Patterson v. Council of Seneca Nation

• Citation: 157 N.E. 734,245 N.Y. 433
• Parties: PATTERSON v. COUNCIL OF SENECA NATION.
• Decision Date: 20 July 1927
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 433

157 N.E. 734

PATTERSON

v.COUNCIL OF SENECA NATION.

Court of Appeals of New York.

July 20, 1927.

Mandamus by Robert E. Patterson to compel the Council of the Seneca Nation of American Indians, consisting of William C. Hoag, president, and others, to enroll petitioner as a member of the Seneca Nation. From an order of the Appellate Division (219 App. Div. 857, 221 N. Y. S. 874), affirming an order of Special Term (128 Misc. Rep. 392, 219 N. Y. S. 587), granting an alternative order, the Council of the Seneca Nation of American Indians appealed by leave of the Appellate Division, which certified a question.

Order reversed, and mandamus denied.

Question answered.

Appeal from Supreme Court, Appellate Division, Fourth Department.

George P. Decker, of Rochester, for appellants.

John L. Heider, of Buffalo, for respondent.

KELLOGG, J.

The question to be determined is whether an alternative order of mandamus, issued out of the Supreme Court of the state of New York to the council of the Seneca Nation of American Indians, requiring it to enroll the petitioner as a member of the Seneca Nation and to accord him all personal and property rights of a member of such Nation, was within the jurisdiction of the court so issuing it.

The petition alleges that the petitioner is of full age; that he resides on the Cattaraugus Indian Reservation, in Erie county, N. Y.; that he is the son of Nathaniel C. Patterson, deceased, a duly enrolled member of the Seneca Nation; that his mother is a white woman; that his parents were duly married; that after their marriage they lived togehter on the Cattaraugus Reservation; that the petitioner has frequently demanded of the Council of the Seneca Nation that he be enrolled as a member; that the request has been refused; that the United States Commissioner of Indian Affairs, has refused to enroll him; that the pretended reason for the refusal has been that there is a custom among the Senecas that only a person born of a mother who was duly enrolled as a Seneca Indian may himself be enrolled; that the petitioner's mother was not so enrolled; that in fact there is no such custom; that any and every custom of the Senecas has been superseded by the laws of the state of New York; that the Seneca Nation, on December 4, 1948, amended their existing form of government, their laws, customs, and usages; that they then petitioned the state of New York to provide them with laws; that they adopted a new Constitution and prayed the state and the United States to approve the same; that such Constitution was subsequently approved by the two governments; that, pursuant to the request of the Senecas, the state of New York enacted various laws for the government of such nation; that such laws are now embodied in the Consolidated Laws, known as the Indian Law (Consol. Laws, c. 26); that membership in the Seneca Nation is valuable in that the governments of the United States and the state of New York set aside moneys for use by members of the tribe; and that membership gives the right to vote and to participate in the community property of the Senecas. Annexed to the petition is a copy of the Constitution of the Seneca Nation of Indians alleged to have been adopted on the 4th of December, 1848. In opposition to the petition, the president of the Seneca Nation filed an affidavit wherein it is asserted that under the immemorial customs and usages of the Nation, property has always descended through the mother; that these customs and usages still persist; that they were not abolished by the new Constitution or by the laws of the state of New York; that the Seneca Nation itself may alone determine who is a Seneca Indian entitled to enrollment. Appended to the affidavit is a document entitled ‘Amended Constitution of the Seneca Nation of Indians of 1898.’ Upon these papers the Supreme Court, at Special Term, made an order requiring the Council of the Seneca Nation of American Indians to enroll the petitioner as a member of such Nation; to pay him his share of annuities as a member; to permit him to participate as a voter in elections held by the Nation; to accord to him his property rights as a member thereof; to show cause why the order should not be obeyed; and to file a return thereto within 20 days. The order was affirmed by the Appellate Division, which granted leave to appeal to this court and certified, to be answered by it, the following question:

‘Has the Supreme Court of the state of New York jurisdiction of this proceeding?’

The status of an Indian tribe which has retained its tribal integrity has been variously described. In Cherokee Nation v. Georgia, 5 Pet. 1, 8 L. Ed. 25, it was said by Marshall, C. J., that the argument that the Cherokee Nation was a ‘distinct political society, separated from others, capable of managing its own affairs and governing itself’ was approved by the majority of the court. He further said of the various Indian tribes:

‘They may, more correctly, perhaps, be denominated domestic dependent nations.’

