Fellows v. Blacksmith
Encyclopedia
Fellows v. Blacksmith, 60 U.S. (19 How.) 366 (1857), was the first litigation of aboriginal title in the United States
in the U.S. Supreme Court by an indigenous plaintiff since Cherokee Nation v. Georgia
(1831). According to a contemporary New York Times article: "The questions involved are of great magnitude, and affect more or less the title to a large portion of the State of New York."
In Fellows, the court found "its first opportunity to consider the power of the federal government over Indian lands in New York." Fellows was "decided at a time when the government was still dealing with Indian tribes as if they were semi-sovereign nations."
The Court affirmed a judgement for an indigenous plaintiff on a cause of action for trespass
. Moreover, the Court held that Indian removal
treaties could not be enforced by private parties, either through self-help
or through the courts. Fellows also underscored the importance of the trust relationship between the federal government and the tribes in holding that the federal government retained the sole discretion to enforce, or not enforce, such treaties against the tribes. The decision in Fellows followed notwithstanding the fact that the defendants held the right of pre-emption by virtue of an interstate compact
which had been ratified by Congress.
over and land title
to modern-day western New York was disputed
between (the colonies, and then states, of) New York and Massachusetts, both claiming the lands by virtue of their colonial charter
s. This dispute was resolved on December 16, 1786 by the Treaty of Hartford
, an interstate compact
providing that the lands would be part of the territory of New York, but Massachusetts would retain (and have the right to sell or assign) the right of pre-emption (the right of purchasing lands from Indians) to the lands. The compact was approved by the Congress of the Confederation
on October 8, 1787.
Oliver Phelps
and Nathaniel Gorham
acquired the right of pre-emption to the lands in question from Massachusetts in 1788 as part of the Phelps and Gorham Purchase
. However, Phelps and Gorham only consummated the right of pre-emption for a tract east of the Genesee River
in 1788. Phelps and Gorham defaulted on their payments to Massachusetts in 1790, and the pre-emption rights reverted back to the state, which re-conveyed them to Samuel Ogden
on behalf of Robert Morris on May 12, 1791. Morris retained the pre-emptive right to the Morris Reserve
for himself, but sold the pre-emptive right to the lands in question to the Holland Land Company
on July 20, 1793 (the Holland Purchase
).
The Holland Land Company consummated much of its pre-emptive right in the Treaty of Big Tree
(1797), extinguishing all Seneca aboriginal title west of the Genesee River except in ten reservations. The dispute concerned one of those reservations. The Treaty of Buffalo Creek
(1838) had provided for the relocation of the Seneca people from New York to present-day Kansas
—from all four reservations: the Buffalo Creek Reservation
, the Cattaraugus Reservation
, the Allegany Reservation, and the Tonawanda Reservation. However, the Seneca refused to be relocated. Another treaty with the Senecas from 1842 modified the prior treaty: the Senecas were to keep Cattaraugus and Allegany, but still cede Buffalo Creek and Tonawanda. The Seneca Nation of New York
was established in 1848. The Tonawanda Band of Seneca Indians
seceded from the Seneca Nation and achieved independent federal recognition (after the decision) in 1857.
. However, with the exception of Cherokee Nation v. Georgia
(1831), which was dismissed for lack of original jurisdiction
, all the disputes had been between non-Indians—typically between those who derived their title from the government and those who derived their title from private purchases from Indians. The uniform rule of these cases, enunciated most clearly in Johnson v. M'Intosh
(1823), was that non-Indians could not acquire valid land title from such private purchases. However, the purchase at issue in Fellows, the Treaty of Buffalo Creek (1838), had been ratified by the federal government. Although the Senecas alleged that the treaty was fraudulent, it was federally ratified.
The Court had not yet encountered a party's claiming to hold unalienated aboriginal title in a case in which it had jurisdiction, so it had not yet definitively resolved the question of whether the holders of aboriginal title could avail themselves of the common law
causes of action
of trespass
or ejectment
. In dicta at the end of his opinion in Fletcher v. Peck
(1810), Marshall had stated that ejectment could not be obtained by the title holder against the holder of aboriginal title. The Taney Court (1836—1864), also in dicta in Marsh v. Brooks (1850), went further in declaring that the holder of aboriginal title could obtain ejectment, stating: "That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question" (there, in oral argument, Cherokee Nation had been cited for the proposition that "Indians cannot sue on their aboriginal title in court of the United States."). The plaintiffs in Fellows had sued under the related cause of action of trespass.
An 1821 opinion of U.S. Attorney General William Wirt
, interpreting Fletcher and Johnson, argued that: "The Seneca Indians must be protected in the enjoyment of exclusive possession of their lands, as defined and bounded in the Treaty of Canandaigua
, until they have voluntarily relinquished it."
Facts
John Blacksmith was a member of the Tonawanda Band of Seneca Indians
, the sachem
of the Wolf Clan. Blacksmith had constructed a "Indian sawmill and yard" on his close within the Tonawanda Reservation
in in Pembroke
, Genesee County
, New York
circa 1826. Blacksmith had not received compensation for the value of his improvements (to wit, the sawmill and yard), as provided for by the 1838 and 1842 treaties, because he forcibly refused to let the treaty arbitrators onto his property for the survey. The Ogden Land Company claimed title to the Tonawanda Reservation by virtue of its right of pre-emption, consummated by the treaties. Agents of the company "expelled and dispossessed" Blacksmith "with force of arms."
Supreme Court (trial court)
The suit was originally brought by John Blacksmith in 1846. Represented by lawyer John H. Martindale
, Blacksmith sued Joseph Fellows and Robert Kendle, agents of the Land Company, for the torts of assault
and battery
and trespass
, quare clausum fregit, with the sawmill as the locus in quo
. Blacksmith's wife and Ely S. Parker
(Blacksmith's successor as sachem
of the Wolf Clan), together the administrators of Blacksmith's estate, succeeded Blacksmith as plaintiffs.
After a jury trial, the New York Supreme Court
held for Blacksmith and Parker.
Supreme Court, General Term
The New York Supreme Court General Term ("circuit court") denied a new trial on the grounds that the payment of the appraisal value of the improvements determined by the arbitrator was a condition precedent
to the conveyance in the treaty.
Court of Appeals
Before the New York Court of Appeals
, Fellows was represented by J. C. Spencer, who made three arguments. First, he argued that the right to bring an action for trespass based on aboriginal title accrued only to an Indian nation, not an individual Indian. As Spencer noted, the Seneca Nation itself was prohibited by law from bringing an action "by a private attorney." Second, he argued that Fellows' title was valid. Third, he argued that the Seneca's rights under the treaty were only enforceable against the federal government, and did not affect the defendant's title as a condition precedent
. Martindale's responses were not reported.
The Court of Appeals, 6-1, sided with Fellows. Judge John Worth Edmonds delivered the majority opinion, joined by Chief Judge Charles H. Ruggles
and Judges Addison Gardiner
, Freeborn G. Jewett
, Alexander S. Johnson
, and Watson. Judge Welles dissented and Judge Gridley was absent.
