New York ex rel. Cutler v. Dibble
Encyclopedia
New York ex rel. Cutler v. Dibble, 62 U.S. (21 How.) 366 (1858), was a companion case to the more well-known Fellows v. Blacksmith
(1857). At the time Fellows was decided, this case had reached the U.S. Supreme Court but had not yet been argued.
Members of the Seneca tribe had obtained a writ from the New York courts, under New York's state nonintercourse act, expelling the Ogden Land Company and their grantees. The defendants, before the Court, unsuccessfully challenged the state statute under the Indian Commerce Clause of the United States Constitution
, the federal Nonintercourse Act and the Treaty of Buffalo Creek
between the federal government and the Senecas. Because the Senecas relied on state law, and the defendants relied on federal law, the case is essentially the inverse of the litigation of aboriginal title in the United States
over the next 150 years.
(1838) provided for the removal
of the Senecas to modern-day Kansas
, with their land to pass to the Ogden Land Company. The Tonawanda Band of Seneca Indians
on the Tonawanda Reservation
condemned the treaty, arguing that no sachem
from their Band had signed. Prominent Seneca Ely S. Parker
had retained lawyer John H. Martindale
, who had brought four lawsuits against the Ogden Land Company and their grantees. The first two failed in the New York Supreme Court
and New York Court of Appeals
, respectively. The third, Fellows v. Blacksmith
(1857), prevailed in the Court of Appeals and U.S. Supreme Court. In the fourth, New York ex rel. Cutler v. Dibble, a divided Court of Appeals had sided with the Seneca and the U.S. Supreme Court had agreed to hear the case at the time Fellows was decided.
brought suit on behalf of the Senecas against Asa Cutler, John Underhill, and Arza Underhill under a March 31, 1821 New York statute prohibiting non-Indians from settling or residing on lands belonging to or occupied by Indians. The statute provided that the county court should issue a warrant directing the sheriff to remove such persons: Specifically, the statute provided:
The defendants claimed title from the Treaty of Buffalo creek and requested a jury trial
. The county court sided with the Seneca and the proceedings were removed to the New York Supreme Court by certiorari
.
The New York Supreme Court
heard voluminous testimony and evidence, and held that "the Seneca nation had not duly granted and conveyed the reserve in question to Ogden and Fellows," but the U.S. Supreme Court did not reach this question, noting that it was not "material to our inquiry."
The New York Court of Appeals
affirmed, holding that the 1821 New York statute did not violate the New York Constitution, and thus that the defendants had not acquired any property rights entitling them to a jury trial.
The U.S. Supreme Court granted a writ of error.
Justice Robert Cooper Grier
delivered the opinion of the unanimous Court, affirming the judgement of the New York Court of appeals, with costs. The Court limited itself to examining whether the state statute and proceedings had violated any federal law, whether the Indian Commerce Clause of the United States Constitution, the federal Nonintercourse Act or the Treaty of Buffalo Creek
between the federal government and the Senecas.
Federal constitution
The Court held that the state statute was a constitutional exercise of the state's police power
:
Federal statute
The Court also held that the state statute did not violate any federal statute because "no law of Congress can be found which authorizes white men to intrude on the possessions of Indians."
Federal treaty
Finally, the Court held that the state statute did not violate the treaty because, pursuant to the Court's prior holding in Fellows v. Blacksmith
(1856), the Seneca's removal was enforceable only by, and at the discretion of the federal government:
The Court reiterated the importance of the trust relationship between the federal government and the tribes from the Fellows precedent (the only case law cited in the opinion):
Fellows v. Blacksmith
Fellows v. Blacksmith, 60 U.S. 366 , 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...
(1857). At the time Fellows was decided, this case had reached the U.S. Supreme Court but had not yet been argued.
Members of the Seneca tribe had obtained a writ from the New York courts, under New York's state nonintercourse act, expelling the Ogden Land Company and their grantees. The defendants, before the Court, unsuccessfully challenged the state statute under the Indian Commerce Clause of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, the federal Nonintercourse Act and 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...
between the federal government and the Senecas. Because the Senecas relied on state law, and the defendants relied on federal law, the case is essentially the inverse of the litigation of aboriginal title in the United States
Aboriginal title in the United States
The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title...
over the next 150 years.
Background
The Treaty of Buffalo CreekTreaty 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) provided for the 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...
of the Senecas to modern-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...
, with their land to pass to the Ogden Land Company. 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...
on 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...
condemned the treaty, arguing that no 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...
from their Band had signed. Prominent Seneca 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...
had retained 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...
