Shongo v. Miller (45 A.D. 339, 1899)

Spring, J.:

The Hational government, by its treaties and congressional acts, has, dealt with the Indians in their tribal capacity. The title of the .land on* the various Indian reservations has been treated as belonging to the tribe in possession, and whenever the individual Indian -lias been recognized in his possession or ownership of the land it lias been to subserve some ulterior, paramount purpose. And while Ahe Indian title preceded the forced possession acquired by the -whites by superior strength on the early settlement of the country, ;a,nd in the rapid absorption of territory to meet the demands of a growing nation, still that title has been under the dominion of the United States government. From the early history of the country the Indians have been regarded as the wards of the nation. As was said by Chief Justice Marshall in The Cherokee Nation v. The State of Georgia (5 Pet. 1, 17), “ they are in ■ a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”

It was early apparent that if the Indians were to retain the possession and title of lands set apart for them by the government in its guardianship over them, conveyances or leases to the white people must be inhibited. In recognition both of the dependence of the Indian and of the greed of their w-hite brothers, by chapter 13, United States Laws of 1802 (2 U. S. Stat. at Large, 148), it is provided in section 12, “ That no purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian or nation, or tribe of Indians within the bounds of the United States,, -shall be of any validity in law or equity, unless the same be made by treaty or convention, entered into pursuant to the constitution,” and the act further makes the violation of this prohibition a misdemeanor., This same prohibition was embodied in the act regulating trade and intercourse Avith the Indians passed June 30, 1834 (4 U. S. Stat. M Large, Y30, § 12).

While the tribal- relation was recognized by the United States government as the unit, yet the individual Indian did acquire possession and OAvnei-ship of specific tracts of land. These titles founded earn cultivation and occupancy Avere upheld by the Indian nation, and the muniments of title were recorded .in their books, and transmission by devise, or to the heirs at law in case of intestancy, was sanctioned. To stimulate and foster this sentiment of thrift the individual Indian, “ being desirous to adopt-the -habits of civilized life,” was allowed to become the beneficiary in the allotment -of land, and the agent or superintendent in charge was directed to protect him. in the quiet and peaceable enjoyment of land so allotted to him. (12 U. S. Stat. at Large, 427.) But. in this congressional control over the Indians the right of dominion in the national government has always, been maintained. . If the Indian was given the right .to ácquire land on the reservation it was for the purpose of his enlightenment and-advancement, and no greater title was vested in him than his tribe possessed.

Disregarding the injunction that the leases and conveyances to the white people were prohibited, the individual Indians on the Allegany reservation leased to the white people constantly. There was little cultivation of the land by the Indians. The Seneca nation owned a strip one mile wide along the banks of the Allegany river for forty miles, and it. was valuable, tillable land. The influx of the railroads made the cultivation of .this land and the location of villages almost a necessity. Out of this emergency grew the wholesale leasing of land mainly by the individual Indians whose title depended on the allotment by their nation. Six villages were established within the limits of the reservation, and Salamanca, the largest of these, had a population of 3,000 people. The title to all this land rested upon these forbidden leases, was of precarious tenure, and the occupant conld be dispossessed summarily at any time. The land when taken was practically of little value to the Indians and little revenue was derived from it, but. the white occupants attorned to their • respective lessors and made valuable improvements. The uncertain tenure of the title of the lessee retarded the growth of the village and lessened the value of the leased land.

The leases made by the individual Indians were recognized by the council of the Seneca nation, and license fees or taxes were in some instances paid directly to the council to obtain its sanction to these leases. Therefore, both the individual Indians and the tribe were acting in open violation of the congressional enactments prohibiting leases to the white people. The land was designed for the benefit of the Indian, but for the purpose of cultivation, to instill into him habits of thrift, economy and good husbandry, not with a view to speculation or commerce with his white brother.

