Dole v. Irish, 2 Barb. 639

Dole v. Irish

2 Barb. 639 | N.Y. Sup. Ct. | 1848

By the Court, Mullett, J.

Whatever may have been the relations between the Europeans and the native indians, growing out of the discovery of this country by the former, and the uncivilized condition of the latter, the relations between the English of New-York and the Six Nations have been established by convention for more than one hundred and twenty years; Judge Smith, the able historian of the colony of New-York, informs us that in the year 1726, at a meeting of the chiefs of the Six Nations at Albany, Governor Burnett procured from them a deed surrendering their country to his majesty the king of Great Britain, to be protected for their use; and that this was but a confirmation of a verbal grant made in 1721, and which was entered in the book of the secretary of Indian affairs. The account of the transaction shows that this protection was solicited by the indians. The chief who addressed Governor Burnett said: “ We speak now in the name of all the Six Nations, and come to you howling. This is the reason why we howl, that the governor of Canada encroaches on our land, builds thereon.” Although the relations thus established may not be different from those claimed by the Europeans without treaty, yet this deed settles the question between the state of New-York and these indians. Both parties derive rights and duties from the relation thus acknowledged. The indians are *642no longer to be regarded as mere allies. They have a right to our protection, and we owe it to them as a duty. From these rights and duties, from the dependence of the Indians on us, and their location within our territory, spring our rights of sovereignty and legislation over them, and their duty of fidelity, submission and obedience to us. Still, our intercourse with them has been in their national capacity. We have regarded them as nations having some sovereign power, and have permitted them to exercise that power over their own internal affairs. We have not attempted to extend our laws to their domestic relations, or to regulate the manner of their acquiring, holding or conveying property among themselves. We have never applied our doctrines of descent or distribution to their property, nor subjected them to our laws relating to wills, intestacy or administration ; nor are they applicable to their state of society. So far from interfering with their pecuniary affairs, or subjecting their persons or property to the civil jurisdiction of our courts, we have declared that no action shall be maintained against one of these Indians, on his contract. (Act of April 10, 1813.)

If our laws have no jurisdiction over their property, our surrogates have no power to grant letters of administration upon it. Considering the weak and fast diminishing power of the Indians, it may become our duty to extend our legislation over them and their property. The 4th section of the act of 1843, to enable non-resident aliens to hold and convey real estate, is one bold step towards taking the Indians under the protection of our laws. Farther exercise of jurisdiction may still be necessary, until all vestiges of indian power and indian rights shall be brought under the broad shield of our civil jurisprudence—but when, and how, it shall become necessary or proper to seize on this dilapidated indian sovereignty, are questions to be decided by the legislature; and it does not become the judiciary, voluntarily, to march forward in such enterprises. I am of the opinion that the private property of the Seneca Indians is not within the jurisdiction of our laws respecting administration; and that the letters of administration granted by the surrogate to the plain*643tiff are void. I am also of the opinion that the distribution of Indian property according to their customs passes a good title, which our courts will not disturb; and therefore that the defendant has a good title to the horse in question, and must have judgment on the special verdict,

Judgment for the defendant.