The Court of Appeals held that Blacksmith could independently bring the claim for trespass, for which he need only show a right to possession. The Court of Appeals also held that Fellows' title was invalid, because the payment of compensation was a condition precedent. Welles, in dissent, agreed that Blacksmith could individually sue for trespass, but disagreed that the appraisal was a condition precedent; he would have reversed and granted a new trial, with costs. The Court of Appeals remanded back to the Supreme Court, after which a writ of error was granted by the U.S. Supreme Court.
argued the case for the Senecas before the Court. Commissioner R.H. Gillet and J.L. Brown of the Ogden Land Company argued for the defendants. Arguments (Case No. 47) commenced on January 15, 1857 and were adjourned until January 17.
The plaintiff, Ely S. Parker
, according to the New York Times, personally attended the oral arguments before the U.S. Supreme Court in Washington, D.C.:
A letter to the editor of the New York Times—which criticizes the previous article for creating the "impression that the Indians at Tonawanda are very nearly the equal in agriculture, general intelligence, and in the customs of civilized life, of their white neighbors"—concurs with this assessment of Parker's role (if only as an indirect way of attacking the Fellow ruling):
Chief Justice Roger Taney was not present at the opinion announcement for Fellows because he was at home working on the opinion in Dred Scott v. Sandford
, which was announced the next day. The Taney court had inherited from the preceding Marshall Court voluminous pages on the status of aboriginal the in the United States
. None of those decisions was cited in either opinion. Dred Scott, in dicta, opined the following on aboriginal title:
Justice John Catron
, concurring in Dred Scott, also noted in dicta that:
delivered the opinion of the unanimous Court.
Effect of the Treaty
The court observed:
The court noted that previous removals of Indians
had been undertaken by the federal government "according to the usage and practice of the Government, by its authority and under its care and superintendence." "[A]ny other mode of a forcible removal," the court argued, would not "be consistent with the peace of the country, or with the duty of the Government to these dependent people, who have been influenced by its counsel and authority to change their habitations."
Because the treaty had been negotiated "with them as a quasi nation, possessing some of the attributes of an independent people, and to be dealt with accordingly," the Court held that "unless otherwise expressly stipulated" only the federal government had the "authority or power" to execute the agreement. The Court remarked that the Senecas were "in a state of pupilage, and hold the relation to the Government as a ward to his guardian." The nature of that relationship between the Seneca and the federal government was incompatible with the Seneca being expelled by "irregular force and violence," or even "through the intervention of the courts of justice." Thus, the court held that the private beneficiaries of Native American treaties could neither expel tribes by force or by a cause of action for ejectment
. The court observed that "this interpretation is in accordance with the usages and practice of the Government in providing for the removal of Indian tribes from their ancient possessions, with the fitness and propriety of the thing itself," and with the text of the treaty.
Validity of the Treaty
However, the Court did not accept the Seneca argument that the treaty was invalid because the Seneca were not represented by the appropriate leaders. Analogizing to the enrolled bill doctrine
(the only citation of case law in the opinion), the Court held that "the treaty, after executed and ratified by the proper authorities of the Government, becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operation."
Conditions Precedent
Because its aforementioned holdings required affirmance, the Court did not reach the alternate ground for decision of the trial court that the appraisal and the payments were conditions precedent
(i.e. the Court could have rested its holding on the much narrower ground that the dam and sawmill improvements built by Blacksmith had not been paid for). The Court concluded: "We hold that the performance was not a duty that belonged to the grantees, but for the Government under the treaty."
, of Verplank & Martindale, also represented Seneca plaintiffs in three other contemporary suits against the Land Company and its grantees: People ex rel. Blacksmith v. Tracy (N.Y. Sup. 1845); People ex rel. Waldron v. Soper (N.Y. 1852); and New York ex rel. Cutler v. Dibble
(U.S. 1858). At the time, Martindale (the future New York Attorney General) was well-known for litigating personal injury
torts against railroads, especially New York Central Railroad
.
Whereas Fellows was brought in the New York Supreme Court under the common law cause of action of trespass, these three suits were brought (as required by statute) in the Genesee County Court
under a state statute prohibiting non-Indians from residing on Indian lands. That statute provided:
The statute further provided:
From 1821—1846, the district attorney would have been appointed; thereafter, the office was elected. Martindale was the district attorney of Genesee County from 1842—1844 and again from 1847—1849. Thus, Martindale himself filed the complaints in People ex rel. Blacksmith v. Tracy and People ex rel. Waldron v. Soper. His successor, Seth Wakeman
(1845—1850) filed the complaint in New York ex rel. Cutler v. Dibble. It appears that Martindale was district attorney when the complaint in Tracy was filed, but lost the election, and attempted to litigate the mandamus issue as a private attorney.
The results of the three suits were mixed. Martindale was defeated in the New York Supreme Court
and New York Court of Appeals
, respectively, in the first two, but had prevailed in the Court of Appeals and, ultimately, the U.S. Supreme Court in the third.
, was presented on January 11. Judge Phineas L. Tracy
, of the Genesee County Court (1841—1845), declined to issue a warrant to the Genesee County Sheriff to remove the Ogden grantees.
Still in January, Martindale applied to the Supreme Court for mandamus, and the court issued an alternative mandamus (essentially, an order to show cause
why preremptory mandamus should not issue) on March 6, 1845, which was served
March 25. On April 19, the deadline was extended to the first Tuesday in June. Before the Supreme Court, Martindale was joined by New York Attorney General John Van Buren
and opposed by A. Taber and J. L. Brown.
That June, Judge Jewett granted Tracy's motion to quash, without costs. The court held that only the district attorney
could bring such an action to enforce the statute:
The court also found the affidavit
of Parker to be insufficient as a factual matter to comply with the terms of the statute. However, even if the district attorney had brought the action and the affidavit had been sufficient, the Supreme Court still would have denied mandamus as a matter of law.
, granted a writ of certiorari
, and affirmed in March 1849. "Waldron" is the only party subject to the writ of removal named in the Court of Appeals opinion (the only reported opinion) and only by last name.
The Court of Appeals reversed and annulled the writ in October 1852. Judge John Worth Edmonds, for a unanimous court, gave two reasons. First, it held that the court had no power to proceed against the majority of the defendants because they were not properly summoned and caused to appear
. Second, with respect to defendant Waldron (who had voluntarily appeared), the court held that "it does not appear that these lands were owned by the Indians."
(1845—1850), filed a complaint against Asa Cutler, John Underhill, and Arza Underhill (grantees of the Land Company) under the same statute, on February 19, 1853. Thomas Black, a Seneca who had made and apparently been compensated for some improvements, allegedly consented to the Underhills presence. Judge Edgar C. Dibble, of the Genesee County Court (1846, 1851—1854) and a one-time partner of Martindale, granted the writ of removal. The Supreme Court granted certiorari and affirmed on September 4, 1854, holding that "the Seneca nation had not duly granted and conveyed the reserve in question to Ogden and Fellows." The judgement of the Supreme Court was delivered by Judge Marvin, joined by judges Bowen and Green; Judge Mullet dissented without opinion.
