Opinion
April Term, 1898.
L.B. Treadwell [ Francis M. Morrison with him on the brief], for the appellant.
Alfred A. Gardner [ William J. Kelly with him on the brief], for the respondent.
One of the grounds of the demurrer is that the plaintiff has no capacity to sue, and this is the ground on which the decision of the Special Term proceeded. It is not worth while to enter upon any discussion of the status of the Indian tribes within this State, as we think that on the question now before us we are concluded by authority. In Strong v. Waterman (11 Paige, 607) it was held that, while the Indians had the undoubted right to the beneficial use and occupancy of their lands, no provision had been made by law for bringing ejectment to recover possession of them; that as a body or tribe, the Indians have no corporate name by which they can institute such a suit.
This doctrine was again asserted in Seneca Nation v. Christie ( 126 N.Y. 122), where it was held that the right of that nation to sue depended solely on the Enabling Statute of 1845 (Chap. 150). This ruling cannot be considered obiter, as a writ of error was dismissed by the Supreme Court of the United States, on the ground that the decision of the Court of Appeals on the effect and construction of the Enabling Act necessarily determined the controversy, and that, therefore, the other grounds on which the decision of that court proceeded were immaterial. ( Seneca Nation v. Christie, 162 U.S. 283.) The statute of 1845 in express terms is limited to the Seneca Nation. I can find no general statute passed since the decision of Strong v. Waterman which enables Indian tribes or nations to sue as such. Section 11 of the Indian Law (Chap. 679, Laws of 1892) cannot be construed as effective for the purpose. This section is substantially a re-enactment of section 8 of chapter 234 of the Laws of 1841, which was in force four years before the decision of Strong v. Waterman.
Within a few days a decision has been rendered by the Supreme Court of the United States in the case of The New York Indians v. The United States. It would appear from the calendar of that court, and also the report of the decision in the Court of Claims, that the action was instituted by the claimants under the name and title of "The New York Indians." The authority for that action was given by chapter 52 of the acts of the fifty-second Congress (approved January 28, 1893). It is doubtful whether the decision has any bearing on the case before us. But assuming that Indians may sue in the Federal courts by their tribal names, without special statutory authority, the decision of the Court of Appeals already cited shows that they have not a similar privilege in the courts of this State. Still the Indians are not without redress. They may apply to the Legislature for authority to maintain an action like the present, or it may be that, under the authority of Strong v. Waterman ( supra), an action might be instituted by one of their number on his own behalf and on behalf of the other Indians of his tribe.
It follows that the judgment appealed from must be affirmed, without costs.
All concurred.
Interlocutory judgment affirmed, without costs.