
    Buffalo, Rochester and Pittsburgh Railway Company, Appellant, v. Georgia Lavery, Respondent.
    
      Indian reservation — legislative power of the State over ■ — Federal control — lease to a railroad —prior invalid lease to an individual validated by the act of Gongress of February 19, 1875 — right of possession —judgment in ejectment recovered by the Seneea Nation.
    
    It. is not within the legislative power of the State of New York to empower Indian nations to make, or others to take from them, grants or leases of lands within Indian reservations.
    It is only pursuant to the Federal authority that lands belonging to an Indian reservation can he granted or demised or acquired by conveyance or lease from an Indian nation.
    Chapter 316 of the Laws of 1836 of the State of New York, authorizing railroad companies to contract with Indian nations for the right to construct railroads over Indian lands, is not within the legislative power of the State so as to give a railroad company, by virtue of a lease made in accordance with its provisions, by the Seneca Nation of Indians, without the intervention of Federal authority, prior to the act of Congress of February 19, 1875, of lands in the village of Salamanca in the Allegany Indian reservation, a right to the possession of such lands superior to that of an individual in possession under a prior lease, which, although originally invalid and giving no right as against the Seneca Nation, had been ratified and validated Under'the said act of Congress by a renewal thereof by the Seneca Nation.
    
      Semble, that such railroad company, having a lease from the Seneca Nation, had. the right to acquire the land in question by condemnation proceedings under the statute, although not entitled to recover in ejectment.
    A judgment was recovered by the Seneca Nation in an action of ejectment against a person in possession of reservation land under an invalid lease, which judgment was not executed, and after its recovery the defendant continued in possession until his right to a renewal of the lease under the act of Congress of 1875 was recognized, and the lease was renewed accordingly by the Seneca Nation.
    
      Held, that such judgment in the action of ejectment 'brought by the Seneca Nation against the same defendant did not inure to the benefit of a railroad company claiming a right to the possession of the land under a lease from the Seneca Nation, made after the original lease to such defendant.
    Appeal by tlie plaintiff, the Buffalo, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court, entered in the office' of the clerk of Cattaraugus county oil the 22d day of May, 1893, upon the report of a referee, dismissing the complaint.
    
      John, 8. Roclmell, for the appellant.
    
      G. W. dole and William II. Henderson, for the respondent.
   Bradley, J.:

The action is ejectment, brought to recover the possession of a piece of land situate in the village of Salamanca, in the county of Cattaraugus, and within the Allegany Indian Reservation. The claim made by both parties is founded upon leases or grants from the Seneca Nation of Indians. And the question is one of priority of right. The facts, as found by the referee, are not challenged by any exception.

In July, 1866, Charles Snow, a Seneca Indian, by instrument in writing executed by him, leased the premises to Allen McDonald, a white man, for the term of ten years, and shortly thereafter the latter, in like manner, assigned or sub-let to Lawrence Cere, who went into possession, and prior to 1870 erected there a dwelling house. And he was in the actual occupancy of the premises at the time the lease, hereinafter mentioned, to the Cattaraugus Railroad Company was made. In' or about the year 1872, Cere, by an instrument in writing, assigned the lease to William Dinter, who soon after went into the actual occupancy of the premises under the lease, and paid an annual rental reserved of five dollars. In March, 1880, Dinter applied to the council of the Seneca Nation of Indians for a renewal of the lease for the term of twelve years, and on the twelfth day of that month the lease was renewed for that term (reserving the annual rental of five dollars), in accordance with the usage of .the nation and pursuant to the act of Congress of February 19, 1875, hereinafter more particularly mentioned. In May, 1889, Dinter sold and transferred to the defendant all his right, title and interest in the premises. And about the time of the expiration of the term of the lease, and upon the application of the defendant therefor, a lease was made by the Seneca Nation of Indians to her for the term of ninety-nine years. It is upon this lease, with the support of those prior leases, that the defendant relies for her defense. The plaintiff’s claim to the right of possession has for its support a lease of the premises made by the Seneca Nation of Indians to the Cattaraugus Railway Company June 7,1872, to all the rights of which company, under such lease, the Rochester and State Line Railroad Company succeeded. And afterwards, in April, 1880, the Seneca Nation of Indians made a lease of the premises to the last-named company. The plaintiff afterwards, in March, 1887, was incorporated, .and became vested with all the rights of its predecessor under the lease, and all its rights derived from the lease before mentioned to the Cattaraugus Railway Company.

