127 Mass. 278 | Mass. | 1879
By the St. of 1869, e. 463, all Indians within the Commonwealth were declared to be citizens, entitled to the rights and subject to the duties of other citizens of the Commonwealth. Previously to that statute, they were the wards of the Commonwealth, and the title to the lands occupied by the several tribes was in the Commonwealth, and its use and improvement were regulated from time to time by the Legislature. Danzell v. Webquish, 108 Mass. 133, 134. See also St. 1862, e. 184.
In thus enfranchising the Indians and conferring on them the -rights of citizens, it was not the intention of the Legislature to
In pursuance of the policy, established by the St. of 1869, the district of Marshpee was incorporated as a town by the name of Mashpee, and all common lands and other rights, belonging to the district, were transferred to the new town to be held as property and rights are held by other towns. St. 1870, o. 293, §§ 1, 2. By this act, the division of common lands in Mashpee is not to be made in the Probate Court, as provided in the Sts. of 1869, c. 463, and 1870, e. 213, incorporating the town of Gay Head, but upon application by the selectmen to any justice of the Superior Court, who, after hearing all parties interested, may appoint commissioners to make partition of “ any or all of the common lands of said town, or of the people heretofore known as the Marshpee tribe of Indians; ” or he may direct that the same or any part be sold, and the proceeds paid over to the treasurer of the town. § 6. Although this section does not in terms state among whom these lands are to be divided, yet it is clear that the division is to be made among the Indians inhabiting the territory, whose rights are more clearly defined and
There is no constitutional objection to any of these provisions. The tenure by which these lands were held was peculiar. In bestowing the privileges of citizenship upon these wards of the Commonwealth, and giving a title in fee simple to all lands held by them in severalty under existing provisions of law, it was not only a proper but a wise exercise of power for the Legislature to frame provisions by which common lands belonging to the town or the tribe, and the proceeds of the sale of such lands, should be divided.
The Legislature could impose any reasonable qualifications or restrictions upon the privileges and powers conferred by the statute, either upon the town or upon the people known as the Marshpee tribe of Indians.
Nor can we hold that the proceedings instituted in 1870, by the selectmen of Mashpee, which were pending in the Superior Court when this petition was filed, have judicially determined all questions which the selectmen of Mashpee can bring to the attention of a justice of the Superior Court. In that case, commissioners were appointed to divide, and did divide, all the common lands in Mashpee except meadow and hay lands. The justice of the Superior Court to whom an application is made, may determine whether it is for the interest of all parties to sell or divide all or any part of the common lands. He may thus designate a part only to be sold, as was done in that case by the Chief Justice of the Superior Court; and we may fairly infer from his decision that, at that time, it was for the interest of the parties that the meadow and hay lands should not then be sold. But circumstances may change; the statute does not in terms restrict the selectmen to one application; and, as a large discretion is lodged in the justice to whom application is made, we are of opinion that it was the intention of the statute to provide a
We can have no question, therefore, of the right of the select men to apply now for a division of the meadow and hay lands, or of the power of a justice of the Superior Court to entertain such an application.
The objection that this petition does not ask for a partition, as well as for a sale, is no reason for dismissing it, as an amendment may be made if necessary. ' The entry must therefore be that the petition Stand for trial.