People of the State of New York On the Relation of Walter Kennedy v. Frederick Becker
| Decision Date | 12 June 1916 |
| Docket Number | No. 666,666 |
| Parties | PEOPLE OF THE STATE OF NEW YORK ON THE RELATION OF WALTER S. KENNEDY, as Next Friend of Fayette Kennedy, Warren Kennedy, and Willis White, Jr., Plffs. in Err., v. FREDERICK W. BECKER, as Sheriff of Erie County, New York |
| Court | U.S. Supreme Court |
Mr. George P. Decker, Assistant Attorney General Warren, and Mr. W. W. Dyar for plaintiffs in error.
[Argument of Counsel from page 557 intentionally omitted] Messrs. Herbert B. Lee, Blaine F. Sturgis, A. Frank Jenks, and Mr. E. E. Woodbury, Attorney General of New York, for defendant in error.
[Argument of Counsel from page 558 intentionally omitted] Mr. Chief Justice White delivered the opinion of the court, after reading the following memorandum:
This opinion, by direction of the court, had been prepared by Mr. Justice Hughes, and was approved before his resignation. After that event, it was again considered, and was re-adopted.
Fayette Kennedy, Warren Kennedy, and Willis White, Jr., three Seneca Indians, residing on the Cattaraugus Reservation, under the charge of an Indian agent of the United States, were arrested for spearing fish in Eighteen Mile creek, in Erie county, state of New York, at a place outside the Reservation, and there having certain fish in their possession, in violation of § 176 of the conservation law of that state. A justice of the peace committed them to the custody of the sheriff, and a writ of habeas corpus was sued out upon the ground that the commitment was invalid. It was alleged that the persons arrested were tribal Indians, as above stated, and that the place where the offense was committed was within the territory included in 'certain grants . . . under sanction of the United States of America, whereby . . . the right was reserved to the said Indians to fish in the waters on and in said lands.' The supreme court, at special term, discharged the petitioners, holding that the ancient grants, agreements, and the treaties mentioned, and particularly the treaty made between the Seneca Nation of Indians and Robert Morris, in the year 1797, permitted these Indians to fish in the waters in question 'at will, and at all seasons of the year, regardless of the provisions of the game laws of the state of New York.' The appellate division of the supreme court, fourth department, reversed the order, and remanded the three Indians to custody (165 App. Div. 881, 151 N. Y. Supp. 138); and the order of the appellate division was affirmed by the court of appeals. The court entertained the Federal question presented, and decided that the state law, notwithstanding the treaty, was applicable. 215 N. Y. 42, 109 N. E. 116.
Section 176 of the conservation law of New York prohibits the taking of fish, or having the same in possession, except as permitted by the article of which it is a part. The validity of these provisions with respect to those subject to the jurisdiction of the state is not questioned. The controversy relates solely to the state power over these Indians.
The argument for the plaintiffs in error has taken a wide range, and embraces an extended history of the dealings with the Six Nations. We do not find it to be necessary to review this interesting history, as the question to be determined is a narrow one. The locus in quo is within the state of New York, being within 1 mile from the point where Eighteen Mile creek empties into Lake Erie. It is not within the territorial limits of the Indian Reservation on which the Senecas reside. It is within the territory which was ceded by the Seneca Nation to Robert Morris by the treaty of the 'Big Tree,' of September 15, 1797 (7 Stat. at L. 601), and the question turns upon the construction of this treaty; that is, on the consequences which attached to the reservation therein of fishing and hunting rights upon the lands then granted. These lands were a part of the tract covered by the compact made in 1786 between the state of New York and the commonwealth of Massachusetts, known as the Hartford convention. (Journals of Congress, vol. 4, p. 787.) By the terms of this compact for the settlement of existing controversies, Massachusetts ceded, granted, and released to New York all its 'claim, right, and title' to the 'government, sovereignty, and jurisdiction' of the lands, while New York ceded, granted, and released to Massachusetts 'the right of pre-emption of the soil from the native Indians, and all other the estate, right, title, and property' which the state of New York had. Subsequently Massachusetts sold to Robert Morris its 'pre-emptive right.' By § 12 of the Federal Indian intercourse act of May 19, 1796 (1 Stat. at L. 469, 472, chap. 30), it was provided that no conveyance of lands 'from any Indian, or nation or tribe of Indians,' should be valid unless 'the same be made by treaty or convention, entered into pursuant to the Constitution;' and this was subject to a proviso as to the proposal and adjustment of compensation by state agents in the presence and with the approval of commissioners of the United States. The lands in question were accordingly conveyed to Robert Morris by the treaty above mentioned. From the preamble (as shown by the original on file in the State Department, a copy of which has been produced by the government) it appears that the conveyance was made under the authority of the United States, and in the presence of the United States commissioner, and the treaty was proclaimed by the President after ratification by the Senate on April 11, 1798. The convention is in the form of an indenture by which (identifying the tract as being part of that embraced in tne Hartford convention) these lands were granted by the sachems, chiefs, and warriors of the Seneca Nation to Robert Morris, ...
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