108 Mass. 133 | Mass. | 1871
The remnants of the Indian tribes, residing within the limits of the Commonwealth, having never been recognized by any treaties or executive or legislative acts of the government of the United States as independent political communities, were under the control of the legislature of the state. Worcester v. Georgia, 6 Pet. 515, 580, 590, 593. United States v. Holliday, 3 Wallace, 407, 419. The Kansas Indians, 5 Wallace, 737. United States v. Yellow Sun, 1 Dillon, 271. By the law of Massachusetts, until very recently, these Indians were not subjected to taxation, nor endowed with the ordinary civil and political rights of citizens, but were treated as the wards of the Commonwealth ; the title in the lands occupied by their tribes was in the state, and could not be alienated by them without the consent of the legislature ; and the use and improvement thereof by the Indians was regulated by the legislature from time to time at its discretion, all the earlier allotments being limited to short terms. Sts. 1788, c. 38; 1789, c. 52; 1796, c. 23 ; 1807, c. 109 ; 1809, c. 70 ; 1811, c. 78; 1818, c. 105. Gen. Sts. c. 11, § 5, el. 12; c. 14, § 48 ; c. 36, §§ 5, 6; c. 141, §§ 15-19. Andover v. Canton, 13 Mass. 547. Thaxter v. Grinnell, 2 Met. 13. Mayhew v. Gray Head, 13 Allen, 129. Jaha v. Belleg, 105 Mass. 208. Clark v. Williams, 19 Pick. 499. Johnson v. McIntosh, 8 Wheat. 543. Jackson v. Goodell, 20 Johns. 188, 693. Strong v. Waterman, 11 Paige, 607.
By recent legislation, the Indians of the Commonwealth have been fully enfranchised from the subjection in which they Lad heretofore been kept, and put upon the same footing as other citizens, and provision made for the division of their lands among them in severalty as their absolute property. Sts. 1869, c. 463; 1870, cc. 213, 293, 350.
By the St. of 1869, c. 463, § 1, “ all Indians, and people of color, heretofore known and called Indians, within this Common, wealth, are hereby made and declared to be citizens of the Commonwealth, and entitled to all the rights, privileges and immunities, and subject to the duties and liabilities, to which citizens oí
Section 3 of the same act (under which the present case arises) confers jurisdiction upon the judge of probate of this county to make partition of the lands held in common belonging to the Herring Pond tribe of Indians, but lays down no rule for ascertaining who should be deemed proprietors of these lands and entitled as such to share in the division. In seeking for such a rule, our attention has been directed to the earlier statutes upon the same subject, the material provisions of which it may be convenient to state.
The St. of 1789, o. 52, concerning the plantation of Marshpee in the county of Barnstable, after reciting that many of the Indian, mulatto and negro inhabitants, occupying lands within the plantation, had no other title to the same but what they derived from grants or assignments made to them by the original proprietors ; and that it was necessary clearly to ascertain who are the proprietors of said plantation ; enacted, in § 3, that the overseers or guardians of the plantation should “ make out a fair record of all the names of the proprietors of said plantation who usually resida within the same; and in all cases where the title of proprietorship shall appear doubtful, the guardian or guardians shall examine into the same, and if they find the claim of such Indian mulatto or negro, either by descent, marriage or otherwise, well founded (the overseers confirming the same) his name shall be entered on said record, and such Indian, mulatto or negro shall be considered as a proprietor of said plantation to all intents and purposes; ” and in § 4, that “ those who are not proprietors in their own rights or in the right of their wives, or who shall not be admitted as proprietors by the overseers, guardian or guardians in manner aforesaid, shall not be deemed or reputed inhabitants of said plantation.”
The earliest statutes which provided for allotments in fee, out of the common lands in Marshpee, to the Indian proprietors, included none but “ the legal adult proprietors of Marshpee, male and female,” and “ any minors who may be the descendants or children of a deceased proprietor or proprietors,” counting among such lineal descendants “ every person of Indian descent, who was bom in said Marshpee, or within the counties of Barnstable or Plymouth, and who had resided, or whose parents or ancestors had resided, in Marshpee for twenty years or upwards ” previously to the passage of the first of those statutes; required the commissioners to give public notice and hold meetings in such manner as should “ enable the inhabitants of said district, claiming to be proprietors, or the descendants or children of deceased proprietors, to present their claims to be recorded and to be fully heard thereon; ” and declared that “ no person shall ever become a proprietor of said district, by operation of law, unless he be a lineal descendant of a proprietor; and upon the death of any proprietor without such descendant, all his interest in the lands of the district shall escheat to the proprietary; provided, however, that any proprietor of lands in severalty may devise or otherwise convey the same to any other proprietor.” Sts. 1834, c. 166, and especially §§ 4, 9; 1842, c. 72, and especially § 3; 1844, c. 130.
Ho evidence of custom, usage or general acquiescence has been introduced; and no countenance is given by any of the statutes to the proposition, ( upon which the claims of the appellants are based,) that children, who were not born and never resided upon the Indian lands, whose father is not shown to have been a member of the tribe or to have ever resided there, and whose mother, although a proprietor of the lands and born thereon, is still living, and resides with her husband and children elsewhere, are to be deemed themselves proprietors of the lands or entitled to share in the division thereof under the St. of 1869, <?. 463, § 3.
Decree affirmed.