
    Seneca Nation of Indians v. Lehley et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    S. Indians—Allotment of Land—Title by Prescription.
    Laws N. Y. 1845, e. 150, § 1, (2 Rev. St., 6th Ed., p. 1051,) declares that the Seneca Nation of Indians shall hold their lands as a distinct community, and may sue to protect the rights and interests of the nation. Section 6 provides that the chiefs may determine on the allotment of lands for separate cultivation, improvement, or occupancy by any Indian and his family, and the quantity to each. It is made the duty of the “peace-makers” to lay out, mark, and describe land allotted to individuals, and enter in a book the description thereof. Land so allotted shall remain in the Indian to whom it was assigned, and his legal representatives, without power of alienation, except to another Indian, of the same nation. A Seneca Indian and his ancestors had held undisputed possession and control of the land in controversy for more than 20 years. Held, that such land will be presumed to have been originally allotted to the ancestors, as provided by law.
    2. Same —Half-Breeds.
    The statute not expressly denying to half-breeds the right of successorship and occupancy of such allotted lands, they are entitled to take equally with Indians of the whole blood.
    S. Same—Occupation by Agent.
    The prohibition against alienating such land, except to an Indian of the same nation, does not apply to a white man acting as agent of his half-breed wife, and as agent of her mother, who are daughter and widow of the last Indian occupant.
    Appeal from special term, Erie county.
    Action was brought by the Seneca Nation of Indians, against Jacob Lehley and another, to recover possession of certain lands located on the Cattaraugus reservation. Plaintiff appealed from a judgment for defendants.
    Argued before Barker, P. J„ and Dwight and Macomber, JJ.
    
      Hudson Ansley, for appellant. Leroy Andrus, for respondents.
   Macomber, J.

The facts upon which this controversy arises are undisr puted, and the same were agreed upon by the parties, and were submitted to the court upon the trial without a jury. The defendants claim the right to the continued possession of the premises, under a title derived from one Chauncey C. Jemison, a member of the Seneca Nation of Indians, who died on the reservation in the month of March, 1885. The defendant Harriet Lehley, the wife of the defendant Jacob Lehley, is a daughter of Chauncey C. Jemison. For a period of more than 20 years before the beginning of this action, and during the life-time of Chauncey C. Jemison, these lands were held in severalty, and were occupied and claimed by him, and bis ancestors and grantors, as members of this tribe of Indians. Chauncey C. Jemison and his predecessors were all Indians, of full blood, belonging to that nation; but the defendant Jacob Lehley is a white man, and the mother of the defendant Harriet Lehley, whose name was Adelaide E. Jemison, was a white woman. From this fact, namely, that Jacob Lehley is a white man and Harriet Lehley is the daughter of a white woman, it is argued by the learned counsel for the appellant that the lands in question cannot be held by them under the laws of this state relating to this tribe of Indians. By chapter 150 of the Laws of 1845, (incorporated in 2 Rev. St., 6th Ed., p. 1051,) it is provided (section 1) that the Seneca Indians shall hold the lands contained in this reservation as a distinct community, and shall have the right to maintain actions which may be necessary to protect the rights and interest of the nation. That portion of section 6 of said act bearing upon the question before us is as follows: “And the said chiefs, at any annual or special meeting, may determine on the laying out of their lands for separate cultivation, improvement, or occupancy, by any Indian and his family, and the quantity to each; * * * and, when any land shall be set apart for any Indian or family, the peace-makers of the reservation shall lay out the same as shall have been directed, or, in case specific instructions have not been given, as they shall judge reasonable and proper; and the said parcel shall be marked out and described by them, and the description thereof, in writing, shall be entered in a book by the said peace-makers; and every parcel so allotted shall remain in the Indian to whom the same was assigned, and his legal representatives, but without the power of alienating, or in any way disposing of the same, except to some other Indian of the said nation; and, when any such sale or disposition shall be made, the same shall be reported to the peace-makers of the reservation, and by them entered in the said book.” The facts so agreed upon do riot distinctly state that these lands were laid out, under the authority of the chiefs, for separate cultivation, improvement, or occupancy, by Chauncey G. Jemison, or by his ancestors; and it is argued from this circumstance that the conclusion of the learned judge finding such actual laying out of the lands is erroneous. But it seems to us that his fourth finding of fact is a necessary corollary from the facts so agreed upon. The lands had been possessed and controlled by Chauncey C. Jemison and his ancestors for ' a long period, much more than 20 years; and such occupancy and control had been undisputed, so far as the case discloses the fact to be. It was legitimate, therefore, for the trial judge to derive, as a conclusion of fact, that the lands had actually been laid put for the separate cultivation, improvement, and occupancy by and for the ancestors of Chauncey C. Jemison, and that they were marked out and allotted for that object by the peace-makers of the Seneca Nation of Indians pursuant to law. A reasonable presumption arose, from the fact of the occupancy by Chauncey C. Jemison and his ancestors openly, and under the eyes of the whole tribe, that the peace-makers of the tribe had granted such occupancy. It was a proper inference, drawn from other facts and circumstances in the case, and was made upon common principles of induction. Jackson v. Russell, 4 Wend. 543; Ang. Lim. § 380, and note; Busw. Lim. § 231; O'Gara v. Eisenlohr, 38 N. Y. 296.

An examination of the statute already referred to does not disclose any restriction upon the right of a half-breed to the suceessorsliip and occupancy of the land. It matters not whether the family thus coming into possession of the lands was of the whole blood or not. The defendant Harriet Lehley, the daughter of Chauneey C. Jemison, is a member of the family, and is entitled to be protected in her possession.

The prohibition against alienation of such lands to others than members of the tribe cannot apply to the defendant Jacob Lehley, because lie does not occupy or claim the lands in his own right, but only as the husband and agent of his half-breed wife, the direct lineal descendant of Chauneey C. Jemison, and also as the agent of her mother, the widow of Chauneey C. Jemison, both of whom are supported thereon. The judgment appealed from should be affirmed.

Dwight, J., concurs. Barker, P. J., not voting.  