owned by the St. Regis ‘Tribe
incommon. Of the fact that it is held in common
the court: will take judicial notice.
Fulton v. Hayes, 163 U. 8. 376.
. Land is said to be held.in common when there
are more owners than one.
Chambers, et al. v. Harrington, 111 U. 8.
350.
What were the legal incidents of: Indian. com-
munal ownership?
Under the Indian communal system, Indian
lands and funds belonged to the tribe as a com-
munity.
Sizemore v. Brady; 235 U. 8. 441;
Choate v. Trapp, 224 U. 8. 665;
Gritts v. Fisher, 224 U. 8. 640:
They did not belong to the members severally
or as tenants in common.
19
Stephens v. Cherokee Nation,.174 U. 8.
445;
Dukes v. Goodall, 5 Ind. 'T. 145, 82 8, W.
The title to the communal lands was vested in
the community as such.
Shulthis v. McDougal, 107 Fed. 529;
Journeycake v. Cherokee Nation, 28 Ct.
Cls. 281;
Myers v. Mathis, 2 Ind. T. 3, 46 S. W.
5
Shongo v. Miller, 169 N. Y. 586,
The members of the tribe had a right of occu-
pancy in the land held by the community.
Rowe v. Henderson, 76 8. W. 250;
Rush v, Thompson, 58 8. W. 333;
Reservation Gas Co. v. Snider,.150 N. Y.
Supp. 216;
McGlassen v. State, 130 Pae. 1174.
The individual Indian had no title to the tribal
property.
Comway v. Ballinger, 216 U. S. 84;
Seneca Nation v. Hammond, 3 Thomps.
& C. (N. ¥.) 347.
Nor did he have a vendible interest in any par-
ticular tract of the tribal lands,
Franklin v. Lynch, 283 U. 8. 269;
Mullin v. Gardner, 156 Pae. 1160.
The right of each individual to participate in
the enjoyment of the community property de-
pended upon tribal membership,
20
Sully v. U. 8., 195 Fed, 113;
Oakes v. U. S., 172 Fed. 305.
And when his membership in the tribe termi-
nated by death or otherwise his right was at an
end.
Sizemore v. Brady;
Gritts v. Fisher, supra.
His right was not alienable nor descendible.
Mullen v. Pickens, 250 U. 8. 590;
Sizemore v. Brady, supra;
Gritts v. Fisher, supra;
Haynes v. Barringer, 168 Fed. 221;
Simpkins v. Were, 45 Okla. 327.
Thus, it is seen that the characteristics of the
individual right of a communal Indian are iden-
tical with those defined in the members of the
Gahokio Community in Hays v. Hewitt, et al., 97
TIL. 498, and in the Order of St. Benedict v. Albert
Steinhauser, et al., 284 U. 8. 640. See also Notes
on Communistic Property,
8L. B.A. (U. 8.) 459; Civil Law and The Church,
Lincoln, with full account of the Amana Society,
the Harmony Society, Oneida Community, Sepa-
yatists, Shakers, and other communities.
{f the tribal Indian was a commoner he natural-
ly had the legal rights of a commoner.
Individual commoners, like tenants in common,
may sue separately for a disturbance of their
right of common.
Quwillim v. Donnellan, 115 U. 8. 45;
Kenyon v. Nichols, 1B. I. 106;
Pomeroy v. Nulls, 3 Vt. 410;
Allen v. Woodward, 22 N. H. 544;
Hart v. Burnett, 15 Cal. 530;
21
Vernon Irrig. Co. v. Los Angeles, 196
Cal. 237;
Santillan v. Moses, 1 Cal. 92;
Patterson v. Hitchcock, 3 Colo. 533;
Becker v. Puch, 3 Colo. 589;
Darger v. Le Sieur, 8 Utah, 160;
Proprietor of Common and Undivided
Land and Meadows of Southold v. Hor-
ton, 6 Hill. 561.
