
    Matter of Proving the Last Will and Testament of Catharine Jack, Deceased.
    (Surrogate’s Court, Niagara County,
    January, 1907.)
    Indians — Probate of wills — State court without jurisdiction. Surrogates’ Courts — Nature and extent of jurisdiction — In general — Estates of Indians.
    The Surrogate’s Court of Niagara county is without jurisdiction to admit to probate the will of a Tuscarora Indian residing upon the Tuscarora reservation in that county.
    Proceeding upon the probate of a wilL
    John H. Leggett, for proponents.
    Ho other appearances.
   Hickey, S.

This is an application by Havemeyer Jack and Marvin Jack, Tuscarora Indians, the executors named in the last will and testament of Catharine Jack, deceased, to have the same admitted to probate. Catharine Jack was a Tuscarora Indian woman residing upon the Tuscarora Beservation in Hiagara county.

. It was held in Dole as Admr. v. Irish, 2 Barb. 639, that Surrogate’s Courts have no jurisdiction over the estates of Indians. But counsel for proponents urges that the Indian Law has been materially changed since the rendering of the above decision. He contends that, under section 2 of the Indian Law (chapter 679, Laws of 1892) jurisdiction of Indians’ estates is impliedly conferred upon the Surrogates’ Courts.

This section is in the main a re-enactment of section 4 of chapter 87 of the Laws of 1843. • Section 5 of the present Indian Law, relative to actions by Indians in State courts, is substantially the same as section 14 of chapter 365, Laws of 1847. Both these earlier laws were in effect at the time of the decision in Dole v. Irish. I find nothing in the later statute, conferring or tending to confer jurisdiction over Indians’ estates upon Surrogates’ Courts, that was not in the earlier law. As the decision in Dole v. Irish was a construetion of the statutes as they then stood and as those statutes have not since been materially changed, so far as conferring jurisdiction upon Surrogate’s Courts is concerned, it follows that the law as laid down in that case still holds good and is binding upon this court. Furthermore, I fully concur with Justice Mullett who wrote the opinion in Dole v. Irish that, when it becomes necessary for the State courts to further extend their jurisdiction over the Indians and their property, it must be done through the Legislature; “ and it does not become the judiciary voluntarily to march forward in such enterprises.”

In this connection it might be stated that, at the nineteen hundred and five session of the Legislature, a bill was introduced conferring jurisdiction over Indians’ estates upon the Surrogates’ Courts of the State. This measure, as I am reliably informed, was opposed by the Indians all over the State with substantial if not entire unanimity. This opposition of the Indians indicated that they did not recognize the Surrogates’ Courts as having jurisdiction over their estates; and the failure of the Legislature to pass the bill might be said to indicate that, in the judgment of that body, the time had not yet arrived when such jurisdiction should be conferred. A similar measure was introduced a few years earlier with the same results. This opposition of the Indians, together with the refusal of the Legislature to enact a law conferring jurisdiction, affords a sort of practical construction of the statutes in accordance with the views laid down in Dole v. Irish.

CouSsel also urges that, while Surrogates’ Courts have jurisdiction to grant administration in Indians’ estates, such estates must nevertheless be distributed according to Indian laws or customs and not according to State laws. This argument seems to me quite illogical. If the Surrogates’ Courts have jurisdiction over Indians’ estates for any purpose, they must have jurisdiction for every purpose.

The application for probate is denied, and proponents are given leave to withdraw the alleged will from the files of this office.

Probate denied.  