Opinion
Argued March 5, 1959
Decided July 8, 1959
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, EDGAR F. HAZELTON, J.
Arthur Karger and Morris Permut for appellants. John P. Cohalan, Jr., District Attorney ( David DuVivier of counsel), for respondents.
In a proceeding instituted by the District Attorney of Suffolk County pursuant to section 8 of the Indian Law, the County Court of Suffolk County adjudged that appellants were intruders upon lands comprising part of the Shinnecock Indian Reservation in Southampton, Long Island. The court directed the issuance of a warrant for their removal and delineated the boundaries of the "lands owned and occupied by the Shinnecock Tribe of Indians and affected by this determination".
The proceeding involved a 9-acre triangular parcel fronting on the southerly side of Montauk Highway. Appellants claimed title to this land and were in the process of erecting houses for the purpose of settling and residing thereon. In order to determine whether or not appellants were intruding upon Indian land, it was necessary for the County Court to consider chapter 46 of the Laws of 1859, and two deeds executed in accordance with that enactment.
Pursuant to the statute and deeds, all land north of "an established and well defined" line running along an Indian ditch was granted by the Trustees of the Shinnecock Tribe to the Trustees of the Town of Southampton, and all land south of that line was granted by the latter to the former. The dividing boundary line was described as "commencing at the head of the creek on the east side of said [Shinnecock] Neck, and running along the Indian ditch, where the fence now stands, to the Stephen Post meadow, so called; thence along the old ditch on the south side of the said meadow to old Fort Pond, where the water fence formerly stood." (L. 1859, ch. 46, § 1; emphasis supplied.)
Appellants' claimed source of title to the disputed parcel stemmed from a deed to a large tract, recorded in 1861, from the town trustees to appellants' predecessors in title. The parties stipulated that that deed conveyed 3,200 acres and included "the land lying immediately to the north of the Indian Ditch". The issue, as framed by the County Court, was: "Where was the old Indian Ditch mentioned in the legislation of 1859 located when the above conveyances were exchanged?" Petitioner sought to prove that the ditch ran completely along the southerly shoulder of an old sand road that is now Montauk Highway. Appellants, on the other hand, contended that the old Indian ditch started at an easterly point along Montauk Highway and then veered off at an angle in a southwesterly direction until it reached a point some 340 feet south of the highway. A total of 24 witnesses testified, and a mass of documentary evidence was introduced.
The trial court resolved the disputed issue of fact in favor of petitioner. It found that the Indian ditch referred to in the 1859 statute and deeds ran along the southerly line of the old sand road and had been obliterated by the modernizing of Montauk Highway. The ditch which appellants claimed was the "Indian ditch" was found "to be just another ditch with which the reservation is lined in several places". After a lengthy colloquy, the court also denied appellants' motion made at the very end of the case to dismiss the complaint on the ground that the court lacked jurisdiction of the subject matter of the proceeding.
Appellants urge on this appeal that "Section 8 confers a limited jurisdiction upon the County Court to award summary relief in certain special circumstances; i.e., where there is no dispute as to the Indian Tribe's ownership or right of possession as respects the particular land". Appellants contend further that where alleged intruders enter upon lands under color of title, and the evidence discloses a substantial dispute on the issue of ownership, the remedy provided by section 8 may not be invoked without violating their constitutional right to a trial by jury.
The constitutionality of the predecessor of section 8 (L. 1821, ch. 204) was upheld by this court and by the Supreme Court of the United States in People ex rel. Cutler v. Dibble ( 16 N.Y. 203, affd. 62 U.S. 366). The Dibble case involved two treaties entered into in 1838 and 1842 between the United States Government and the Seneca Indian Nation. In these treaties, as outlined by the Supreme Court in Fellows v. Blacksmith ( 60 U.S. 366), the Seneca Nation conveyed four reservations in western New York to two white persons named Ogden and Fellows, pursuant to certain terms and conditions — which included a determination by arbitrators of the amount to be paid, the apportionment thereof, and the filing of the arbitrators' report with the Department of War. The Seneca Nation agreed to remove to a new residence in the West within five years, with the financial aid of the United States Government. Neither treaty, however, made any provision as to the manner in which the Indians were to surrender possession.
The Fellows case involved an action of trespass against the grantees, who had forcibly taken possession of the Tonawanda Reservation, one of the four conveyed. The Supreme Court held (60 U.S., supra, p. 372) that "the grantees derived no power, under the treaty, to dispossess by force these Indians, or right of entry, so as to sustain an ejectment in a court of law; that no private remedy of this nature was contemplated by the treaty, and that a forcible removal must be made, if made at all, under the direction of the United States".