If the Indians were under no legal disability as
litigants, as declared in Felia vy. Patrick, The Kan-
sas Indians, and Lane vy. Santa Rosa Pueblo,
supra, and the courts were open to them as to all
other persons with capacity to sue, it was only
logical that they should be held to have the same
remedies as other persons.
Thus, in Kelly v. Johnson (Ind. T. 1897), 39
S. W. 352, it was held that a member. of the Choe-
taw Tribe, which held its land in common, had
the right to defend his individual rights as against
third persons.
See also The Winton Case, 255 U. S. 378.
On this point the law of the United States and
the State of New York were in complete accord.
Lone Wolf vy. Hitchcock, 187 U. 8. 558, was a
case in which Lone Wolf as-a member of the.
Kiowa tribe brought an action of ejectment on be-
half of himself and the confederated Kiowa,
Comanche and Apache tribes. His capacity to sue
individually on behalf of himself and the said
tribes was sustained by the Supreme Court.
In Hatch v. Tuckman, 64 Misc. (N. Y.) 508, 520,
affd. 155 A. D. 765, it was said:
“To hold that an Indian is to be denied full
and free access to our courts for the protec-
tion of his rights and the redress of his
wrongs would be a monstrous denial of jus-
22:
tice, particularly where the state has pro-
vided no special tribunal of its own for the
settlement of such matters.’’
In argument (stenographic record, p. 26), coun-
sel for defendants said:
“Now, it has been held I think quite con-
clusively that an individual Indian can not
come into Court in that way; has no right
whatever to appear in this Court on behalf
of himself and others of the St. Regis Tribe.
That has been a matter of decision from a
very early date in this State. It came up in
Strong v. Waterman, in 11 Paige.”
After arguing on the strength of Strong v.
Waterman-that the right of possession, as a tribal
right, apart from allotments under. statutory pro-
visions, or a particular interest in severalty to
the Indian, cannot be enforced either by the Tribe
or any individual member of the Tribe, counsel
for defendants (steno. record, p: 28) went on as
follows: ,
“The Chancellor said, in Strong against
Waterman:
‘The rights of the Indians in this state to
the use, possession, and occupancy of the
lands of: their respective reservations, which
have not been by them voluntarily ceded to
the people of the state, or granted to individ-
uals with the assent of the state, do not, at
this time, admit of doubt. The ultimate fee
of the land is undoubtedly in the state, or its
grantees; but the right of the Indians to the
beneficial use and’ occupancy thereof, until
they think proper voluntarily to relinquish
and abandon that right, has been too long
recognized in this state to be now called in
question. No provision, however, has been
made by law for the bringing an ejectment to
recover the possession of Indian lands in the
|
|
|
23
Cattaraugus reservation. For the right to
the possession is in several thousand individ-
uals, in their collective capacity; which indi-
viduals, as a body, have no corporate name by
which they can institute an ejectment suit.’ ””
Here counsel stopped. But, we are not willing
to accept this as a correct statement of what was
decided in that case. On the contrary, as will be
seen from a reading of the remainder of the opin-
ion, the Chancellor’s holding was directly and
positively to the effect that this plaintiff is a prop-
er party to this action. Said the Chancellor, in
Strong v. Waterman, 11 Paige Ch, 607, 612:
“The Indians cannot therefore institute a
suit in the name of the tribe; but they must
sue in the same manner as other -citizens
would be required or authorized to sue, for
the protection of similar rights. And as the
individuals composing the Seneca nation of
Indians, and residing on, and entitled to,
their several reservations, are too numerous
to join in this suit by name, the bill is prop-
erly filed by these complainants in behalf of
themselves and the residue of the Nation re-
siding upon their reservations. * * * The par-
ties are therefore properly before the court,
and the complainants are entitled to retain
this preliminary injunction.”