The Court of Appeals—after the second argument—also affirmed in September 1857. The majority opinion was authored by Judge Brown, joined by Judges Comstock, Paige, Shankland, and Bowen; The Court of Appeals held that the state statute did not violate the New York Constitution and that a jury trial was not required because the defendants had no property right. In closing, the Court of Appeals cited the U.S. Supreme Court's recent decision in Fellows. Chief Judge Hiram Denio
, joined by Judge Alexander S. Johnson
, concurred on the constitutionality of the 1821 state statute, but dissented on the grounds that the treaties extinguished the aboriginal title, and thus the state statute either did not apply or violated the treaty. Judge Selden recused.
By the time Fellows was decided, Dibble had reached the U.S. Supreme Court but had not yet been argued. The Court eventually affirmed in 1858, holding that the state statute did not violate the Indian Commerce Clause, the federal Nonintercourse Act, or the treaty.
in all four cases had been that the Treaty of Buffalo Creek
(1838) was invalid because it was not signed by the right Seneca leaders, and the signatures it did contain were obtained by coercion or fraud. This argument had not prevailed before the New York Courts or the Supreme Court. As Brown notes:
Fellows has been cited approvingly as a source of the enrolled treaty doctrine in cases denying relief to Native American tribes for treaty-based claims.
The Tonawanda Seneca were never relocated to Kansas, and a new 1857 treaty confirmed their title to a 7,549-acre reservation. This treaty ended 15 years of litigation between the Tonawanda Band and the Ogden Land Company.
The Seneca, again represented by Martindale, prevailed in New York ex rel. Cutler v. Dibble
(1858). Seneca Nation of Indians v. Christy
(1896) also involved a Seneca plaintiff represented by a Civil War general. There, the plaintiffs challenged the Phelps and Gorham Purchase
under the Nonintercourse Act. Fellows was not cited. In 1899, the U.S. Supreme Court upheld a $1,967,056 judgment of the Court of Claims (pursuant to an enabling statute) against the federal government based on the 1838 treaty. Fellows was cited by Oneida I
(1974) for the proposition that "the possessory right claimed is a federal right to the lands at issue in this case."
went on to become a member of General Ulysses S. Grant
's staff during the American Civil War
, drawing up the terms of the surrender at Appomattox Court House. After the war, President Grant appointed Parker as Commissioner of Indian Affairs, the first indigenous head of the Bureau of Indian Affairs
. According to his New York Times obituary, Parker "negotiated the removal of his tribe from this State to the fertile and pleasant lands on Green Bay, Wisconsin
."
The Seneca's lawyer, John H. Martindale
, later appeared before the U.S. Supreme Court, as New York Attorney General, in In re New York Indians (1866), arguing that the state had the right to tax the Senecas. The Court disagreed.
Aboriginal title in the United States
The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title...
in the U.S. Supreme Court by an indigenous plaintiff since Cherokee Nation v. Georgia
Cherokee Nation v. Georgia
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...
(1831). According to a contemporary New York Times article: "The questions involved are of great magnitude, and affect more or less the title to a large portion of the State of New York."
In Fellows, the court found "its first opportunity to consider the power of the federal government over Indian lands in New York." Fellows was "decided at a time when the government was still dealing with Indian tribes as if they were semi-sovereign nations."
The Court affirmed a judgement for an indigenous plaintiff on a cause of action for trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
. Moreover, the Court held that Indian removal
Indian Removal
Indian removal was a nineteenth century policy of the government of the United States to relocate Native American tribes living east of the Mississippi River to lands west of the river...
treaties could not be enforced by private parties, either through self-help
Self-help (law)
Self-help, in the sense of a legal doctrine, refers to individuals' implementation of their rights without resorting to legal writ or consultation of higher authority, as where a financial institution repossesses a car on which they hold both the title and a defaulted note...
or through the courts. Fellows also underscored the importance of the trust relationship between the federal government and the tribes in holding that the federal government retained the sole discretion to enforce, or not enforce, such treaties against the tribes. The decision in Fellows followed notwithstanding the fact that the defendants held the right of pre-emption by virtue of an interstate compact
Interstate compact
An interstate compact is an agreement between two or more states of the United States of America. Article I, Section 10 of the United States Constitution provides that "no state shall enter into an agreement or compact with another state" without the consent of Congress...
which had been ratified by Congress.
The dispute
Both the sovereigntySovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
over and land title
Title (property)
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...
to modern-day western New York was disputed
State cessions
The state cessions are those areas of the United States that the separate states ceded to the federal government in the late 18th and early 19th century...
between (the colonies, and then states, of) New York and Massachusetts, both claiming the lands by virtue of their colonial charter
Colonial charter
A charter is a document that gave colonies the legal rights to exist.A charter is a document bestowing certain rights on a town, city, university or an institution....
s. This dispute was resolved on December 16, 1786 by the Treaty of Hartford
Treaty of Hartford
The term Treaty of Hartford applies to three historic agreements negotiated at Hartford, Connecticut. The 1638 treaty divided the spoils of the Pequot War. The 1650 treaty defined a border between the Dutch Nieuw Amsterdam and English settlers in Connecticut...
, an interstate compact
Interstate compact
An interstate compact is an agreement between two or more states of the United States of America. Article I, Section 10 of the United States Constitution provides that "no state shall enter into an agreement or compact with another state" without the consent of Congress...
providing that the lands would be part of the territory of New York, but Massachusetts would retain (and have the right to sell or assign) the right of pre-emption (the right of purchasing lands from Indians) to the lands. The compact was approved by the Congress of the Confederation
Congress of the Confederation
The Congress of the Confederation or the United States in Congress Assembled was the governing body of the United States of America that existed from March 1, 1781, to March 4, 1789. It comprised delegates appointed by the legislatures of the states. It was the immediate successor to the Second...
on October 8, 1787.
Oliver Phelps
Oliver Phelps was born in Poquonock, Connecticut and moved to Suffield, Connecticut, where he apprenticed to a local merchant. He shortly thereafter became a tavern keeper in Granville, Massachusetts. During the Revolution he was Deputy Commissary of the Continental Army and served until the end...
and Nathaniel Gorham
Nathaniel Gorham
Nathaniel Gorham was the fourteenth President of the United States in Congress assembled, under the Articles of Confederation...
acquired the right of pre-emption to the lands in question from Massachusetts in 1788 as part of the Phelps and Gorham Purchase
Phelps and Gorham Purchase
The Phelps and Gorham Purchase was the purchase in 1788 of the pre-emptive right to some 6,000,000 acres of land in western New York State for $1,000,000 . This was all land in western New York west of Seneca Lake between Lake Ontario and the Pennsylvania border...