In the Dibble case ( supra), the defendants, who claimed title through Ogden and Fellows, entered into possession of the Tonawanda Reservation, and a proceeding was brought by the District Attorney, under the predecessor of section 8, to remove them as intruders. Although the statute, by its terms, did not then require it, defendants were notified of the institution of the proceeding. They appeared before the County Judge and challenged his jurisdiction "on the ground that they had entered and occupied the lands, claiming title under a written instrument adversely to the Seneca nation of Indians, and therefore, by the Constitution and laws of the State, they were entitled to a trial by jury, according to the course of the common law, and could not thus be removed by summary proceedings under this act." ( 62 U.S., p. 369.) This plea, which is identical to the one now being pressed by appellants, was overruled by the County Judge. The defendants then pleaded, on the merits, that title to the land and hence the right of possession was in them through the treaty conveyance to Ogden and Fellows.
This court held (16 N.Y., supra, p. 216): "The case of Blacksmith v. Fellows is decisive * * * against the claim of [defendants] to enter upon and occupy the lands at present" (emphasis supplied), and emphasized (pp. 215-216) that "it nowhere appears, nor was it pretended" that the conditions precedent to defendants' right of entry — the making and filing of the arbitration award — had occurred. Judge BROWN, writing for the majority, made it clear at the outset of his opinion ( 16 N Y, p. 211) — "I decline to consider whether Ogden and Fellows obtained a good title to the lands known as the Tonawanda reservation, under the grant to them, and the treaties of January 15, 1838, and of May 20, 1842; because I think the rights of the relators to occupy the lands in controversy may be disposed of upon other grounds." (Emphasis supplied.) Since only the United States Government had the right, under the treaties, to remove the Indians from their reservation, the defendants were ordered removed as intruders, regardless of the fact that they may have had good title to the lands.
In upholding the constitutionality of the statute, this court wrote, in part (16 N.Y., supra, pp. 213-214): "This right of summary removal is indispensably necessary to the protection of its [the State's] own property, and to enable the state to fulfill its duties and obligations to the remnants of the Indian tribes within its borders, who are too feeble and helpless to protect themselves. It is under no constitutional or other obligation to wait the judicial determination of the courts to remove intruders from what are indisputably the ungranted lands of the state, or the reservations of the Indian tribes. The moment the intrusion is made out, and the nature of the territory intruded upon appears, there is nothing to be tried, and nothing for the courts to determine, in respect to the right of occupancy and possession. Besides, the order of removal adjudicates upon no claim, and determines no right or title, but leaves the party removed to the usual remedies to assert and establish any title to the locus in quo which he may deem himself to possess." It will be noted that the last sentence referred to the order of adjudication in that case, which determined no title only because the court did not find it necessary to pass upon title.
Unlike the 1821 statute involved in the Dibble case ( supra), present section 8 requires the County Court to "issue a notice directed to the person against whom complaint is made" to appear and answer, and it is only after "proof of the personal service of such notice" that it is authorized to "take proof of the facts alleged in the complaint" (see, in this connection, Chief Judge DENIO'S discussion in the Dibble case, 16 N.Y., pp. 218-220). Section 8 then commands the court to "determine whether such person is an intruder upon the lands of such reservation", and in order to do so it obviously must determine whether the land is in fact part of an Indian reservation. The court's jurisdiction to issue the warrant in the instant case depended upon whether the disputed parcel was Indian land, and it is settled beyond cavil that a court has jurisdiction to determine the facts upon which its jurisdiction depends ( Matter of United States of Mexico v. Schmuck, 294 N.Y. 265, 271-273; Consumers Lbr. Co. v. Lincoln, 225 App. Div. 484, 485; Stoll v. Gottlieb, 305 U.S. 165, 171-172; United States v. Mine Workers, 330 U.S. 258, 289-295; 21 C.J.S., Courts, § 113). Furthermore, where a County Court is vested by statute with jurisdiction over a special proceeding, it has the same power in and over the proceeding as the Supreme Court (Civ. Prac. Act, § 69), including the jurisdiction to decide questions of title to real property ( Matter of Yaras [ City of Albany], 283 App. Div. 214, 218, affd. 308 N.Y. 864).