This situation, therefore, confronted Congress : The Indians had leased their lands to the whites. The latter had made improvements and established these six villages. The Seneca Nation not. merely acquiesced in this disregard of the prohibition to lease to the white people, but received benefit from it, and encouraged and: abetted this transfer of the property. The Congress of the United States, to make more effective titles which had originated under the: protection and instigation of the tribe, passed the act approved. February 19,1875. (18 U. S. Stat. at Large, 330.) This act did not create any leases. It gave vitality by congressional approval to-what had already received the indorsement of the Seneca Nation.' Congress in effect said to the Seneca Nation : You_have violated the: treaty with the United States by farming out your lands to the: whites, but, inasmuch as you have voluntarily done this and received a valuable consideration therefor, and important rights have arisen, through your unauthorized action, we realize you should be estopped to' annul these leases and some tangible life should be imparted to-them.

The 1st section of this act ratified the leases made by the Seneca Nation to railroad corporations and gave the nation authority to-lease land for railroad purposes. The 2d section provided for the-appointment of commissioners to establish the boundaries of these-six villages. In the 3d section all leases of land in any of said villages in which the Indians as individuals, the Seneca Nation or persons claiming under them are lessors, shall be valid and binding upon the parties thereto and upon the nation for five years from the date of the enactment unless they earlier expire; that at the maturity of said leases terminating within said period, and in any event at the end of said period, the title of all of said lands is to be reinvested in the Seneca Nation with power to lease the same. But said reinvesting of the title is subject to the condition that a new lease-is to be given by the nation in each case to the white person who* has made improvements and is in possession under an outstanding lease ; that said renewal lease shall be for the period of twelve years and the nation is to be the lessor. If disagreement arises over the-amount of the annual rent or the terms of the lease, referees are-, provided for to adjust these differences whose determinations- shall be final. The right of renewal at the expiration of the twelve years-is given at-the option-of the lessee, his. heirs or assigns.

That is, this section was operative upon existing leases, unqualifiedly confirming them for five years, whether given by the nation, or individuals. However long they might by their terms continue all were made to expire as early as February 19, 1880, so that new leases assuring a valid title during their life might be given of that date. The giving of life to these invalid leases for five years Was preliminary to the ulterior purpose of shaping matters so that the council could renew.

Section 4 of the act (p. 331) gave the nation authority to lease lands which no individual Indian or Indians or their lessors could rightfully hold under the tribal customs; that is, some of the land within the boundaries of these villages had never been allotted to the individual Indians or leased to the white people, but the title still remained in the Seneca Nation, and the right to lease these lauds was accorded to the nation, bringing them within the same' category as the lands occupied under lease. Congress, however, was particular to exempt from this clause any land which individual Indians held and which had not been leased to the whites. The right of a white person to possess land by virtue of a transaction with an individual Indian must depend upon a lease.

Section 5 directed- the commissioners to define the boundaries of these several leased parcels and provided for the recording of the leases in the clerk’s office of Cattaraugus county and for their transfer by assignment and transmission by will or the laws of descent,, and' then added: “ Provided, however, That the rights of Indians in such leases shall descend as provided by the laws of said Seneca. Nation.”

The individual Indian possessed the right to his lease for the term, of five years after the passage of the act if it contained so much of unexpired life. And this clause may relate to the title during that period. Again, it may be a qualifying clause indicating that Congress did not seek to interfere with the council or the Seneca Nation in its domestic or tribal customs, and if it wished the rent to be paid to the lessor, there would be no congressional interference. It certainly did not intend to recognize the validity of any title in the individual Indian of lands which he had leased. That would have been in contravention of the import of the whole act, as it is framed in recognition of the. tribal title and in disregard of the title of the ' individual. The act is very specific in providing that the title is to vest in the nation upon the expiration of' the leases. To be sure, the existing leases are the basis of the operation of the act. But that was necessary, as the design was to assure title to the white lessees, and in no other way could the purpose be accomplished than by confirming these invalid instruments.

In 1890 this act was amended by making the renewable period ninety-nine years.

But it is urged strenuously that the act of Congress is a violation of the treaty made with the Six Nations, of which the Senecas formed a part, November 11, 1794. (7 IT. S. Stat. at Large, 44.) Article 2 of said treaty acknowledges the reserved lands to be the property of' the Indians, and guarantees that title incontestably in the Indians