
    George Terrance, Respondent, v. Peter Gray and Moses White, Appellants, Impleaded with Alexander White, Defendant.
    Third Department,
    January 6, 1916.
    Indians — Indian Law construed—jurisdiction — ejectment to recover Indian lands — allotment of land to St. Regis Indian.
    .The State courts have jurisdiction to determine an action of ejectment as between members of the St. Regis tribe of Indians.
    Section 3 of the Indian Law permitting a native Indian to take, hold and convey real estate the same as a citizen, has no reference to the right of an Indian tribe to convey or allot lands of its reservation.
    Although section 7 of the Indian Law permits a tribe owning lands in common to divide the same among the individuals and families of the tribe so that it may be held in severalty and in fee simple, said section does not contemplate the granting of a certain lot to a certain individual, but on the contrary authorizes a general division among the members of the tribe of lands which have been held in common.
    It will be presumed that tribal lands continue to be held in common where there is no evidence that a partition under section 7 of the Indian Law has been made.
    Sections 103 and 103 of the Indian Law, authorizing the St. Regis tribe to allot tribal lands to individual Indians, etc., does not make an Indian to whom lands have been allotted the owner in fee; it merely entitles him to the possession and use of the lands allotted which continue to be tribal lands.
    Hence, where, after the death of an Indian to whom lands have been allotted under said section, his heirs convey all his interest to another Indian and the tribe itself subsequently confirms his title and allots the lands to the grantee, he is entitled to judgment in an action of ejectment brought against the heirs of the prior owner who have regained possession by a forcible entry.
    Appeal by the defendants, Peter Gray and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 20th day of May, 1918, upon the decision of the court, certain questions having been submitted to and answered by the jury, and also from an order entered in said clerk’s office on or about the same day denying defendants’ motion for a new trial made upon the minutes. Appeal is also taken from the order of the court upon which the judgment was entered.
    
      
      Moore & Cooney [Robert M. Moore and A. B. Cooney of counsel], for the appellants. .
    
      Kellas, Cenaway & Kellas [Le Boy M. Kellas of counsel], for the respondent.
   Kellogg, P. J.:

This action of ejectment is between St. Eegis Indians, but the State courts may determine it. (Terrance v. Gray, 165 App. Div. 636.)

The questions of fact have been settled by the jury and the case is finally submitted to us as involving two principal questions: (1) The title of the plaintiff to the premises under the Indian Law, and (2) the effect, if any, of the judgment in Terrance v. Gray {supra), which was an action in replevin brought to recover crops growing upon the farm after the alleged conveyances to the plaintiff.

Under section 2 of the Indian Law a native Indian may take, hold and convey real property the same as a citizen. This relates to the capacity of the Indian to take and has no bearing upon the right of the tribe to convey or allot lands of the reservation.

Section Y of the Indian Law permits a nation, tribe or band which owns and occupies land as common property of the nation, tribe or band, by the act of its Lidian government, to divide the land into lots, and to distribute and partition the same, quantity and quality relatively considered, among the individuals and families of such nation, tribe or band, so that the same may be held in severalty and in fee simple according to the laws of this State. There is nothing in the record to indicate that the St. Eegis Indians in the State have divided their • common property among the members of the tribe in severalty, and the court will take judicial notice of the fact that the tribe continues to hold its lands in common, and that the partition permitted by this section has not taken place. This provision does not contemplate turning over a certain lot to a certain individual, the tribe retaining the rest, but means the general division among the members of the tribe of the property which before that had been held in common. The provision of -section Y that the lands thus partitioned shall be inalienable for twenty years, but may be partitioned among the heirs of a grantee who dies, does not, therefore, apply to this case.

