
    MONTAUK TRIBE OF INDIANS v. LONG ISLAND R. CO.
    (28 App. Div. 470.)
    (Supreme Court, Appellate Division, Second Department.
    April 19, 1898.)
    Indians—Authority to Sue.
    While the Indians in New York have an undoubted right to the beneficial use and occupancy of their lands, no provision has been made by law for .bringing ejectment to recover possession of them (except Laws 1845, c. 150, relating exclusively to the Seneca Nation), and as a body or tribe the Indians have no corporate name by which they can institute such a suit.
    Appeal from special term, Suffolk county.
    Action by the Montauk Tribe of Indians, by Wvandank Pharoah, their chief and king, against the Long Island Railroad Company.. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT,. HATCH, and WOODWARD, J J.
    L. B. Treadwell (F. M. Morrison, on brief), for appellant.
    Alfred A. Gardner (William J. Kelly, on brief), for respondent.
   CULLEN, J.

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, GOT, 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, 27 N. E. 275, where it was held that the riaht of that nation to sue depended solely on the enabling statute of 1845 (chapter 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 was rendered were immaterial. Seneca Nation v. Christy, 162 U. S. 283, 16 Sup. Ct. 828. 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 (chapter 679, Laws 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 New York Indians v. U. S., 18 Sup. Ct. 531. 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, Acts 52d Cong, (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 státutory authority, the decisions of the court of appeals already cited show 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 concur.  