Strong v. Waterman, supra, was cited with ap-
proval in Seneca Nation v. Christie, 162 U. 8. 283,
288; U. S. v. Boylan, 256 Fed. 468, affirmed 265
Fed. 165, 174, and Montauk Tribe of Indians v.
The Long Island R. Co., 28 App. Div. (N. Y.) 470.
Counsel for defendants also cited Montauk
Tribe of Indians v. Long Island R. Co., supra, in
support of his proposition that plaintiff could not
bring this action, A study of that case shows that
the complaint was dismissed for the reagon that
the Montauk tribe had no corporate existence and
Pp
24.
not. because the suit was brought by an individual
Indian. Moreover, the decision in the case, like
that in Strong.v. Waterman, contains language
directly against the contention put forward by
counsel for defendants. Said the Court, at page
472:
“Still the Indians are not without redress.
They may apply to the legislature for author-
ity to maintain an action like the present, or
it may be that, under the authority of Strong
v. Waterman (supra), an action might be in-
stituted by one of their number on his own
behalf and on behalf of the other Indians of
his tribe.”’
In view of such language it is astonishing that
a portion of the decision in Strong v. Waterman
should have been cited as authority in support of
the proposition that plaintiff under the law of
New York could not maintain this action.
POINT IV.
The rule in Taylor v. Anderson is no bar to
this action.
In argument it was contended that the court
had no jurisdiction of this case because plaintiff
relies for his rights upon the invalidity of certain
acts set out in folios 24 and 32 of the complaint.
In support of that view Taylor v. Anderson, 234
U.S. 74, was cited as conclusive.
If the case cited, and all the authorities referred
to therein, be examined, it will be seen at once
that the context of the decision in that case must
be taken to sustain, not set aside, the complaint
herein.
25
In the Taylor case the petition alleged that
plaintiffs were the owners in fee and entitled to
possession of the land that was the subject of
the action; that the defendants had forcibly taken
possession and were wrongfully keeping the plain-
tiffs out of possession, and that the latter were
damaged in a sum named.
Tn the instant case, the allegations are identical.
The complaint sets out that plaintiff is the owner
of an exclusive right of occupancy and possession;
that defendants have taken possession and are
wrongfully keeping the plaintiff out of possession,
and that the plaintiff is damaged thereby in a
sum named.
“Nothing more’? declared the court in its opin-
ion in the Z'aylor case, ‘‘wag required to state a
good cause of action. Snyder’s Comp. Laws of
Okla., Sees. 5627, 6122; Joy v. St. Louis, 201 U. 8.
332, 340,”
Therefore upon the authority of Taylor v. An-
derson, supra, which has been cited against plain-
tiff, his complaint is within the jurisdiction of this
court.
The ground upon which the Taylor case was
dismissed by the court does not exist in the instant
case. In the Taylor case the petition went on to
state, as pointed out by the court, that plaintiff
relied for his title on the invalidity of a grant to
the defendant. Said the court:
‘“However essential or appropriate these
allegations might have been in a bill in equity
to cancel or annul the deed, they were neither
essential nor appropriate in a petition in
ejectment. Apparently, their purpose was
to anticipate and avoid a defense which it
was supposed the defendant would interpose,
but, of course, it rested with the defendants
to select their ground of defense, and it well
might be that this one would not be inter-
26
posed. In the orderly course, the plaintiffs
were required to state their own case in the
first instance and then to deal with the de-
fendants after it should be disclosed in the
answer, * * **
“Tt ig now contended that these allegations
showed that the case was one arising under
the laws of the United States, namely, the
acts restricting the alienation of Choctaw and
Chicasaw allotments, and therefore brought
it within the Circuit Court’s jurisdiction.