In Worcester v. Georgia, 6 Pet. 515, 8 L. Ed. 483, the same Chief Justice, in speaking of the relation created by a treaty between the United States and the Cherokee Nation, said:

‘This relation was that of a nation claiming and receiving the protection of one more powerful, not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.’

In Seneca Nation of Indians v. Appleby, 196 N. Y. 318, 89 N. E. 835, this court, through Cullen, C. J., in reference to the Indians said:

‘They are not citizens of the state and their tribes, though not treated as independent foreign nations, are not subject to the jurisdiction of the state to the same extent as its citizens.’

In People ex rel. Cusick v. Daly, 212 N. Y. 183, 105 N. E. 1048, Ann. Cas. 1915D, 367, this court, through Werner, J., said:

‘The Indians, although native sons of our soil, are not citizens either of the nation or state. They are heralded as the wards of the nation, and in their collective or tribal capacity they have been relegated to the status of foreign nations with whom the federal government has entered into treaty relations.’

In Mulkins v. Snow, 232 N. Y. 47, 133 N. E. 123, this court, through Pound, J., said:

‘The lands in question are held by the Seneca Indians as a distinct although a dependent nation, by conquest from other aboriginal tribes.’

Again it said:

‘The Seneca Nation of Indians is a quasi foreign nation and its reservation is quasi extraterritorial.’

Unless these expressions, as well as similar expressions many times used by many courts in various jurisdictions, are mere words of flattery designed to soothe Indian sensibilities, unless the last vestige of separate national life has been withdrawn from the Indian tribes by encroaching state legislation, then, surely, it must follow that the Seneca Nation of Indians has retained for itself that prerequisite to their self-preservation and integrity as a nation, the right to determine by whom its membership shall be constituted.

Not only have the various courts of the Union frequently declared the Indian tribes to be distinct and separate nations, but they have frequently held that the usages and customs of these nations, rather than the laws of the state within the borders of which they dwell, govern the relations of members of the nations among themselves. In Worcester v. Georgia, supra, it was held that the state of Georgia was powerless to extend its criminal and civil laws over the Cherokee Tribes. In Kansas Indians, 5 Wall. 737, 18 L. Ed. 667, it was said by Davis, J., that as long as the United States recognizes the national character of the Indian tribes, they are under the protection of treaties and the laws of Congress, ‘and their property is withdrawn from the operation of state laws.’ In Dole v. Irish, 2 Barb. 639, it was held that the private property of the Seneca Indians was not within the jurisdiction of the state of New York for purposes of administration; that letters of administration granted by a county surrogate upon the estate of a dead Indian were void. The court said:

‘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.’

In Hastings v. Farmer, 4 N. Y. 293, it was said of the Onondaga Indian:

‘He is governed by the laws and usages of his tribe, and is only subject to our laws, so far as the public safety requires.’

These two New York cases are cited with approval by the United States Supreme Court in Jones v. Meehan, 175 U. S. 1, 20 S. Ct. 1, 44 L. Ed. 49. In United States v. Kagama, 118 U. S. 375, 6 S. Ct. 1109, 30 L. Ed. 228, the court said of Indian tribes:

‘They owe no allegiance to the States, and receive from them no protection.’

Commenting upon the case of Worcester v. Georgia, supra, the court said that it was there held that the Indians ‘could not be subjected to the laws of the state, and the process of its courts.’ In Jones v. Meehan, supra, it was said in regard to a certain Indian chief that since he was a member of an Indian tribe, whose tribal organization was still recognized by the United States, ‘the right of inheritance in his land, at the time of his death, was controlled by the laws, usages and customs of the tribe, and not by the law of the state of Minnesota.’ In so holding the court cited, among others, the cases of Brown v. Steele, 23 Kan. 672, in which the opinion was written by Mr. Justice Brewer, and United States ex rel. Davis v. Shanks, 15 Minn. 369 (Gil. 302). In United States v. Quiver, 241 U. S. 602, 36 S. Ct. 699, 60 L. Ed. 1196, it was said that at an early period it became the settled policy of Congress to permit the ‘personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their...