It may be assumed that the lease of Snow to McDonald, the transfer or sub-lease of the latter to Cere and his to Dinter, wei’e invalid at the time they were made, and gave no right, as against the Seneca Nation of Indians, to the premises. And unless they were rendered effectual by or through the act of Congress approved February 19, 1875 (Chap. 90), the plaintiff is entitled to the possession of the premises. By that act of Congress it was provided that all leases of lands within the Cattaraugus and Allegany reservations theretofore made by or with the authority of the Seneca Nation to railroad corporations were ratified, and that the Seneca Nation might lease lands within those reservations for railroad purposes. (§ 1.) That the president of the United States should appoint three commissioners to survey, create and establish the boundaries of the village of Salamanca and certain other villages within the Allegany reservation, including therein as far as practicable all lands then occupied by white settlers. (§ 2.)

That all leases of land situate within the limits of such villages in which Indians, or the Seneca Nation, or persons claiming under them, were lessors, should be valid and binding upon the parties thereto, and upon the Seneca Nation for a period of five years after the passage of the act, except such as should before then expire; and that at the expiration of that period or the termination of the leases they should be renewable for periods not exceeding twelve years, and the persons who should then be the owner or owners of improvements erected upon such lands should be entitled to such renewed leases and to continue in possession on such conditions as might be agreed upon, and when any lease should expire, after its renewal, it might, at the option of the lessee, his heirs or assigns, be renewed. (§ 3.)

That the Seneca Nation was authorized to lease lands within such villages to which no individual Indian or Indians or other person claiming under him or them was entitled to the rightful possession. (§*•) ^

And that it was made the duty of the commissioners so appointed to cause lands, then leased as before mentioned, to be surveyed and defined and designated on tlie maps of the villages, and that all leases then existing or thereafter made should be recorded in the office of the cleric of Cattaraugus county. (§ 5.)

Leases to railroad corporations were not embraced within the provisions of the third section.

By virtue of this act of Congress the lease to McDonald, the. transfer or sub-lease from him to Cere and from him to Dinter were validated as effectually as they could be without prejudice to intervening vested rights in others to the possession of the premises. (Ryan v. Knorr, 19 Hun, 540; Baker v. Johns, 38 id. 625 ; Wait v. Jameson, 15 Abb. N. C. 382.) It is urged by the plaintiffs counsel that the possessory right was effectually given to the Cattaraugus railway at the time the lease was made to it in 1812, and the plaintiff’s right of possession was not dependent upon the provisions of the act of Congress before mentioned. And reference is made to the provisions of the statute of this State passed May 12, 1836, that “ It shall be lawful for any railroad company that has been, or may hereafter be chartered by the Legislature of this State, to contract' with the chiefs of any nation of Indians over whose lands it may be necessary to construct such railroad, for the right to 'mate such road upon such lands ; but no such contract shall vest in such railroad company the fee to such lands, nor the right to occupy the same for any purpose other than what may be necessary for the construction, occupancy and maintenance of such railroad.” The contract, however, not to be effectual until ratified by the Court of Common Pleas of the county. (Laws 1836, chap. 316; 4 Edm. 368.)

The lease to the Cattaraugus Railway Company was made- and ratified in accordance with the provisions of that statute, and if it was within the legislative power of the State to effectually authorize to be accomplished that which its provisions import, the defendant has the superior right to the possession .of the lands in question.