. However, Phelps and Gorham only consummated the right of pre-emption for a tract east of the Genesee River
Genesee River
The Genesee River is a North American river flowing northward through the Twin Tiers of Pennsylvania and New York. The river provided the original power for the Rochester area's 19th century mills and still provides hydroelectric power for downtown Rochester....
in 1788. Phelps and Gorham defaulted on their payments to Massachusetts in 1790, and the pre-emption rights reverted back to the state, which re-conveyed them to Samuel Ogden
Samuel Ogden
Col. Samuel Ogden was a businessman, developer and land speculator who fought on the side of the patriots during the American Revolutionary War.-Biography:...
on behalf of Robert Morris on May 12, 1791. Morris retained the pre-emptive right to the Morris Reserve
Morris Reserve
The Morris Reserve was a 500,000 acre tract of land owned by Robert Morris in western New York in the late 18th Century. It was originally part of the 6,000,000 acre purchase in April 1788 of the pre-emptive right to all of Massachusetts' lands in western New York by Oliver Phelps and Nathaniel...
for himself, but sold the pre-emptive right to the lands in question to the Holland Land Company
Holland Land Company
The Holland Land Company was a purchaser of the western two-thirds of the western New York land tract known as the Phelps and Gorham Purchase. This tract was known thereafter as The Holland Purchase...
on July 20, 1793 (the Holland Purchase
Holland Purchase
The Holland Purchase was a large tract of land in what is now the western portion of the U.S. state of New York. It consisted of about 3,250,000 acres of land from a line approximately 12 miles to the west of the Genesee River to the present western border and boundary of New York State.The land...
).
The Holland Land Company consummated much of its pre-emptive right in the Treaty of Big Tree
Treaty of Big Tree
Treaty of Big Tree was a formal treaty, held from August 20, 1797 until September 16, 1797, between the Seneca nation and the United States of America. The delegates for both parties met at the residence of William Wadsworth, an early pioneer of the area and Captain of the local militia, in what is...
(1797), extinguishing all Seneca aboriginal title west of the Genesee River except in ten reservations. The dispute concerned one of those reservations. The Treaty of Buffalo Creek
Treaty of Buffalo Creek
-1788:The Treaty of Buffalo Creek should not be confused with the Phelps and Gorham Purchase of lands east of the Genesee River in New York, which occurred at Buffalo Creek on July 8, 1788...
(1838) had provided for the relocation of the Seneca people from New York to present-day Kansas
Kansas
Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
—from all four reservations: the Buffalo Creek Reservation
Buffalo Creek Reservation
The Buffalo Creek Reservation was a tract of land surrounding Buffalo Creek in the central portion of Erie County, New York. It contained approximately of land and was set aside for the Native Americans of the region...
, the Cattaraugus Reservation
Cattaraugus Reservation
Cattaraugus Reservation is an Indian reservation of the Seneca Indian Nation of the Iroquois Confederacy located in New York. As of the 2000 census, the Indian reservation had a total population of 2,412. Its total area is about 34.4 mi²...
, the Allegany Reservation, and the Tonawanda Reservation. However, the Seneca refused to be relocated. Another treaty with the Senecas from 1842 modified the prior treaty: the Senecas were to keep Cattaraugus and Allegany, but still cede Buffalo Creek and Tonawanda. The Seneca Nation of New York
Seneca Nation of New York
The Seneca Nation of New York, also known as the Seneca Nation of Indians is a federally recognized tribe of Seneca people in New York...
was established in 1848. The Tonawanda Band of Seneca Indians
Tonawanda Band of Seneca Indians
The Tonawanda Band of Seneca Indians maintained the traditional form of government by Seneca chiefs and clan mothers after the Alleghany and Cattaraugus Reservations broke away and formed the Seneca Nation of Indians in 1848...
seceded from the Seneca Nation and achieved independent federal recognition (after the decision) in 1857.
The precedent
The Marshall Court (1801—1835) had repeatedly taken up the issue of aboriginal title in the United StatesAboriginal title in the United States
The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title...
. However, with the exception of Cherokee Nation v. Georgia
Cherokee Nation v. Georgia
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...
(1831), which was dismissed for lack of original jurisdiction
Original jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
, all the disputes had been between non-Indians—typically between those who derived their title from the government and those who derived their title from private purchases from Indians. The uniform rule of these cases, enunciated most clearly in Johnson v. M'Intosh
Johnson v. M'Intosh
Johnson v. M'Intosh, 21 U.S. 543 , is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans...
(1823), was that non-Indians could not acquire valid land title from such private purchases. However, the purchase at issue in Fellows, the Treaty of Buffalo Creek (1838), had been ratified by the federal government. Although the Senecas alleged that the treaty was fraudulent, it was federally ratified.
The Court had not yet encountered a party's claiming to hold unalienated aboriginal title in a case in which it had jurisdiction, so it had not yet definitively resolved the question of whether the holders of aboriginal title could avail themselves of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
causes of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
of trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
or ejectment
Ejectment
Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
. In dicta at the end of his opinion in Fletcher v. Peck
Fletcher v. Peck
Fletcher v. Peck, , was a landmark United States Supreme Court decision. The first case in which the Supreme Court ruled a state law unconstitutional, the decision also helped create a growing precedent for the sanctity of legal contracts, and hinted that Native Americans did not hold title to...
(1810), Marshall had stated that ejectment could not be obtained by the title holder against the holder of aboriginal title. The Taney Court (1836—1864), also in dicta in Marsh v. Brooks (1850), went further in declaring that the holder of aboriginal title could obtain ejectment, stating: "That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question" (there, in oral argument, Cherokee Nation had been cited for the proposition that "Indians cannot sue on their aboriginal title in court of the United States."). The plaintiffs in Fellows had sued under the related cause of action of trespass.
An 1821 opinion of U.S. Attorney General William Wirt
William Wirt (Attorney General)
William Wirt was an American author and statesman who is credited with turning the position of United States Attorney General into one of influence.-History:...
, interpreting Fletcher and Johnson, argued that: "The Seneca Indians must be protected in the enjoyment of exclusive possession of their lands, as defined and bounded in the Treaty of Canandaigua
Treaty of Canandaigua
The Treaty of Canandaigua is a treaty signed after the American Revolutionary War between the Grand Council of the Six Nations and President George Washington representing the United States of America....
, until they have voluntarily relinquished it."
Prior history
John Blacksmith was a member of the Tonawanda Band of Seneca Indians
Tonawanda Band of Seneca Indians
The Tonawanda Band of Seneca Indians maintained the traditional form of government by Seneca chiefs and clan mothers after the Alleghany and Cattaraugus Reservations broke away and formed the Seneca Nation of Indians in 1848...
, the sachem
Sachem
A sachem[p] or sagamore is a paramount chief among the Algonquians or other northeast American tribes. The two words are anglicizations of cognate terms from different Eastern Algonquian languages...
of the Wolf Clan. Blacksmith had constructed a "Indian sawmill and yard" on his close within the Tonawanda Reservation
Tonawanda Reservation
The Tonawanda Indian Reservation is an Indian reservation of the Tonawanda Band of Seneca Indians located in western New York, USA. The band is a federally recognized tribe and, in the 2000 census, had 543 people living on the reservation...
in in Pembroke
Pembroke, New York
Pembroke is a town in Genesee County, Western New York, United States. The population was 4,530 at the 2000 census. The town is named for a town in west Wales.The town of Pembroke lies on the west border of Genesee County, west of Batavia, NY.- History :...