, who had brought four lawsuits against the Ogden Land Company and their grantees. The first two failed 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. The third, Fellows v. Blacksmith
Fellows v. Blacksmith
Fellows v. Blacksmith, 60 U.S. 366 , 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...
(1857), prevailed in the Court of Appeals and U.S. Supreme Court. In the fourth, New York ex rel. Cutler v. Dibble, a divided Court of Appeals had sided with the Seneca and the U.S. Supreme Court had agreed to hear the case at the time Fellows was decided.
Prior history
The district attorney of Genesee County, New YorkGenesee 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 :...
brought suit on behalf of the Senecas against Asa Cutler, John Underhill, and Arza Underhill under a March 31, 1821 New York statute prohibiting non-Indians from settling or residing on lands belonging to or occupied by Indians. The statute provided that the county court should issue a warrant directing the sheriff to remove such persons: Specifically, the 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 county 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 defendants claimed title from the Treaty of Buffalo creek and requested a jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
. The county court sided with the Seneca and the proceedings were removed to the New York Supreme Court by 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...
.
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...
heard voluminous testimony and evidence, and held that "the Seneca nation had not duly granted and conveyed the reserve in question to Ogden and Fellows," but the U.S. Supreme Court did not reach this question, noting that it was not "material to our inquiry."
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...
affirmed, holding that the 1821 New York statute did not violate the New York Constitution, and thus that the defendants had not acquired any property rights entitling them to a jury trial.
The U.S. Supreme Court granted a writ of error.
Opinion
Robert Cooper Grier
Robert Cooper Grier , was an American jurist who served on the Supreme Court of the United States.-Early life, education, and career:...
delivered the opinion of the unanimous Court, affirming the judgement of the New York Court of appeals, with costs. The Court limited itself to examining whether the state statute and proceedings had violated any federal law, whether the Indian Commerce Clause of the United States Constitution, the federal Nonintercourse Act or 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...
between the federal government and the Senecas.
Federal constitution
The Court held that the state statute was a constitutional exercise of the state's police power
Police power
In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...
:
The statute in question is a police regulation for the protection of the Indians from intrusion of the white people, and to preserve the peace. It is the dictate of a prudent and just policy. Notwithstanding the peculiar relation which these Indian nations hold to the Government of the United States, the State of New York had the power of a sovereign over their persons and property, so far as it was necessary to preserve the peace of the Commonwealth, and protect these feeble and helpless bands from imposition and intrusion. The power of a State to make such regulations to preserve the peace of the community is absolute, and has never been surrendered. The act is therefore not contrary to the Constitution of the United States.
Federal statute
The Court also held that the state statute did not violate any federal statute because "no law of Congress can be found which authorizes white men to intrude on the possessions of Indians."
Federal treaty
Finally, the Court held that the state statute did not violate the treaty because, pursuant to the Court's prior holding in Fellows v. Blacksmith
Fellows v. Blacksmith
Fellows v. Blacksmith, 60 U.S. 366 , 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...
(1856), the Seneca's removal was enforceable only by, and at the discretion of the federal government:
If the treaty of 1842 had been executed; if the United States, in their character of sovereign guardian of this nation, had delivered up the possession to these purchasers, then this statute of New York, when applied to them, would clearly be in conflict with their rights acquired under the treaty. But, by the case, it is admitted that the Indians have not been removed by the United States. The Tonawanda band is in peaceable possession of its reserve, and has hitherto refused to surrender it. Unless, therefore, these persons claiming under Ogden and Fellows have by the treaty a right of entry into these lands, and, as a consequence, to forcibly oust the possessors or turn them out by action of ejectment, they cannot allege that this summary removal by authority of the statute of New York is in conflict with the treaty, or any rights secured to the purchasers under it. This proceeding does not affect their title. The question of the validity of this treaty to bind the Tonawanda band is one to be decided, not by the courts, but by the political power which acted for and with the Indians. So far as the statute of New York is concerned, it only requires that the Indians be in possession; they are not bound to show that they are owners. They may invoke the aid of the statute against all white intruders, so long as they remain in the peaceable possession of their lands.
The Court reiterated the importance of the trust relationship between the federal government and the tribes from the Fellows precedent (the only case law cited in the opinion):
The Indians are to be removed to their new homes by their guardians, the United States, and cannot be expelled by irregular force or violence of the individuals who claim to have purchased their lands, nor even by the intervention of the courts of justice. Until such removal and surrender of possession by the intervention of the Government of the United States, the Indians and their possessions are protected, by the laws of New York, from the intrusion of their white neighbors.