Deere v. State of New York

• Decision Date: 10 October 1927
• Citation: 22 F.2d 851
• Parties: DEERE et al. v. STATE OF NEW YORK et al.
• Court: U.S. District Court — Northern District of New York

22 F.2d 851 (1927)

DEERE et al. v. STATE OF NEW YORK et al.

District Court, N. D. New York.

October 10, 1927.

Wise, Whitney & Parker, of New York City, and Edward A. Everett, of Potsdam, N. Y. (Henry A. Wise, Jennings C. Wise, and Carl E. Whitney, all of New York City, of counsel), for plaintiff.

L. P. & H. C. Hale, of Canton, N. Y. (Charles E. Hughes, of New York City, and Ledyard P. Hale, of Canton, N. Y., of counsel), for defendants.

Albert Ottinger, Atty. Gen., and Henry S. Manley, Dep. Atty. Gen., for State of New York.

COOPER, District Judge.

This is an action in ejectment. The defendants move to dismiss the complaint on these grounds:

(1) That the federal court has no jurisdiction, because there is no diversity of citizenship.

(2) That the plaintiff has no legal capacity to sue.

(3) That the federal court has no jurisdiction, because the complaint states no cause of action arising under the Constitution, laws, or treaties of the United States.

(4) That the court has no jurisdiction of the subject of the action.

(5) That the complaint does not state facts sufficient to constitute a cause of action.

The complaint alleges that the plaintiff is a member of the St. Regis Tribe of Indians, and brings this suit on behalf of himself and all other Indians of that tribe; that the St. Regis Tribe of Indians is a branch of the Mohawk Nation, one of the Six Nations of the Iroquois Confederacy; that the lands from which the plaintiff seeks to eject the defendants are a part of the lands reserved to the Six Nations of the Iroquois Confederacy, under treaty between the United States and the Six Nations, made on October 22, 1784 (7 Stat. 15), and were more specifically reserved in the treaty between the Seven Nations of Canada, the United States of America, and the state of New York, made May 31, 1796 (7 Stat. 55); that in the last-mentioned treaty lands in St. Lawrence and Franklin counties, in the state of New York, were reserved for the use of the St. Regis Indians, and included in such lands was a certain tract, one mile square, situated on both sides of the Grass river, adjoining a mill built by the Indians on the Grass river, and extending substantially from the said mill to the confluence of the Grass and St. Lawrence rivers. The lands involved in this action are a part of the said one mile square.

The complaint also alleges that the said one mile square, as well as the other land reserved for the said St. Regis Tribe of Indians, were reserved to and occupied by them in their tribal capacity and that the said lands, excepting the one mile square, are still occupied by the said St. Regis Tribe of Indians in their tribal capacity, but that the defendants are in possession of part of the one mile square involved in this action, and withhold possession from said tribe; that said possession is unlawful; that the said tribe is lawfully entitled to the possession thereof, and possession is demanded, together with damages for detention of such lands.

The complaint further alleges, in paragraphs 13 to 16, inclusive, that on March 16, 1824, an alleged treaty was made by certain Indians, purporting to represent said tribe, and the state of New York, by which the interest of the Indians in said one mile square was conveyed and relinquished to the state of New York, and subsequently by the state granted by letters patent to the predecessors of the defendants, and that defendants hold thereunder; that such treaty was in violation of the Constitution and laws of the United States, and was and is void and of no effect; that the Indians purporting to represent the tribe were not authorized to do so.

On the ground that there is no diversity of citizenship, the decision must be with the defendants. The complaint alleges that the plaintiff resides in the Northern district of New York, and it does not appear but that all the defendants also reside in the state of New York and Northern district of New York. Indeed, there is a specific allegation that all the corporate defendants are incorporated under the laws of the state of New York, including a municipal corporation, which is a subdivision of the county of St. Lawrence, of the state of New York, and that all the defendants can be found within the state.

Clearly there is no diversity of citizenship. In order to make such diversity, it must appear from the face of the complaint that plaintiff and defendants are citizens of different states, or, in other words, it must appear that the plaintiff is a citizen and resident of a state other than New York, where defendants reside. Brown v. Keene, 8 Pet. 112, 8 L. Ed. 885; Gassies v. Ballon, 6 Pet. 761, 8 L. Ed. 573; Williamson v. Osenton, 232 U. S. 619, 34 S. Ct. 442, 58 L. Ed. 758.

In Hepburn v. Ellzey, 2 Cranch, 445, 2 L. Ed. 332, the Supreme Court, in an opinion by Chief Justice Marshall, held that a citizen of the District of Columbia could not maintain a suit in the federal court of Virginia against a citizen of Virginia upon the ground of diversity of citizenship since a citizen of the District of Columbia was not a citizen of any state. See, also, Stein v. Fleischmann (D. C.) 237 F. 679.