, Genesee County
Genesee County, New York
Genesee County is a county located in Western New York, United States. As of the 2010 census, the population was 60,079. Its name is from the Seneca Indian word Gen-nis'-hee-yo meaning "The Beautiful Valley." Its county seat is Batavia.- History :...
, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
circa 1826. Blacksmith had not received compensation for the value of his improvements (to wit, the sawmill and yard), as provided for by the 1838 and 1842 treaties, because he forcibly refused to let the treaty arbitrators onto his property for the survey. The Ogden Land Company claimed title to the Tonawanda Reservation by virtue of its right of pre-emption, consummated by the treaties. Agents of the company "expelled and dispossessed" Blacksmith "with force of arms."
Supreme Court (trial court)
The suit was originally brought by John Blacksmith in 1846. Represented by lawyer John H. Martindale
John H. Martindale
John Henry Martindale was an American lawyer, Union Army general, and politician.-Early life:Martindale was born in Sandy Hill, Washington County, New York, the son of Congressman Henry C. Martindale and Minerva Hitchcock Martindale. He entered the United States Military Academy at West Point in...
, Blacksmith sued Joseph Fellows and Robert Kendle, agents of the Land Company, for the torts of assault
Assault (tort)
In common law, assault is the tort of acting intentionally, that is with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact. Because assault requires intent, it is considered an intentional tort, as opposed to a tort of negligence...
and battery
Battery (tort)
At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
and trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
, quare clausum fregit, with the sawmill as the locus in quo
Locus in quo
Locus in quo means, in British common law, the "scene of the event", orThe phrase comes from the Latin language, meaning "The place in which"....
. Blacksmith's wife and Ely S. Parker
Ely S. Parker
Ely Samuel Parker , was a Seneca attorney, engineer, and tribal diplomat. He was commissioned a lieutenant colonel during the American Civil War, when he served as adjutant to General Ulysses S. Grant. He wrote the final draft of the Confederate surrender terms at Appomattox...
(Blacksmith's successor as sachem
Sachem
A sachem[p] or sagamore is a paramount chief among the Algonquians or other northeast American tribes. The two words are anglicizations of cognate terms from different Eastern Algonquian languages...
of the Wolf Clan), together the administrators of Blacksmith's estate, succeeded Blacksmith as plaintiffs.
After a jury trial, the New York Supreme Court
New York Supreme Court
The Supreme Court of the State of New York is the trial-level court of general jurisdiction in thestate court system of New York, United States. There is a supreme court in each of New York State's 62 counties, although some smaller counties share judges with neighboring counties...
held for Blacksmith and Parker.
Supreme Court, General Term
The New York Supreme Court General Term ("circuit court") denied a new trial on the grounds that the payment of the appraisal value of the improvements determined by the arbitrator was a condition precedent
Condition precedent
Condition precedent refers to an event or state of affairs that is required before something else will occur. In contract law, a condition precedent is an event which must occur, unless its non-occurrence is excused, before performance under a contract becomes due, i.e., before any contractual...
to the conveyance in the treaty.
Court of Appeals
Before the New York Court of Appeals
New York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...
, Fellows was represented by J. C. Spencer, who made three arguments. First, he argued that the right to bring an action for trespass based on aboriginal title accrued only to an Indian nation, not an individual Indian. As Spencer noted, the Seneca Nation itself was prohibited by law from bringing an action "by a private attorney." Second, he argued that Fellows' title was valid. Third, he argued that the Seneca's rights under the treaty were only enforceable against the federal government, and did not affect the defendant's title as a condition precedent
Condition precedent
Condition precedent refers to an event or state of affairs that is required before something else will occur. In contract law, a condition precedent is an event which must occur, unless its non-occurrence is excused, before performance under a contract becomes due, i.e., before any contractual...
. Martindale's responses were not reported.
The Court of Appeals, 6-1, sided with Fellows. Judge John Worth Edmonds delivered the majority opinion, joined by Chief Judge Charles H. Ruggles
Charles H. Ruggles
Charles Herman Ruggles was an American lawyer and politician who was a U.S...
and Judges Addison Gardiner
Addison Gardiner
Addison Gardiner was an American lawyer and politician who was the Chief Judge of the New York Court of Appeals from 1854 to 1855.-Early life and career:...
, Freeborn G. Jewett
Freeborn G. Jewett
Freeborn Garrettson Jewett was an American lawyer and politician who served as a U.S. Representative from New York and was the first Chief Judge of the New York Court of Appeals.-Life:He moved to Skaneateles in 1815, and was appointed a Justice of the Peace in 1817...
, Alexander S. Johnson
Alexander S. Johnson
Alexander Smith Johnson was an American lawyer and politician from New York...
, and Watson. Judge Welles dissented and Judge Gridley was absent.
The Court of Appeals held that Blacksmith could independently bring the claim for trespass, for which he need only show a right to possession. The Court of Appeals also held that Fellows' title was invalid, because the payment of compensation was a condition precedent. Welles, in dissent, agreed that Blacksmith could individually sue for trespass, but disagreed that the appraisal was a condition precedent; he would have reversed and granted a new trial, with costs. The Court of Appeals remanded back to the Supreme Court, after which a writ of error was granted by the U.S. Supreme Court.
Oral argument and announcement
John H. MartindaleJohn H. Martindale
John Henry Martindale was an American lawyer, Union Army general, and politician.-Early life:Martindale was born in Sandy Hill, Washington County, New York, the son of Congressman Henry C. Martindale and Minerva Hitchcock Martindale. He entered the United States Military Academy at West Point in...
argued the case for the Senecas before the Court. Commissioner R.H. Gillet and J.L. Brown of the Ogden Land Company argued for the defendants. Arguments (Case No. 47) commenced on January 15, 1857 and were adjourned until January 17.
The plaintiff, Ely S. Parker
Ely S. Parker
Ely Samuel Parker , was a Seneca attorney, engineer, and tribal diplomat. He was commissioned a lieutenant colonel during the American Civil War, when he served as adjutant to General Ulysses S. Grant. He wrote the final draft of the Confederate surrender terms at Appomattox...
, according to the New York Times, personally attended the oral arguments before the U.S. Supreme Court in Washington, D.C.:
All who heard their cases argued before the Supreme Court of the United States, a few months since, will recollect seeing this same Indian, and that he was well posted on the points he desired his counsel to press upon the attention of the Court.