This court declined to pass upon the issue of title in the Dibble case ( supra), not because it felt powerless to decide the issue but because it was not dispositive of the controversy. The court did in fact construe the far more solemn documents, the treaties, to determine whether defendants were intruders, just as the court here construed the description in the 1859 statute and deeds to determine the same issue. Appellants had a full dress trial on the issue of ownership, and their contention that the court was obliged to dismiss the proceeding as soon as the evidence showed a genuine dispute as to title to the parcel is untenable.
As to the alleged constitutional right to a jury trial on the issue of title, we do not reach the merits of this claim, as appellants are estopped by their conduct from asserting it. At the very outset of the trial, it clearly appeared — by stipulation — that the principal issue in the case was a dispute as to ownership. Thereafter, upon the court's own inquiry, the defense attorney assured the court that his clients had no objection to the procedure pursued by the District Attorney. The court pointed out that it did not "want to waste a lot of time and money taking proof, and then have a question of jurisdiction or a procedural question raised", and the defense attorney replied: "There is no question on that score on behalf of my defendants."
While it is well settled that parties may not by their consent confer jurisdiction over the subject matter on a court ( Meyers v. American Locomotive Co., 201 N.Y. 163, 166; Shea v. Export S.S. Corp., 253 N.Y. 17, 21), the right to a trial by jury is a personal right which must be timely asserted. Since appellants consented to have the issue of ownership tried by a court of competent jurisdiction and participated actively on the merits, they cannot now be heard to complain ( Baird v. Mayor, 74 N.Y. 382; Security Discount Associates v. Weissbaum, 283 App. Div. 920).
The error in the proceedings below, which requires a reversal, lies in the decision of the Appellate Division. The court specified in its order that it was affirming the order of the County Court "upon the opinion and decision slip of the court herein". In its opinion, the Appellate Division, relying upon the Dibble case ( supra), held: "The order [removing appellants as intruders] does not determine right or title in the land. It leaves the parties who are removed from the land in question to the usual remedies to assert and establish any title to the land which they deem themselves to possess".
The order of the trial court, however, from each and every part of which appellants appealed, not only squarely adjudged that the disputed parcel was part of the Shinnecock Indian Reservation, but went so far as to describe, by degrees, minutes and seconds, the boundaries of the lands " owned and occupied by the Shinnecock Tribe of Indians and affected by this determination" (emphasis supplied). By isolating the language used in the Dibble case ( supra) from the context of the peculiar facts there involved, the Appellate Division erroneously assumed that it could divest appellants of possession without passing on their claim of ownership.
As previously noted, the judgment of this court in the Dibble case ( supra) literally did not "determine right or title in the land", since there was no dispute that the Seneca Indian Nation had conveyed the lands in question to defendants' predecessors in title. All that case decided was that under the treaties of conveyance the defendants had no right of entry onto the reservation lands until certain conditions precedent occurred. Under the peculiar circumstances of the Dibble case, the right to occupy the lands had not yet vested in the record owners of the fee. Since the Indians were not obliged to surrender possession until directed to do so by the United States Government, it was possible to evict defendants as intruders, notwithstanding their alleged title to the premises.
In the instant case, however, title and the right to possession were inseparable, and the trial court lacked jurisdiction to oust appellants as intruders without a finding that the disputed parcel was, in fact, Indian land. The court made the requisite finding that the lands in question were part of the Shinnecock Reservation, thereby sustaining its jurisdiction, and its order most decidedly determined "right or title in the land". By holding to the contrary, without passing on the factual issue of ownership, the Appellate Division ruled, in effect, that appellants could be removed as intruders, notwithstanding the fact that they might own the land in question. Since this ruling is erroneous as a matter of law, section 606 of the Civil Practice Act requires us to remit the case to the Appellate Division for its determination upon the questions of fact raised in that court.
In short, the County Court, having jurisdiction of the parties and the proceeding, had power under section 8 to decide the issue of ownership. The Appellate Division, however, could not affirm the order divesting appellants of possession without deciding who had title to the land and hence the right to possession.
The order appealed from should be reversed, without costs, and the matter remitted to the Appellate Division for further proceedings not inconsistent with this opinion.