But the contention overlooks repeated deci-
sions of this court by which it has become
firmly settled that whether a case is one aris-
ing under ‘the constitution or a law or treaty
of the United States, in the sense of the juris-
dictional statute (Now Sec. 24, Judicial Code)
must be determined from what necessarily
appears in the plaintiff’s statement of his
own claim in the bill or declaration, unaided
by anything alleged in anticipation of avoid-
ance of defenses which it is thought the de-
fendant may interpose. * * * ‘Tested by
this standard, as it must be, the case disclosed
by the petition was not one arising under a
law of the United States.’*
The rule thus stated by the court is, of course,
sound and well established. It is not questioned,
but it cannot be taken to apply as a bar to this
action.
In the instant complaint, the plaintiff ‘‘in the
orderly course’? has set up his title under the
United States treaties of 1784, 1796 and 7 Stat.
55, declaring what were his rights thereunder.
For those rights he claims to be in no wise in-
debted to any grants or deeds held by the defend-
ants. It is upon prior and entirely different
grants from those alleged to have been made to
defendants by the State of New York that plain-
tiff relies; upon grants that antedated the latter
by many years.
27 7
In argument counsel for defendants (steno.
record, p. 5) sought to bring the instant case
within the rule laid down in Taylor v. Anderson
by referring the Court to folios 41, 42 et seq. and
wholly ignoring the preceding folios. His whole
argument then based itself upon the allegations in
the folios mentioned by him. It is not, however,
within the facts to say that plaintiff claims the
right of possession by virtue of the invalidity of
the defendants’ grants. The fact is he claims that
right in spite of them, having set up a right prior
to that of defendants and derived from treaties
to which defendants are strangers but which
rights they deny to him.
How can it be argued with reason that because
of the allegations of the complaint which show
how the defendants came into possession of the
lands in question these allegations are thrown in
to raise a federal.question, when by prior allega-
tions it plainly appears that plaintiff’s right of
possession arises out of prior treaties and
statutes, under which his tribe was enjoying such
possession when ousted therefrom?
If there be struck from the record the two trea-
ties and the statute under which complainant ac-
tually claims the right of possession, and the con-
stitution and history of the United States be abol-
ished, it might be said with reason that the eom-
plaint violated the rule laid down in Taylor v.
Anderson, supra. With the treaties and the stat-
ute under which he claims set out in. the com-
plaint, and the averments therein based on them
which have been mentioned, the facts must be
seen to be fundamentally dissimilar from those in
Taylor v. Anderson in which the sole claim ad-
vanced was to a right of possession based on the
invalidity of a deed in which defendant and not
the plaintiff was the grantee.
28
The averments contained in the complaint as to
the acts of the State of New York were in no sense
surplusage, as declared in argument by counsel
for the defendants. They were essential to de-
scribe the manner in which defendants acquired
their present possession by and with the official
aid and upon the authority of the State of New
York, and to show that plaintiff had been ousted
of his actual possession. But even if they were
surplusage; if without them a good case is stated
in the complaint, their inclusion cannot: vitiate
the complaint since, if they be stricken out, a
claim by plaintiff of the right of possession under
the treaties of 1784 and 1796 and 7 Stat. 55, would
remain. Certainly it would not then be upon the
weakness of the defendants’ title that plaintiff’s
action would be based, nor upon the invalidity of
any grant held by them, since they were not even
parties to the treaties mentioned. At worst, there-
fore, plaintiff can only be said to have set out the
basis of two causes of action, one of which is good
and the other of which is barred by the rule in
Taylor y. Anderson. In any view of the case,
plaintiff stands on the former which meets every
conceivable objection that can be inferred from
Taylor v. Anderson.
POINT V.
The lapse of time has no effect upon the
_ sufficiency of the complaint.
The weakness of defendant’s position was. in-
dicated at the outset in the argument of their
counsel by the stress placed on the lapse of a
century since the ouster of the St. Regis Tribe.
29
What effect can laches have for the purposes of
this. motion?
