United States v. Waldow
| Decision Date | 12 November 1923 |
| Docket Number | 2357. |
| Citation | 294 F. 111 |
| Parties | UNITED STATES ex rel. PIERCE et al. v. WALDOW, Sheriff. |
| Court | U.S. District Court — Western District of New York |
Decker & Menzie, of Rochester, N.Y., and William J. Donovan, U.S Atty., of Buffalo, N.Y., for relators.
Carl Sherman, Atty. Gen., of New York (Michael J. Montesano, Sp Deputy Atty. Gen., of counsel), for respondent.
The return of the sheriff substantially shows that one Patterson a Seneca Indian of full blood, residing on the Cattaraugus Indian reservation, in this district, died possessed of houses and lands situate on the reservation. His widow, who is a white woman, and to whom he was married in July, 1899 by a justice of the peace of Perrysburg, and several children, his heirs at law and next of kin, survive him. He left a last will and testament, naming Alice Patterson executrix, which was admitted to probate by the surrogate of Erie county, and letters testamentary granted. Thereupon a Seneca Indian named Sylvester J. Pierce began suit in the Peacemakers' Court of the Cattaraugus Indian reservation, alleging that Patterson's widow and children were not members of the Seneca Nation, and were not entitled to inherit the real estate of the deceased under certain tribal customs, and letters of administration were issued to him under tribal custom. The executrix appeared in the Peacemakers' Court and objected to the jurisdiction, but the Peacemakers held otherwise and decreed that the lands of the deceased be surrendered to Ely S. Pierce and Sylvester J. Pierce after the removal of the growing crops, and that the widow be allowed the use of 2 1/2 acres of land until April, 1923, following, at which time she was required to vacate the same. It is stated in argument that by rights of the ancient confederacy of the Iroquois adopted by the Seneca Nation and custom that Seneca Indians only who were born of tribal women could comprise membership in the tribe and that a widow of a Seneca Indian and half-breed children were considered white persons, and were incapable of taking title to lands left by a deceased Seneca Indian, either by will or inheritance.
The Supreme Court of this state, on application of the executrix, granted an alternative writ of prohibition and its three Peacemakers were required to show cause why the writ should not be made absolute and they be enjoined from taking further steps to enforce their decree. On the return day counsel appeared for the Peacemakers and requested a continuance, but later they defaulted and the writ absolute was issued by the late Justice Marcus, and thereafter, upon showing that the Peacemakers' Court disobeyed the writ, the reservation marshal, who, under their authority, threatened to carry out the decree of dispossession, and Pierce, one of the claimants, were held in contempt and committed to the Erie county jail until they paid the costs and expenses of the prohibition proceeding. In execution of the commitment the sheriff of Erie county arrested both the reservation marshal and Pierce while they were temporarily in the federal building at Buffalo, invoking as wards of the nation the aid and protection of the United States attorney, but upon their apprehension they immediately applied to this court for a writ of habeas corpus which was granted by consent of the parties, and the Indians were released from arrest pending examination by this court of their legal rights. A hearing has now been had on the return and issues presented.
The immediate point suggested by the Attorney General of this state, who appeared for the sheriff of Erie county and in vindication of the process, is that the writ be dismissed for lack of jurisdiction, and the relators left to their remedy in the state court, that court being competent to determine the alleged illegality of the restraint. This suggestion would be adopted by me, if it were not that existing circumstances are of such an unusual character that I feel confident that the mere issuance of the writ will not be regarded as an inappropriate interference with the authority of the state court, especially as Indians primarily are wards of the nation, and when restrained of their liberties by state process, a discretionary right exists, growing out of the relationship, to inquire into the cause thereof and to discharge them if the evidence so warrants.
In behalf of the relators it is pleaded that they have no money to bear the costs and expenses of proceedings for their protection in the state courts; that they are wholly unable to give the bonds required on appeal; and furthermore, that by treaty relations (Ft. Stanwix) in force between the Seneca Nation and the government they are assured of the protection of the federal courts. These considerations, then, have persuaded me that it would not be improper for me to examine into the merits of the proceeding without requiring the relators to continue seeking their liberty by appeal to review Judge Marcus' decision in the state court. I have heretofore, in U.S. v. Hamilton (D.C.) 233 F. 685, allowed a writ of habeas corpus on the application of an Indian under arrest for violation of the conservation laws of the state of New York (fishing in streams running through the Indian reservation) without objection to the jurisdiction by the Attorney General, and which in principle I think was different from the case at bar. See In re Blackbird (D.C.) 109 F. 139; U.S. ex rel. Standing Bear v. Crook, 25 Fed.Cas. 695, Case No. 14,891, where the right of Indians to a writ of habeas corpus by federal courts was recognized for relief from arrest on state process for violation of United States laws or of a treaty made in pursuance thereof.
Of course, the writ of habeas corpus cannot be made use of as a writ of error, and sight should not be lost of the fact that a state court of original jurisdiction which has the parties before it may enforce and protect rights secured by the Constitution and the laws in pursuance thereof. Robb v. Connolly, 111 U.S. 637, 4 Sup.Ct. 544, 28 L.Ed. 542; Ex parte Royall, 117 U.S. 248, 6 Sup.Ct. 734, 29 L.Ed. 868; Eaton v. West Virginia, 91 F. 760, 34 C.C.A. 68. Inasmuch as questions frequently arise in this jurisdiction from the possession and occupancy by Indians of lands on the various reservations, I prefer to examine the merits of the present controversy rather than to relegate the relators back to the state court, without giving heed to their plea that in view of their pupilage their rights should be determined in this court. My decision, however, must of course be based upon legal principles as announced in prior adjudications.
The paramount question, after all, is whether the Seneca Indians, remnants of the once powerful Six Nations, residing on the Cattaraugus reservation, are in fact, as they claim, outside of the geographical limits of the sovereignty of New York. There are numerous decisions in the courts of this state wherein the right of occupancy and possession and legal status of the Seneca Indians are ably and exhaustively discussed. In all of them it has been unequivocally held that, notwithstanding their pupilage and disabilities arising therefrom, the sovereignty of the state of New York attaches to their lands comprised within its boundaries, Seneca Nation of Indians v. Christie, 126 N.Y. 122, 27 N.E. 275; and to direct their affairs, Hatch v. Luckman, 155 A.D. 765, 118 N.Y.Supp. 689, 140 N.Y.Supp. 1123; and widow may bring action to enforce judgment of Peacemakers' Court, Jimeson v. Pierce, 78 A.D. 9, 79 N.Y.Supp. 3; and that power to legislate for Indians must yield to paramount authority of federal government, People ex rel. Cusick v. Daly, 212 N.Y. 183, 105 N.E. 1048, Ann. Cas. 1915D, 367. That both the federal and state governments at various times in the past made treaties with the Indians is unquestionable, though the paramount authority of the federal government over them is generally conceded, but the government has frequently recognized the right of the state to deal with Indians within its boundary.
In Benson v. U.S. (C.C.) 44 F. 178, Judge Wallace, in speaking of the right of this state to exercise sovereignty over tribal Indians, said that since 1858 New York has always exercised its sovereign powers within the reservation, and that in New York v. Dibble, 21 How. 366, 16 L.Ed 149, the Supreme Court of the United States decided that it has a right so to do, 'so far as necessary to...
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