Joseph Fellows, Survivor of Robert Kendle, Plaintiff In Error v. Susan Blacksmith and Ely Parker, Administrators of John Blacksmith, Deceased

• Decision Date: 01 December 1856
• Citation: 60 U.S. 366,19 How. 366,15 L.Ed. 684
• Parties: JOSEPH FELLOWS, SURVIVOR OF ROBERT KENDLE, PLAINTIFF IN ERROR, v. SUSAN BLACKSMITH AND ELY S. PARKER, ADMINISTRATORS OF JOHN BLACKSMITH, DECEASED
• Court: U.S. Supreme Court

60 U.S. 366

19 How. 366

15 L.Ed. 684

JOSEPH FELLOWS, SURVIVOR OF ROBERT KENDLE, PLAINTIFF IN ERROR, v. SUSAN BLACKSMITH AND ELY S. PARKER, ADMINISTRATORS

OF JOHN BLACKSMITH, DECEASED.

December Term, 1856

THIS case was brought up from the Supreme Court of the State of New York, by a writ of error issued under the 25th section of the judiciary act.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. Gillet and Mr. Brown for the plaintiff in error, and by Mr. Martindale for the defendants.

Mr. Justice NELSON delivered the opinion of the court.

This is a writ of error to the Supreme Court of the State of New York. The case was decided by the Court of Appeals of that State; but the record had been remitted, after the decision to the Supreme Court, from which the appeal had been taken.

The suit in the Supreme Court was an action of trespass, quare clausum fregit, brought by the intestate, John Blacksmith, against the defendants, Joseph Fellows and Robert Kendle, for entering, with force and arms, into the close of the plaintiff, commonly known as an Indian sawmill and yard, at the town of Pembroke, county of Genesee, and then and there having expelled and dispossessed the said plaintiff.

The defendants plead, 1st, not guilty; and 2d, that the said close, &c., was the soil and freehold of the defendant, Fellows, and that the defendant, Fellows, in his own right, and the defendant, Kendle, as his servant, and by his command, broke and entered the said close, &c., as they lawfully might, for the cause aforesaid. To this plea there was a replication, averring that the close, soil, and freehold, was not the close of the defendant, Fellows.

On the trial, it was proved by the plaintiff that the close mentioned in the declaration is situate in the town of Pembroke, county of Genesee, upon a tract of land of twelve thousand eight hundred acres, commonly known as the Tonawanda reservation, and was, at the time of the entry complained of, an Indian improvement upon the same; that said improvement was made about twenty years before the treaty, by the plaintiff and seven other Tonawanda Indians; that the plaintiff is a native Indian, belonging to the Tonawanda band of the Seneca Indians, who reside on that reservation, and are a part of the Seneca Nation, and has so been known for at least thirty-six years; that he has resided on this reservation from his birth, and was in the actual possession of the said improvement at the time of the entry complained of; that on the 13th July, 1846, the defendants entered into and took possession of the said close, and turned the plaintiff out, and in doing so committed the trespass. It was admitted, that a treaty had been made between the United States and the Six Nations of Indians on the 11th November, 1794, by which certain lands in western New York, including this Tonawanda reservation, are declared 'to be the property of the Seneca Nation; and the United States will never claim the same, nor disturb the Seneca Nation, nor any of the Six Nations, or their Indian friends residing thereon, and united with them in the free use and enjoyment thereof; but it shall remain theirs until they choose to sell the same to the people of the United States, who have the right to purchase.'

The plaintiff then rested.

The defendants gave in evidence certain documents and acts of the Legislatures of the States of New York and Massachusetts, showing that a dispute had arisen, at an early day, between the two States, in respect to the title to a large tract of land within the limits of New York, of which the locus in quo is a part. That in 1786, the dispute was amicably settled by a cession from Massachusetts to New York of the sovereignty and jurisdiction over the tract, and by a cession from New York to Massachusetts of the right of pre-emption to the soil from the Indians.

The lands were then in the independent occupancy of the Seneca Nation, and owned by them, and that Massachusetts acquired by the cession the exclusive right of purchasing their title whenever they became disposed to sell; that this right had become duly vested in Thomas L. Ogden and Joseph Fellows, by proper conveyances from Massachusetts, which survived to the latter on the death of Ogden.

A treaty was then given in evidence, between the United States and the New York Indians, bearing date 15th January, 1838, and another between the United States and the Seneca Nation, bearing date the 20th May, 1842, under which the defendant claims that he had acquired the Indian title to the close in question, and by virtue of which it is admitted the defence to the action in this case rests.

The treaty of 1838 (7 U. S. Stat., 551) set apart a tract of country, situated west of the State of Missouri, as a permanent home for all the New York Indians, containing one million eight hundred and twenty-four acres of land, being, as is expressed in the treaty, 'three hundred and twenty acres for each soul of said Indians, as their numbers are at present computed.' The tract is particularly described and located. It was intended for the future home of nine tribes of Indians, containing, according to the official estimate, a population of five thousand four hundred and eighty-five. The Seneca tribe, including among them their friends, the Onondagas and Cayugas, numbers a population of two thousand six hundred and thirty-three.

By the tenth section of this treaty, special provision was made concerning this tribe and their friends already mentioned. They were to have assigned to them the easterly part of the tract set apart to the New York Indians, and to extend so far as to include one half section of land for each soul. The tribe agrees to remove from New York to their new home within five years, and continue to reside there. The section then recites the purchase of the title of the Seneca Nation to certain lands described in a deed of conveyance by Ogden and Fellows, assignees of the State of Massachusetts, for the consideration of $202,000, and also that the Nation has agreed that said money shall be paid to the United States, and that out of this sum $102,000 shall be paid to the owners of the improvements on the land so conveyed, the residue to be invested in stocks by the Government, the income of which is to be paid annually to the Nation at their new homes. The...