Laches is a matter which can only be pleaded to
the merits and like all other matters of alleged
fact must be established in evidence. It may very
well be that the evidence will disclose extraor-
dinary diligence in the assertion of the rights of
the St. Regis Tribe and the plaintiff. Plaintiff
cannot be denied the opportunity to prove the
fact of diligence. Therefore, even if laches were
pleadable on this motion, the court has had no
suggestion of lack of diligence save through the
intimation of defendants’ counsel.
Moreover, so long as the guardianship of the
United States over the St. Regis Tribe continues,
which guardianship has been established both by
the allegations in the complaint and the author-
ities cited in this brief, defendants are estopped
from pleading the doctrine of laches, since to
plead laches against the plaintiff is but to plead
it against the United States under whose para-
mount title plaintiff claims.
Dunbar v. Green, 198 U. 8. 166;
U.S. v. La Chapelle, 81 Fed. 152;
Laughton v. Nadeau, 75 Fed. 789;
U.S. v. Sandoval, 231 U. 8. 45;
Bluejacket v. Ewert, 265 Fed. 823, 259
U.S. 129;
Okla, Oil Co. v. Bartlett (C. C. A. 8th
Cir.), 236 Fed. 488;
Feliz v. Patrick, 145 U. 8. 317;
Schrimpscher v. Stockton, 183 U. S. 291.
The intimated bar of the century which has
passed since the St. Regis Tribe was ousted of
its rights is a mere mirage of a defense that
vanishes under the scrutiny of the law. Of ap-
parent materiality, when approached it dissipates
30
before the logic of the law. Analyzed, the un-
doubted rule is the necessary consequence of the
political relation of guardian and ward at In-
ternational Law between the United States and
plaintiff.
A dependent race or tribe is not like an indiv-
idual. Its responsibility does not enhance with
the passage of time. Its members may be as much
children in one generation as in another. Their
legal capacity does not mature. From the con-
tinuance of a political guardianship over them
with all that this implies flows the irrefutable
legal presumption that its lack of capacity for
self-protection has also continued. If at any time
it has become capable of protecting itself with
the same degree of efficiency and certainty of
which a competent individual is capable, there
would have ceased all moral as well as all legal
justification under the law of nations for the
guardianship whence alone a civilized sovercign
state derives the right of political guardianship
over a politically inferior race. Consequently,
the municipal law of the United States, as shown,
in order to conform to the principles of Interna-
tional Law, holds that so long as tribal Indians.
remain in the State of political pupilage or in the
relation of wards of the United States, the com-
munity and those composing it are as equally in-
capable of protecting themselves at law at one
stage of their wardship as at another—just as
much so at the end of a century as at the begin-
ning of the relation, During the guardianship the
tribal group is simply deemed never to have at-
tained the age of full responsibility at law. No
other rule would be equitable. Plainly it would
be utterly inconsistent for a civilized state to as-
sume to deny a dependent race the rights incident
to a status of legal and political equality with
31
others subject to its sovereignty, and at the same
time impose upon it equal responsibilities and
liabilities, and the law of nations applicable to
the guarantees of the property rights of the In-
dians contained in the treaties of 1783 and the
Granville-Jay Treaty of 1794 between Great
Britain and the United States, permits no such
course. It is under that law, not under the
municipal law of the United States, that the basic
rights of plaintiff and the persistence and ter-
mination of his rights are to be determined. It is
seen then, how gossamer-like, how lacking in sub-
stance, is the intimation of the defense that the
rule which penalizes the ordinary individual for
sleeping on his rights has any application what-
soever to a dependent race that can morally and
legally be subjected to a state of wardship only
upon the theory that it is incapable of bearing the
same burden of responsibility and legal liabilities
as others.
It is not new tactics. It is the familiar argu-
ment of an urgent civilization. Too often it
has been addressed to courts which have found
their courage insufficient to resist the deter-
mined and persistent encroachments upon the
rights of those for whom that civilization has
pledged its responsibility. To the everlasting
honor of the Federal courts their aid has seldom
been won by such appeals. Looking back through
the mist which time and expediency have united to
cast over the aboriginal rights, with unshaken
courage a Marshall or a Hanford has in the clarity
of an unbeclouded moral vision been able to dis-
cern those rights which though ancient have re-
mained unimpaired by time.