First enacted as chapter 204 of the Laws of 1821, the statute which is now section 8 of the New York Indian Law prescribes a summary procedure for ousting from "lands owned or occupied by any nation, tribe or band of Indians" in this State any intruders, that is, any persons attempting to settle or reside on such lands "except the members of such nation, tribe or band." In People ex rel. Cutler v. Dibble ( 16 N.Y. 203, affd. 62 U.S. 366) the purpose of such a proceeding was authoritatively stated as being "to remove intruders from what are indisputably the ungranted lands of the state, or the reservations of the Indian tribes" ( 16 N.Y., p. 214). The holding of this court in the Dibble case, never since questioned, was that "the order of removal adjudicates upon no claim, and determines no right or title, but leaves the party removed to the usual remedies to assert and establish any title to the locus in quo which he may deem himself to possess" (same page). The lower court Dibble decision (18 Barb. 412) which this court affirmed had said (pp. 415-416) that, in order to give a County Judge jurisdiction of such a removal proceeding, "it must appear, undoubtedly, that the intrusion was upon indian lands, that is, lands belonging to or occupied by a nation or tribe of indians". The United States Supreme Court, affirming this court in Dibble, declared that "The statute in question is a police regulation for the protection of the Indians from intrusion of the white people, and to preserve the peace" ( 62 U.S., p. 370). Every other authority, early or late, construes the Dibble case as holding that a section 8 proceeding is purely a summary one whereby the State exercises its police power to keep the peace on Indian lands (see "Federal Indian Law", U.S. Dept. Interior, 1958, p. 514, n.; 27 Am. Jur., Indians, § 48, pp. 572-573; 42 C.J.S., Indians, § 72, p. 784; Judge POUND in 22 Col. L. Rev. 97-99; People ex rel. Ray v. Martin, 294 N.Y. 61, 72, 73; Matter of Stakel [ Blueye], 281 App. Div. 183, affd. 306 N.Y. 679; Matter of Fischer [ Checkman], 283 App. Div. 518; Matter of Herne, 133 Misc. 286).
Despite all this, the County Court in the proceeding here under review undertook to decide a question of title as between the Shinnecock Indians and the defendant corporations which had built houses on the lands in dispute. The dispute which made its appearance at the trial of this section 8 proceeding was as to the boundary line of premises to which these defendants held title. When it thus became apparent that this was no matter of removing squatters from undisputed Indian lands but an actual dispute as to ownership, the County Judge should have dismissed the proceeding as being unavailable for such a purpose. Instead, the court denied defendants' motion on this jurisdictional ground for dismissal, and undertook to settle the contest as to boundary and title by making an order describing the land in litigation as being "owned and occupied" by the Shinnecock Tribe on whose behalf the District Attorney of Suffolk County (see § 8) had brought the proceeding. The Appellate Division affirmed, adopting from the Dibble opinion in this court the statement that the order "does not determine right or title in the land [but] leaves the parties * * * to the usual remedies to assert and establish * * * title".
We agree with the Appellate Division that no section 8 order can determine the ownership of land which is in dispute between an Indian Tribe and other persons. However, it follows from this that the Appellate Division, instead of affirming, should have reversed the County Court order and should have dismissed the proceeding, leaving the parties to the "usual remedies" to which the Appellate Division referred.
The Shinnecock Tribe of Indians, now numbering about 200 persons, has occupied lands on the easterly end of Long Island since before the white settlers arrived (see Report of Special Indian Committee, N.Y. State Assembly, Document No. 51, 1889, p. 53; and "The Indian Today in New York State", published by N Y State Joint Legislative Committee on Indian Affairs and Interdepartmental Committee on Indian Affairs, rev. April 1, 1959, p. 10). Just a century ago in 1859, by authority of chapter 46 of the Laws of that year, various land transactions and disputes between the tribe and the Town of Southampton, Suffolk County, were settled (see People ex rel. Howell v. Jessup, 160 N.Y. 249) by an exchange of deeds which partitioned lands including the parcel here in dispute by conveying to the trustees of the Shinnecock Tribe a parcel known as Shinnecock Neck, south of an "Indian ditch" and by conveying to the town the lands lying north of that ditch (see reference in "Federal Indian Law", supra, p. 984). Defendants in this proceeding derive their title through mesne conveyances from the Town of Southampton as such 1859 grantee. Whether the plot of land here in litigation was on the north or south side of the old "Indian ditch" in 1859 determines whether it belongs to the Shinnecock Tribe or to defendants, but the actual ditch has long since disappeared. The issue, therefore, which took form during the course of this trial, was as to a boundary line. For such an adjudication a section 8 proceeding could not validly be used.