I have not a word to say in the disparagement of the intellectual ability of Ely S. Parker, their head chief, and cheerfully unite with "W.H.P." in awarding him the credit for making valuable suggestions to his counsel on the argument of the case in the Supreme Court of the United States[.] Indeed, I am inclined to the belief, that to him is due the credit of originating and suggesting to his counsel the only available point in the case, and the one on which it was there decided, for the case had been ten years in the Courts of this State, and this point was never before made, nor was it made in the Supreme Court of the United States, in the original brief of counsel for the Indians, filed pursuant to the rules of the Court. It was first made in a supplementary brief printed after the opening argument of counsel on the other side had been commenced, and not handed in until the second day, just previous to its conclusion.
Chief Justice Roger Taney was not present at the opinion announcement for Fellows because he was at home working on the opinion in Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
, which was announced the next day. The Taney court had inherited from the preceding Marshall Court voluminous pages on the status of aboriginal the in the United States
Aboriginal title in the Marshall Court
The Supreme Court of the United States, under Chief Justice John Marshall , issued some of the earliest and most influential opinions on the status of aboriginal title in the United States, several of them written by Chief Justice John Marshall himself. However, without exception, the remarks of...
. None of those decisions was cited in either opinion. Dred Scott, in dicta, opined the following on aboriginal title:
The situation of [blacks] was altogether unlike that of the Indian race. The latter . . . were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it.
Justice John Catron
John Catron
John Catron was an American jurist who served as a US Supreme Court justice from 1837 to 1865.-Early life:Little is known of Catron's early life, but he served in the War of 1812 under Andrew Jackson...
, concurring in Dred Scott, also noted in dicta that:
[B]ecause Congress has express power to regulate commerce among the Indian tribes and to prohibit intercourse with the Indians, that therefore Dr. Emerson's title might be defeated within the country ceded by the Indians to the United States as early as 1805 . . . .
Opinion
Justice Samuel NelsonSamuel Nelson
Samuel Nelson was an American attorney and an Justice of the Supreme Court of the United States....
delivered the opinion of the unanimous Court.
Effect of the Treaty
The court observed:
Neither treaty made any provision as to the mode or manner in which the removal of the Indians or surrender of the reservations was to take place. The grantees have assumed that they were authorized to take forcible possession of the two reservations, or of the four, as the case would have been under the first treaty. The plaintiff in this case was expelled by force; and unless this mode of removal can be sustained, the recovery against the defendants for the trespass was right, and must be affirmed.
The court noted that previous removals of Indians
Indian Removal
Indian removal was a nineteenth century policy of the government of the United States to relocate Native American tribes living east of the Mississippi River to lands west of the river...
had been undertaken by the federal government "according to the usage and practice of the Government, by its authority and under its care and superintendence." "[A]ny other mode of a forcible removal," the court argued, would not "be consistent with the peace of the country, or with the duty of the Government to these dependent people, who have been influenced by its counsel and authority to change their habitations."
Because the treaty had been negotiated "with them as a quasi nation, possessing some of the attributes of an independent people, and to be dealt with accordingly," the Court held that "unless otherwise expressly stipulated" only the federal government had the "authority or power" to execute the agreement. The Court remarked that the Senecas were "in a state of pupilage, and hold the relation to the Government as a ward to his guardian." The nature of that relationship between the Seneca and the federal government was incompatible with the Seneca being expelled by "irregular force and violence," or even "through the intervention of the courts of justice." Thus, the court held that the private beneficiaries of Native American treaties could neither expel tribes by force or by a cause of action for ejectment
Ejectment
Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
. The court observed that "this interpretation is in accordance with the usages and practice of the Government in providing for the removal of Indian tribes from their ancient possessions, with the fitness and propriety of the thing itself," and with the text of the treaty.
Validity of the Treaty
However, the Court did not accept the Seneca argument that the treaty was invalid because the Seneca were not represented by the appropriate leaders. Analogizing to the enrolled bill doctrine
Enrolled Bill doctrine
The enrolled bill rule, is a principle of judicial interpretation of rules of procedure in legislative bodies. Under the doctrine, once a bill passes a legislative body and is signed into law, the courts assume that all rules of procedure in the enactment process were properly followed...
(the only citation of case law in the opinion), the Court held that "the treaty, after executed and ratified by the proper authorities of the Government, becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operation."
Conditions Precedent
Because its aforementioned holdings required affirmance, the Court did not reach the alternate ground for decision of the trial court that the appraisal and the payments were conditions precedent
Condition precedent
Condition precedent refers to an event or state of affairs that is required before something else will occur. In contract law, a condition precedent is an event which must occur, unless its non-occurrence is excused, before performance under a contract becomes due, i.e., before any contractual...
(i.e. the Court could have rested its holding on the much narrower ground that the dam and sawmill improvements built by Blacksmith had not been paid for). The Court concluded: "We hold that the performance was not a duty that belonged to the grantees, but for the Government under the treaty."
Companion cases
Lawyer John H. MartindaleJohn H. Martindale
John Henry Martindale was an American lawyer, Union Army general, and politician.-Early life:Martindale was born in Sandy Hill, Washington County, New York, the son of Congressman Henry C. Martindale and Minerva Hitchcock Martindale. He entered the United States Military Academy at West Point in...
, of Verplank & Martindale, also represented Seneca plaintiffs in three other contemporary suits against the Land Company and its grantees: People ex rel. Blacksmith v. Tracy (N.Y. Sup. 1845); People ex rel. Waldron v. Soper (N.Y. 1852); and New York ex rel. Cutler v. Dibble
New York ex rel. Cutler v. Dibble
New York ex rel. Cutler v. Dibble, 62 U.S. 366 , was a companion case to the more well-known Fellows v. Blacksmith . At the time Fellows was decided, this case had reached the U.S...
(U.S. 1858). At the time, Martindale (the future New York Attorney General) was well-known for litigating personal injury
Personal injury
Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. The term is most commonly used to refer to a type of tort lawsuit alleging that the plaintiff's injury has been caused by the negligence of another, but also arises in defamation...
torts against railroads, especially New York Central Railroad
New York Central Railroad
The New York Central Railroad , known simply as the New York Central in its publicity, was a railroad operating in the Northeastern United States...
.
Whereas Fellows was brought in the New York Supreme Court under the common law cause of action of trespass, these three suits were brought (as required by statute) in the Genesee County Court
Genesee County Courthouse
The Genesee County Courthouse is located at the intersection of Main and Ellicott streets in Batavia, New York, United States...
under a state statute prohibiting non-Indians from residing on Indian lands. That statute provided:
[I]t shall be unlawful for any person or persons, other than Indians, to settle or reside upon any lands belonging to or occupied by any nation or tribe of Indians within this state; and that all leases, contracts and agreements made by any Indians, whereby any person or persons, other than Indians, shall be permitted to reside upon such lands, shall be absolutely void; and if any person or persons shall settle or reside on any such lands, contrary to this act, it shall be the duty of any judge of any court of Common Pleas of the countyNew York Court of Common PleasThe New York Court of Common Pleas was a state court in New York. Established in New Netherland in 1686, the Court remained in existence in the Province of New York and, after the American Revolution, in the U.S...
within which such lands shall be situated, on complaint made to him, and on due proof of the fact of such settlement or residence, to issue his warrant, under his hand and seal, directed to the sheriff of such county, commanding him, within ten days after the receipt thereof, to remove such person or persons so settling or residing, with his, her or their families, from such lands.