See Opinions of Chief Justice Marshall in John-
son v. McIntosh, Cherokee Nation v. Georgia,
Worcester v. Georgia, and of Justice Hanford in
U.S. v. La Chappelle, supra.
ti
{
i
|
i
'
I
i
32
Even in this action it is now being contended
by the State of New York itself that plaintiff has
no remedy either in the Federal or the State
courts for rights it does not deny. If the great
State of New York and the other defendants are
sincere in that defense, how can it be said that the
St. Regis Tribe and the plaintiff at any time dur-
ing the past century, while still the ‘‘unlettered”’
wards of the Nation, have been better advised of
their rights than the State of New York and, there-
fore, under the necessity of resorting to the courts
to overrule the authority of the great sovereign
State claiming rights adverse to their own?
With what utter inconsistency, what lack of the
sense of equity, does a sovereign invoke in its own
favor the equitable doctrine of laches against a
dependent race for whom before God it volun-
tarily united in assuming the responsibility of a
guardian, and on behalf of whom it solemnly
pledged to the sisterhood of nations enduring pro-
tection of its rights unimpaired save by its genu-
ine consent.
Again, is it not indisputably true that when the
alleged disabilities of the St. Regis Tribe and the
plaintiff as litigants were removed by the Act of
June 2, 1924, making them citizens of the United
States, instantly the plaintiff on his own behalf
and that of his tribe proceeded to institute this
action? Could a clearer case of diligence than
that which plaintiff has manifested in the asser-
tion of his rights under the treaties of 1783, 1794,
1784, 1796, and 7 Stat. 55, have occurred? If the
instant the oft-asserted claim of the State of New
York that he could not sue was negatived by law,
he proceeded to bring this action, how can the
State invoke the doctrine of laches even were it
applicable to tribal Indians? Plainly it is
°
33
estopped by its own denial of his right to sue,
from claiming that he lost his right by not suing.
The inconsistent situation in which the State
finds itself is but the inevitable consequence of
seeking to set up an adverse right to one which
upon its delegated authority has been guaranteed
forever. Such a legal inconsistency, let alone a
moral one, a guardian who seeks to override the
rights of the ward’can never avoid, be the guar-
dian an individual or a state.
POINT VI.
The motions to dismiss should be denied.
It is submitted that every authority cited
against plaintiff’s rights in the premises to bring
this action has been rendered inapplicable by the
general enfranchisement act of June 2, 1924, which.
removed every conceivable pre-existing disability
on his part, and placed him in the same status as
any other citizen of the United States. This, it is
believed, if decided in this case, will be decided
for the first time by a Federal Court. But such
a decision is not fundamental to the issue in this
case.
It has been shown that the St. Regis Tribe pos-
sessed the right of execlusive possession of the
land which is the subject of this action; that that
vight was confirmed by United States treaties;
that the tribe has been ousted; that plaintiff, prior
to the Act of June 2, 1924, had the right to sue
in his own name as a commoner on behalf of him-
self and his fellow communal owners of the St.
Regis Tribe, and that this court has jurisdiction
of this action because it necessarily presents a
Federal question.
34.
Therefore, it is submitted that under the deci-
sion in Taylor v. Anderson, 234 U. 8. 74, and the
authorities cited therein, defining what is a good
complaint in ejectment, the complaint should be
sustained, and the defendants required to plead
to the merits.
Wise, Wurryny & Parxzr,
Epwarp A, Everert,
, Attorneys for Plaintiff’,
15 William Street,
Borough of Manhattan,
New York City.
Henry A, Wiss,
Jzunyines C. Wisn,
Cart EH, Waurrnny,
Of Counsel.
[16912]
CC BY-NC-SA 4.0