We now come to the consideration of section 102 of the Indian Law, which relates to the St. Eegis tribe, and by it the chiefs or headmen of the nation in the county of Franklin, in council, “Shall allot and set apart for any Indian or Indian family making application and not possessing land, so much of the tribal lands as they shall deem reasonable and just, and no tribal lands shall be appropriated by any Indian to his own use, without such consent and allotment. The clerk shall enter in a book, képt for that purpose, every allotment of tribal lands, set apart for any Indian or Indian family, and the part thereof from which such Indian or family may sell timber or trees or the part he is permitted to clear for the purposes of cultivation. ”

Section 103 permits an Indian who has lands so allotted to him, with the consent of the chiefs, entered in the clerk’s book, to sell for his own benefit any timber or trees on that portion of such lands which he shall actually and in good faith clear for the purposes of cultivation. Section 104 prohibits any Indian from cutting or destroying timber or trees on any of the timber lands of such nation without the consent of the chiefs. There is nothing in the act to indicate that after the land is allotted pursuant to this section 102 it ceases to be tribal lands. The fact that the clerk- is to enter upon the book what part of the land the Indian may sell timber or trees from, and the parts that he is to be permitted to clear for cultivation, is important. This control of the land after the allotment indicates quite clearly that it remains tribal lands, and is set apart simply for the use of the Indian. The allotment does not make the Indian the owner of the fee; it entitles him to the possession and the use of the land allotted to him.

Thomas Gray, to whom the farm was allotted, died, having been killed by his son, Peter Gray. Peter Gray was convicted of manslaughter in the first degree for the offense, which indicates that the patricide was not the offense of Peter’s mind, but resulted from the heat of passion and that he had no intent to cause d'eath. Thomas Gray left him surviving his children, Peter Gray and Hattie White, the wife of the defendant Alexander White; he also left a widow, Jennie Gray. Peter Gray, while in prison and facing a trial for murder, conveyed his interest in the property to his sister, Hattie White, and thereafter she conveyed her interest to the plaintiff for $1,200. The plaintiff also paid the widow of Thomas Gray $150 and the wife of Peter Gray $50 for a transfer of their interest in the property. Thereafter the chiefs of the tribe made an instrument, attested by the clerk of the tribe, as follows: “ This is to certify that we have located and confirmed the title of George Terrance is without dispute. The said land is known as the Thomas Gray farm, described on page 36 of the Land Register Book. We now subscribe our names.” There is nothing to indicate that the plaintiff at the time possessed other land. I think we may assume that he was capable of having an allotment made to him. The certificate seems fairly to conn ply with section 102, and entitles the plaintiff to the use and occupancy of the land. The chiefs evidently considered that having obtained a conveyance of all the interests of the heirs of Thomas Gray in the property he was entitled to its use, and accordingly they allotted it to him.

The verdict of the jury establishes that the widow and heirs of Thomas Gray have conveyed to the plaintiff any interest they had in the farm. The conveyances to the plaintiff were made in January, 1907, and from that time until May, 1913, he was in undisputed possession of the farm. In the summer of 1913 Peter Gray and Alexander White forcibly entered into possession during the plaintiff’s absence. In Terrance v. Graay (supra) the plaintiff recovered in replevin the crops grown upon the farm that year. This action was brought August 15, 1914. The heirs of Thomas Gray having divested themselves of all interest in the farm, as between them and the plaintiff he may recover it by virtue of his former possession and the manner in which they acquired the possession from him. But we have seen that after the heirs of Thomas Gray conveyed their interest in the farm, it was allotted by the chiefs of the tribe to the plaintiff; the defendants are not in position to dispute the rights of the plaintiff under such allotment and the conveyances from them.

It is urged that the property cost the plaintiff hut $1,400 and was in fact worth $4,000. But if we are right in assuming that the property was only allotted to Thomas Gray for use and that he was not the fee owner thereof, perhaps the sum paid by the plaintiff for the interest he acquired in the property was not unreasonable.

It is unnecessary to consider whether or not Peter Gray could by murdering his father make himself the heir to his property. In any event the plaintiff stands as grantee of whatever interest the heirs and widow of Thomas Gray had in the property and were capable of conveying. It is also unnecessary further to consider the effect of the judgment in the replevin case.

Upon full consideration of the case we find no reason for disturbing the judgment. The judgment and order should, therefore, he affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  