The statute further provided:
that it shall be the duty of the district attorneyDistrict attorneyIn many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
s respectively of the several counties in this state in which any lands belonging to any Indian tribe shall be situated, (among other things) to make complaintComplaintIn legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
of all intrusions upon Indian lands, forbidden by the act; and from time to time to make inquiries whether any persons other than Indians are settled upon such lands, and to cause them to be removed in the manner therein prescribed.
From 1821—1846, the district attorney would have been appointed; thereafter, the office was elected. Martindale was the district attorney of Genesee County from 1842—1844 and again from 1847—1849. Thus, Martindale himself filed the complaints in People ex rel. Blacksmith v. Tracy and People ex rel. Waldron v. Soper. His successor, Seth Wakeman
Seth Wakeman
Seth Wakeman was a U.S. Representative from New York.Born in Franklin, Vermont, Wakeman attended the common schools.He moved to Batavia, New York, where he studied law....
(1845—1850) filed the complaint in New York ex rel. Cutler v. Dibble. It appears that Martindale was district attorney when the complaint in Tracy was filed, but lost the election, and attempted to litigate the mandamus issue as a private attorney.
The results of the three suits were mixed. Martindale was defeated in the New York Supreme Court
New York Supreme Court
The Supreme Court of the State of New York is the trial-level court of general jurisdiction in thestate court system of New York, United States. There is a supreme court in each of New York State's 62 counties, although some smaller counties share judges with neighboring counties...
and New York Court of Appeals
New York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...
, respectively, in the first two, but had prevailed in the Court of Appeals and, ultimately, the U.S. Supreme Court in the third.
People ex rel. Blacksmith v. Tracy
Martindale (in his final days as district attorney) filed the complaint on January 8, 1845. Evidence, including the testimony of Ely S. ParkerEly S. Parker
Ely Samuel Parker , was a Seneca attorney, engineer, and tribal diplomat. He was commissioned a lieutenant colonel during the American Civil War, when he served as adjutant to General Ulysses S. Grant. He wrote the final draft of the Confederate surrender terms at Appomattox...
, was presented on January 11. Judge Phineas L. Tracy
Phineas L. Tracy
Phineas Lyman Tracy was a U.S. Representative from New York, brother of Albert Haller Tracy.Born in Norwich, Connecticut, Tracy graduated from Yale College in 1806.He engaged in teaching for two years.He studied law....
, of the Genesee County Court (1841—1845), declined to issue a warrant to the Genesee County Sheriff to remove the Ogden grantees.
Still in January, Martindale applied to the Supreme Court for mandamus, and the court issued an alternative mandamus (essentially, an order to show cause
Order to show cause
An order to show cause, in most Anglo-Saxon law systems, is a type of court order that requires one or more of the parties to a case to justify, explain, or prove something to the court. Courts commonly use orders to show cause when the judge needs more information before deciding whether or not to...
why preremptory mandamus should not issue) on March 6, 1845, which was served
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
March 25. On April 19, the deadline was extended to the first Tuesday in June. Before the Supreme Court, Martindale was joined by New York Attorney General John Van Buren
John Van Buren
John Van Buren was an American lawyer and politician.-Life:He was the second son of President Martin Van Buren and graduated from Yale College in 1828. In 1831, when his father was appointed U.S. Minister to Britain, he accompanied him as secretary of the American Legation in London...
and opposed by A. Taber and J. L. Brown.
That June, Judge Jewett granted Tracy's motion to quash, without costs. The court held that only the district attorney
District attorney
In many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...
could bring such an action to enforce the statute:
I am of opinion that by the terms and spirit of the statute under which this proceeding has been had, no other than the district attorney of the county of Genesee (in which the lands intruded upon are situated) could regularly be a relatorRelator (law)-Qui Tam action:A Qui Tam Action may be brought by any party against an entity that is fraudulently collecting money from the United States government by filing false claims. The party bringing the suit -- the relator -- must have possession of information substantiating the claim of fraud against...
. The remedy for the act complained of is provided by the statute, as well as the officers to carry it into execution. It is made the duty of the district attorney to make complaint of all intrusions upon Indian lands forbidden by the act, and from time to time to make inquiries whether any persons other than Indians are settled upon such lands, and to cause them to be removed in the manner therein prescribed. Without the act, John Blacksmith or any other person could not claim such summary proceedingsSummary (law)Summary, in law, forms many compounds as an adjective meaning "short, concise":*Summary abatement, the abatement of a nuisance without judicial proceeding, even without notice or hearing, often by a destruction of the offending thing or structure...
to remove intruders upon Indian lands; and with the act, no other person is authorized by its provisions to make complaint of such intrusions, or to cause the intruders to be removed, but the district attorney of the county in which the lands are situated.
The court also found the affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
of Parker to be insufficient as a factual matter to comply with the terms of the statute. However, even if the district attorney had brought the action and the affidavit had been sufficient, the Supreme Court still would have denied mandamus as a matter of law.
People ex rel. Waldron v. Soper
In the second suit, Martindale (re-elected as district attorney) filed the complaint under the same statute on January 3, 1849. Judge Horace U. Soper, of the Genesee County Court (1847—1850), granted the writ of removal on January 9, 1849. The New York Supreme Court General Term (Judges Mullet, Sill, and Marvin), sitting in Buffalo, New YorkBuffalo, New York
Buffalo is the second most populous city in the state of New York, after New York City. Located in Western New York on the eastern shores of Lake Erie and at the head of the Niagara River across from Fort Erie, Ontario, Buffalo is the seat of Erie County and the principal city of the...
, granted a writ of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
, and affirmed in March 1849. "Waldron" is the only party subject to the writ of removal named in the Court of Appeals opinion (the only reported opinion) and only by last name.
The Court of Appeals reversed and annulled the writ in October 1852. Judge John Worth Edmonds, for a unanimous court, gave two reasons. First, it held that the court had no power to proceed against the majority of the defendants because they were not properly summoned and caused to appear
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
. Second, with respect to defendant Waldron (who had voluntarily appeared), the court held that "it does not appear that these lands were owned by the Indians."
New York ex rel. Cutler v. Dibble
In a third suit, Martindale's successor as district attorney, Seth WakemanSeth Wakeman
Seth Wakeman was a U.S. Representative from New York.Born in Franklin, Vermont, Wakeman attended the common schools.He moved to Batavia, New York, where he studied law....
(1845—1850), filed a complaint against Asa Cutler, John Underhill, and Arza Underhill (grantees of the Land Company) under the same statute, on February 19, 1853. Thomas Black, a Seneca who had made and apparently been compensated for some improvements, allegedly consented to the Underhills presence. Judge Edgar C. Dibble, of the Genesee County Court (1846, 1851—1854) and a one-time partner of Martindale, granted the writ of removal. The Supreme Court granted certiorari and affirmed on September 4, 1854, holding that "the Seneca nation had not duly granted and conveyed the reserve in question to Ogden and Fellows." The judgement of the Supreme Court was delivered by Judge Marvin, joined by judges Bowen and Green; Judge Mullet dissented without opinion.
