
    Ogden and Fellows vs. Lee and Ellsworth.
    The Seneca nation of Indians have a valid title to the lands known as the Cattaraugus Reservation, subject to the pre-emption right ceded to Massachusetts by the award or convention of December 16th, 1786.
    Accordingly, where the plaintiff, having purchased all the interest of Massachusetts in those lands, brought trover for a quantity of saw-logs which the Indians had cut thereon and sold to the defendants; held, that the latter acquired a valid title, and that the action could not be maintained.
    Trover for a quantity of saw-logs, tried at the Erie circuit in December, 1842, before Dayton, C. Judge. The logs in question were cut on and taken from a tract of land called the Cattaraugus Reservation, lying partly in the counties of Erie, Chautauque and Cattaraugus. As the plaintiffs had never been in actual possession, they proposed to show that they were the owners in fee of the land; and for that purpose they gave in evidence the award or convention made on the 16th of December, 1786, between the states of New-York and Massachusetts, by their respective agents or commissioners. By the first article of that convention, the commonwealth of Massachusetts ceded to the state of New-York all her claim, right and title “ to the government, sovereignty and jurisdiction of the lands and territories” therein particularly specified, which included the lands in question. By the second article, New-York ceded, granted, released and confirmed to Massachusetts “ the right of 
      
      pre-emption of the soil from the native Indians, and all other the estate, right, title and property, (the right and title of government, sovereignty and jurisdiction excepted,) which the state of New-York hath” to the same lands. The 10th article was as follows: “ The commonwealth of Massachusetts may grant the right of pre-emption of the whole or any part of the said lands and territories to any person or persons, who by virtue of such grant shall have good right to extinguish by purchase the claims of the native Indians. Provided, however, that no purchase from the native Indians by any such grantee shall be valid, unless the same shall be made in the presence of and approved by a superintendent to be appointed for such purpose by the commonwealth of Massachusetts, and having no interest in such purchase, and unless such purchase shall be confirmed by the commonwealth of Massachusetts.” ' The plaintiffs also gave in evidence a contract on the part of Massachusetts to sell the ceded lands to Samuel Ogden, and an assignment of the contract by- Ogden to Robert Morris. On the 11th of May, 1791, the commonwealth of Massachusetts, by four several deeds, conveyed to Morris, “his heirs and assigns forever, the pre-emption right, and all other right, title and interest which the said commonwealth hath to” the said lands. The plaintiffs also gave in evidence several conveyances by virtue of which they claimed to have acquired all the interest of Morris in the lands.
    The Cattaraugus Reservation, on which the logs were cut, was at the time, and always had been, in the possession of the Seneca nation of Indians, they being one of the six nations of Indians mentioned in several treaties between them and the United States. The Indians felled the trees and sold the logs in question to the defendants, who took and carried them away in the winter of 1836 and 1837. The value of the timber taken was $1047. The defendants moved for a nonsuit, which was refused; and the judge charged the jury that the plaintiffs were entitled to a verdict for the value of the logs. Verdict accordingly. The defendants now moved for a new trial on a bill of exceptions.
    
      
      H. K. Smith & M. Fillmore, for the defendants,
    cited 1 Bio. Laxos of U. S. 307, 309, 311, 377; Public Laxid Laxos, part 2d, p. 158; Opinions of Att. Gen. of U. S., p. 344; Worcester v. Stale of Georgia, (6 Peters, 544;) Mitchell v. United States, (9 id. 745;) Georgia v. Canatoo, a Cherokee Indian, (National Intelligencer of October 24th, 1843,)
    
      J. M. Smith & J. Mullett, for the plaintiffs,
    cited Penn v. Lord Baltimore, (1 Ves. sen. 144;) Johnson v. McIntosh, (8 Wheat. 543;) Fletcher v. Peck, (6 Cranch, 87;) 3 Kent’s Comm. 378—399; Smith’s Hist, of N. Y., 54, 240; 1 R. S, 718, § 1.
   By the Court, Bronson, J.

The principal question made by this bill of exceptions has been so fully discussed in the books cited at the bar, and is so well settled by the acts of the government, that little need be said on the present occasion. The European governments whose people discovered and made settlements in North America, claimed the sovereignty of the country, and the ultimate title, but not the immediate right of possession, to all the lands within their respective limits. Upon the principle laid down by Yattel, [B. 1, § 81, 209,) they might have asserted a larger right; for the native Indians lived by fishing and hunting, without converting to the purposes of agriculture any considerable portion of the vast tracts of country over which they wandered. But the' Europeans pursued the more just and politic course of acquiring the Indian title by purchase. The claim which they set up and asserted amounted to little more than a pre-emption, or the right of purchasing from the Indians all the lands within the bounds of their respective discoveries, to the exclusion of pll other nations. It is true that the British crown granted charters and issued patents for large tracts of land before the Indian right had been extinguished; and these instruments purported to convey the property in fee. It was so of the grant made by Charles the second to his broths er the duke of York in 1664, which included all the territory now constituting the states of New-York and New-Jersey. But these grants were not intended to convey, and the grantees never pretended that they.had acquired an absolute fee in the land. They neither took nor claimed any thing more than the ultimate fee, or the right of dominion after the Indian title should be extinguished. And so far as the state of New-York is concerned, I am happy to say, that beyond what may have been acquired by conquest in lawful war, the Indians have never been deprived of a single foot of land without their voluntary consent. Their title by occupancy has been uniformly acknowledged, both by the colonial and state governments, from, the first settlement of the country down to the present day; and it cannot now be successfully questioned in the judicial tribunals.

This view of the matter is fully confirmed by the title deeds which the plaintiffs gave in evidence. In the adjustment of the conflicting claims of the states of Massachusetts and New-York to the tract of country which includes the Cattaraugus Reservation, Massachusetts ceded all her right to “the government, sovereignty and jurisdiction” of the disputed territory; and New-York ceded “the right of pre-emption of the soil from the native Indians.” The words which follow—“ and all other the estate, right, title and property which the state of New-York hath”—were not intended to enlarge the grant into an unqualified fee. It is impossible to suppose that the parties meant to disregard and set aside the Indian title which they had but the moment before fully recognized, by contracting for “the right of pre-emption of the soil from the native Indians.” This point is rendered still more clear by a subsequent clause in the deed of cession. By the tenth article, -the commonwealth of Massachusetts was authorized to grant “the right of pre-emption,” and nothing more; and her grantees were only to acquire “ good right to extinguish by purchase the claims of the native Indians.” Then follows a proviso, “ that no purchase from the native Indians by any such grantee” should be valid, unless the same should be made undér the superintendence, and be confirmed by the commonwealth of Massachusetts. The two states not only acknowledged a right in the Indians which could only be extinguished by purchase; but they took care to guard the Indians against imposition and fraud in all the negotiations which might be had for the acquisition of their title by the grantees of Massachusetts.

Now upon what principle can this action be maintained? The Seneca nation of Indians have never parted with the title to the lands on which the timber was cut. Their right is as perfect now as it was when the first European landed on this continent, with the single exception that they cannot sell without the consent of the government. The right of occupancy, to them and their heirs forever, remains wholly unimpaired. They are not tenants of the state, nor of its grantees. They hold under their own original title. The plaintiffs have acquired . nothing but the right to purchase whenever the owners may choose to sell. In the meantime, or until the tribe shall become extinct, the Seneca Indians will remain the rightful lords of the soil. They have cut and sold their own timber, and I see no principle upon which the plaintiffs can have an action either against them or their vendees.

This view of the casé renders it unnecessary to inquire whether the plaintiffs made out a regular deduction of title.

New trial granted.  