It may be assumed that the plaintiff, having the lease from the nation, has the right to acquire the land in question by condemnation proceedings under the statute. But it is not within the legislative power of the State to enable the Indian nation to mate, or others to take from the Indians, grants or leases of lands within them reservations. In that matter the Federal government, having the power under the Constitution to do so, has assumed to control it by the act of Congress of June 30, 1834 (Chap. 161), which provides that: “No purchase, graiit, lease or other conveyance of lands, or of any title or claim thereto from any Indian nation or tribe of Indians, shall be of any validity ” in law or equity, unless the same is made by treaty or convention entered into pursuant to the Constitution. (U. S. R. S. § 2116.) This succeeded the act of Congress of March 30, 1802, which was substantially the same, and in like manner provided for the presence of the agent of the State for the purposes there mentioned, with the commissioner of the United States appointed to hold the treaty. As respects their lands, subject only to the pre-emptive title, the Indians are treated as- the wards of the United States, and it is oidy pursuant to the Federal authority that their lands can be granted or demised by or acquired by conveyance or lease from them. (Worcester v. Georgia, 6 Pet. 580 ; Mitchel v. U. S., 9 id. 748; The New York, Indians, 5 Wall. 761.)

The claim of the plaintiff, founded upon chapter 316 of the Laws of 1836 before mentioned, has no support in Seneca Nation v. Christie (126 N. Y. 122). There the persons taking the grant had the right of pre-emption, and it was made pursuant to treaty with the Indians, at which the State of Massachusetts and the United States were represented, in compliance with the act of Congress of 1802. The only question in that action was whether a ratification of the treaty by the Senate of the United States was essential to the validity of the grant. And it was disposed of on the able and instructive opinion of Judge ANDkews upon the subject. It may be observed that the provisions of the act of Congress of 1834 were modified by that of 1875, so far as relates to those parts of the Allegany reservation within the villages mentioned in the latter act of Congress. The Cattaraugus Railway Company and its successors, therefore, acquired no right from the lease to it, except such as was derived from the act of Congress of 1875. By virtue of the; same act, the prior lease, the source of the defendant’s claim of right to possession, was also ratified. There does not seem to be anything inconsistent with this view in the determination made in People v. Beardsley (52 Barb. 105) of the questions there presented. While it is within the legislative power of the State to prohibit intrusion or residence upon the reservations by persons other than Indians, and to provide for police regulations there, it has no power to impose taxes upon their lands. (People v. Dibble, 16 N. Y. 203; S. C., 21 How. [U. S.] 366; The New York Indians, 5 Wall. 761.)

As bearing upon the matter of the priority of the leases in question, the plaintiff put in evidence a judgment recovered October 23, 1873, by the Seneca Nation of Indians against William Dinter in an action of ejectment brought to recover possession of premises, including those in question. The judgment, by force of the statute, was conclusive as to the title established in such action upon Dinter and against all persons claiming from,, through or under him by title accruing after the commencement of the action in which the recovery was had. (2 R. S. 309, § 36 ; Bates v. Stearns, 23 Wend. 482; Briggs v. Wells, 12 Barb. 567; Dawley v. Brown, 79 N. Y. 390.) The judgment was not executed ; Dinter remained in possession. And afterwards, in 1880, the lease under which he went into occupancy of the premises was renewed by the Seneca Nation. He, at the time the judgment was recovered, had as against the nation, no right to the possession, for the reason before stated, nor had the plaintiff then any right to it. He remained in the possession of the premises when the act of Congress of 1875 was approved, and thereafter until his right under the act to renewal of the McDonald lease was pursuant to it recognized, and the lease renewed by the Seneca Nation. In view of those facts, it is not seen that the recovery of the judgment in the ejectment action against him can inure to the benefit of the plaintiff so as to give the leases under or through which it claims priority over that under which Dinter may be deemed to have occupied the premises, when support came to it from the act of Congress and by its renewal to him pursuant to such act.

These views lead to the conclusion that the plaintiff is not entitled to recover.

None of the rulings at the trial reqjiire consideration.

The judgment should be affirmed.

Dwight, P. J"., Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed.  