The Court of Appeals—after the second argument—also affirmed in September 1857. The majority opinion was authored by Judge Brown, joined by Judges Comstock, Paige, Shankland, and Bowen; The Court of Appeals held that the state statute did not violate the New York Constitution and that a jury trial was not required because the defendants had no property right. In closing, the Court of Appeals cited the U.S. Supreme Court's recent decision in Fellows. Chief Judge Hiram Denio
Hiram Denio
Hiram Denio was an American lawyer and politician from New York...
, joined by Judge Alexander S. Johnson
Alexander S. Johnson
Alexander Smith Johnson was an American lawyer and politician from New York...
, concurred on the constitutionality of the 1821 state statute, but dissented on the grounds that the treaties extinguished the aboriginal title, and thus the state statute either did not apply or violated the treaty. Judge Selden recused.
By the time Fellows was decided, Dibble had reached the U.S. Supreme Court but had not yet been argued. The Court eventually affirmed in 1858, holding that the state statute did not violate the Indian Commerce Clause, the federal Nonintercourse Act, or the treaty.
Enrolled treaty doctrine
The key claim advanced by lawyer John H. MartindaleJohn H. Martindale
John Henry Martindale was an American lawyer, Union Army general, and politician.-Early life:Martindale was born in Sandy Hill, Washington County, New York, the son of Congressman Henry C. Martindale and Minerva Hitchcock Martindale. He entered the United States Military Academy at West Point in...
in all four cases had been that the Treaty of Buffalo Creek
Treaty of Buffalo Creek
-1788:The Treaty of Buffalo Creek should not be confused with the Phelps and Gorham Purchase of lands east of the Genesee River in New York, which occurred at Buffalo Creek on July 8, 1788...
(1838) was invalid because it was not signed by the right Seneca leaders, and the signatures it did contain were obtained by coercion or fraud. This argument had not prevailed before the New York Courts or the Supreme Court. As Brown notes:
The principal point, however, on which the counsel relied, and which he hoped to establish, was that the Tonawandas were not bound by the Treaties, because the chiefs there protested against and refused to sign them. To this point his main argument has always, in all stages of the litigation been addressed, and he has pressed it upon the consideration of the Courts, with the utmost pertinacity. It was, however, decided against him in the Blacksmith case, argued last Winter at Washington and has never been decided in his favor by any Court.
Fellows has been cited approvingly as a source of the enrolled treaty doctrine in cases denying relief to Native American tribes for treaty-based claims.
Seneca land claims
Thus, according to Armstrong, the result of the decision was mixed:The decision was not all that the Indians had hoped for—it was a victory on narrow legal grounds rather than a vindication of their cause—but it was a victory. The Court's ruling meant that as long as the federal government was determined to take no action to remove them from Tonawanda, the Ogden CompanyHolland Land CompanyThe Holland Land Company was a purchaser of the western two-thirds of the western New York land tract known as the Phelps and Gorham Purchase. This tract was known thereafter as The Holland Purchase...
was powerless to do so.
The Tonawanda Seneca were never relocated to Kansas, and a new 1857 treaty confirmed their title to a 7,549-acre reservation. This treaty ended 15 years of litigation between the Tonawanda Band and the Ogden Land Company.
The Seneca, again represented by Martindale, prevailed in New York ex rel. Cutler v. Dibble
New York ex rel. Cutler v. Dibble
New York ex rel. Cutler v. Dibble, 62 U.S. 366 , was a companion case to the more well-known Fellows v. Blacksmith . At the time Fellows was decided, this case had reached the U.S...
(1858). Seneca Nation of Indians v. Christy
Seneca Nation of Indians v. Christy
Seneca Nation of Indians v. Christy, 162 U.S. 283 , was the first litigation of aboriginal title in the United States by a tribal plaintiff in the Supreme Court of the United States since Cherokee Nation v. Georgia , and the first such litigation by an indigenous plaintiff since Fellows v....
(1896) also involved a Seneca plaintiff represented by a Civil War general. There, the plaintiffs challenged the Phelps and Gorham Purchase
Phelps and Gorham Purchase
The Phelps and Gorham Purchase was the purchase in 1788 of the pre-emptive right to some 6,000,000 acres of land in western New York State for $1,000,000 . This was all land in western New York west of Seneca Lake between Lake Ontario and the Pennsylvania border...
under the Nonintercourse Act. Fellows was not cited. In 1899, the U.S. Supreme Court upheld a $1,967,056 judgment of the Court of Claims (pursuant to an enabling statute) against the federal government based on the 1838 treaty. Fellows was cited by Oneida I
Oneida Indian Nation of N.Y. State v. Oneida County
Oneida Indian Nation of N.Y. State v. Oneida Cnty., 414 U.S. 661 , is a landmark decision concerning aboriginal title in the United States...
(1974) for the proposition that "the possessory right claimed is a federal right to the lands at issue in this case."
The litigants
Plaintiff Ely S. ParkerEly S. Parker
Ely Samuel Parker , was a Seneca attorney, engineer, and tribal diplomat. He was commissioned a lieutenant colonel during the American Civil War, when he served as adjutant to General Ulysses S. Grant. He wrote the final draft of the Confederate surrender terms at Appomattox...
went on to become a member of General Ulysses S. Grant
Ulysses S. Grant
Ulysses S. Grant was the 18th President of the United States as well as military commander during the Civil War and post-war Reconstruction periods. Under Grant's command, the Union Army defeated the Confederate military and ended the Confederate States of America...
's staff during the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
, drawing up the terms of the surrender at Appomattox Court House. After the war, President Grant appointed Parker as Commissioner of Indian Affairs, the first indigenous head of the Bureau of Indian Affairs
Bureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
. According to his New York Times obituary, Parker "negotiated the removal of his tribe from this State to the fertile and pleasant lands on Green Bay, Wisconsin
Green Bay, Wisconsin
Green Bay is a city in and the county seat of Brown County in the U.S. state of Wisconsin, located at the head of Green Bay, a sub-basin of Lake Michigan, at the mouth of the Fox River. It has an elevation of above sea level and is located north of Milwaukee. As of the 2010 United States Census,...
."
The Seneca's lawyer, John H. Martindale
John H. Martindale
John Henry Martindale was an American lawyer, Union Army general, and politician.-Early life:Martindale was born in Sandy Hill, Washington County, New York, the son of Congressman Henry C. Martindale and Minerva Hitchcock Martindale. He entered the United States Military Academy at West Point in...
, later appeared before the U.S. Supreme Court, as New York Attorney General, in In re New York Indians (1866), arguing that the state had the right to tax the Senecas. The Court disagreed.
External links
- Text at: Justia
- History of the case from the Holland Land Office Museum