An Indian, becoming a citizen of the United States and residing in a state, is held to be a citizen of that state. Boyd v. Nebraska, 143 U. S. 135-162, 12 S. Ct. 375, 36 L. Ed. 103. Matter of Heff, 197 U. S. 448, 25 S. Ct. 506, 49 L. Ed. 848. The latter case was overruled by U. S. v. Nice, 241 U. S. 591, 36 S. Ct. 696, 60 L. Ed. 1192, but on another point.

Plaintiff does not urge diversity of citizenship as the basis of jurisdiction, however, and the lack thereof does not defeat the plaintiff, if his complaint presents a question arising under the Constitution, laws, or treaties of the United States, and if the plaintiff has legal capacity to sue.

Coming next to the plaintiff's legal capacity to sue, it appears that the earlier decisions in the state of New York held that the Indians did have such legal capacity. See Strong v. Waterman, 11 Paige (N. Y.) 607-612. The court said:

"Indians cannot therefore institute a suit in the name of the tribe; but they must sue in the same manner as other citizens would be required or authorized to sue, for the protection of similar rights. And as individuals composing the Seneca Nation of Indians, and residing on and entitled to their several reservations, are too numerous to join in this suit by name, the bill is properly filed by these complainants in behalf of themselves and the residue of the nation residing upon their reservations. * * * The parties are therefore properly before the court, and the complainants are entitled to retain this preliminary injunction."

In that case the suit was in equity to prevent trespass, and not an action in ejectment. The later decisions of the state courts, however, are to the contrary.

In Johnson v. Long Island Railroad Company, 162 N. Y. 462, 56 N. E. 992, which was an action in ejectment, it was held in substance that neither the tribe nor an individual member thereof could appear in court in their or his own right, but possessed only such rights to appear and litigate in the courts of justice as are conferred on them by statute; and in the case of the Onondaga Nation v. Thacher, 169 N. Y. 584, 62 N. E. 1098; which was not an action in ejectment, the Court of Appeals affirmed the judgment of the lower courts "upon the ground that neither the Onondaga Nation, nor the individual Indians named as plaintiffs, had legal capacity to bring and maintain the action."

In the federal courts there are cases holding inferentially that an Indian living in the tribal relation, and not a citizen of the United States, cannot maintain an action in the federal courts.

In Felix v. Patrick, 145 U. S. 317-332, 12 S. Ct. 862, 867 (36 L. Ed. 719), which was not an action in ejectment, it was said upon the question of the laches of the Indian plaintiff:

"It is scarcely necessary to say in this connection that, while until this time they were not citizens of the United States," and unable to sue "as such in the federal courts, the courts of Nebraska were open to them, as they are to all persons irrespective of race or color."

But it is to be observed that in that case the plaintiff was a citizen of the United States, and the question whether or not a noncitizen Indian could maintain an action in federal court was not before the court for decision.

There are also cases in which actions have been brought and maintained in the federal court by Indians, who in some cases were and in some cases were not citizens of the United States, although the question of citizenship was not passed on, and usually not referred to, by the court. Such are the cases of Lone Wolf v. Hitchcock, 187 U. S. 553, 23 S. Ct. 216, 47 L. Ed. 299; Gritts v. Fisher, 224 U. S. 640, 32 S. Ct. 580, 56 L. Ed. 928; Sizemore v. Brady, 235 U. S. 441, 35 S. Ct. 135, 59 L. Ed. 308; Chase v. U. S., 256 U. S. 1, 41 S. Ct. 417, 65 L. Ed. 801; Taylor v. Anderson, 234 U. S. 74, 34 S. Ct. 724, 58 L. Ed. 1218 — none of which was an ejectment action, except Taylor v. Anderson.

Kansas Indians, 72 U. S. (5 Wall.) 737, 18 L. Ed. 667, has no application here, as that case originated in the Kansas state courts, and never was in the federal District Court.

But since the enactment of the Act of June 2, 1924 (8 USCA § 3), making citizens of all Indians, there would seem to be little doubt that an Indian citizen may maintain an action in the federal courts. Such is the necessary inference from the above quotation in Felix v. Patrick, supra. Such is a reasonable inference from the other cases cited.

In the case of Lane v. Pueblo of Santa Rosa, 249 U. S. 110, 39 S. Ct. 185, 63 L. Ed. 504, the question was raised as to legal capacity of the Indian town of the Pueblo of Santa Rosa to sue. The court held that the town was by statute a body corporate, with power to sue. The suit was in equity and related to tribal lands. The...