Section 8 of our Indian Law is of the same character and meaning as the Federal "intruder" statutes passed by Congress from time to time (see U.S. Code, tit. 25, § 180, former §§ 220, 222; Cook v. Hudson, 110 Mont. 263, 285 et seq.; Murdock v. Farrell, 49 Utah 314, 319; Eells v. Ross, 64 F. 417; United States v. Flournoy Live-Stock Real Estate Co., 71 F. 576; United States ex rel. Gordon v. Crook, 179 F. 391; Morris v. Hitchcock, 194 U.S. 384, 389; and see other Federal statutes cited in "Federal Indian Law", supra, p. 632, n.) An assertion is made here that our present section 8 is somehow different in meaning from its prototype construed in the Dibble case ( supra). The difference is said to be that the statute now calls specifically for notice to the defendant and requires the County Judge to take proof of the facts, whereas neither of those requirements was expressed in the law at the time that Dibble was decided. However, this difference proves nothing since the Dibble case record shows that notice was given and that the facts were fully tried out before the court (and see People ex rel. Waldron v. Soper, 7 N.Y., p. 430).
Petitioner says that all questions as to the jurisdiction of the County Judge to decide the title dispute are out of the case because defendants waived this jurisdictional point. At the opening of the hearing, the County Judge asked defense counsel whether there was any objection to the procedure being pursued by the District Attorney, that is, any objection to the use of section 8. The defense attorneys answered that they had no objection and that there was no question of jurisdiction. Of course there was at that moment no question of jurisdiction since the District Attorney under the statute and as representing the tribe was before the court on a complaint that defendants were intruders on the tribal lands. That complaint required the Judge to issue a notice to the defendants and to hold a hearing, take proof of the facts and determine whether defendants were intruders "upon the lands of such reservation." But a true jurisdictional question did come into the case when the proofs showed that this was actually an issue as to ownership of land. At that stage of the trial defense counsel made a timely motion to dismiss the proceeding on the ground that the court had no jurisdiction since it appeared that the land was not indisputably within the bounds of an Indian reservation. The County Judge held that the jurisdictional point had been waived by defendants. We do not agree. Subject matter jurisdiction cannot be waived (see Meyers v. American Locomotive Co., 201 N.Y. 163, 166; Buckles v. State of New York, 221 N.Y. 418; Shea v. Export S.S. Corp., 253 N.Y. 17, 21) and, furthermore, the record here shows that there was in fact no intent to waive. Thus, although full proof was taken as to boundary and title, there was no jurisdiction in the County Court to make a determination thereon.
There is other historical data which would make it highly inappropriate to use a "reservation intruder" statute like section 8 to decide this boundary line quarrel. The Shinnecocks have never had treaty relations or any other relations with the United States Government, they have lost such tribal customs and language as they may have used in times long past, their lands are not listed as "reservations" by the United States Indian Service and for generations they have been considered to be under New York State's control, protection and government (see 1934 Atty.-Gen. 285; informal opinion of Attorney-General of New York, June 11, 1941).
It is suggested that this determination should be allowed to stand and that the Shinnecock Tribe should have the benefit of it because it may be impossible, on account of the status of the Indian Tribe, to get a determination in any other form of litigation. That question is not before us now. However, we point out that sections 5, 11-a, 120 and 121 of the Indian Law make available to the Shinnecock Tribe and its members, as well as to those suing them, full access to our State courts (see St. Regis Tribe v. State of New York, 5 N.Y.2d 24). Sections 5 and 11-a give full jurisdiction to the State courts as to Indian reservations like that of the Shinnecocks where there is no Peacemaker's Court and make broad provision for actions and special proceedings in the State courts between Indians or between one or more Indians and any other person (see, as to Federal authorization for § 5 amdt., U.S. Code, tit. 25, § 233, and U.S. House Reports Nos. 2720, 3040, 81st Cong., 2d Sess. [1950]). More specifically as to the Shinnecock Tribe, sections 11-a and 121 authorize the trustees of that tribe to deal with the lands of the tribe including the maintenance of actions or proceedings to recover the possession of such lands of the tribe unlawfully occupied by others and for damages for such occupation.
The order should be reversed, without costs, and the proceeding dismissed.
Chief Judge CONWAY and Judges DYE and BURKE concur with Judge FROESSEL; Judge DESMOND dissents and votes to reverse and to dismiss the proceeding in an opinion in which Judge VAN VOORHIS concurs; Judge FULD taking no part.
Order reversed, etc.