
    People ex rel. Waldron et al. v. Soper.
    
      Penal statute. — Certiorari.
    In a proceeding to remove intruders upon Indian lands, under the act of 21 st March 1821, the defendants must be summoned, in order to confer jurisdiction ; and to authorize a warrant of removal, it must appear, that the lands were owned or occupied by an Indian nation.
    On the hearing of a common-law certiorari, the court will only look into the facts returned; it will not assume, that there was other evidence to sustain the jurisdiction.
    Appeal from the general term of the Supreme Court, in the eighth district, where the proceedings of the county judge-of Genesee county had been affirmed, on certiorari.
    
    This was a certiorari directed to the defendant, Soper, as county judge of Genesee, to remove certain proceedings had before him for the removal of Waldron and others, the relators, as intruders upon Indian lands.
    The act of 21st March 1821, c. 204, provides, “that it shall be unlawful for any person or persons, other than Indians, to settle or reside upon any lands belonging to or occupied by. any nation or tribe of Indians within this state, * * * and if any person or persons shall ^settle or reside on any such lands, contrary to this act, it shall be the duty of any judge of any [*429 court of common pleas of the county within which such land shall be situated, on complaint made to him, and on due proof of the fact of such settlement or residence, to issue his warrant, under his hand and seal, directed to the sheriff of such county, commanding him, within ten days after the receipt thereof, to remove such person or persons, so settling or residing, with his, her or their families, from such lands.”
    By a subsequent section, it was made the duty of the district-attorneys of the several counties within which Indian lands were situated, “to make complaint of all intrusions upon Indian lands, forbidden by the act, and, from time to time, to make inquiries whether any persons, other than Indians, are settled upon such lands, and to cause them to be removed in the manner herein prescribed.”
    On the 3d January 1849, the district-attorney of Genesee county made complaint to the respondent, under this act, against Waldron and others, the appellants, who were not Indians, “ for settling and residing on lands, known ‘as the Tonawanda reservation,’ consisting of about 12,800 acres; and that such reservation is owned and occupied by the Seneca Nation of Indians, who reside on said reservation, and who are also distinguished and known as the Tonawanda band of the Seneca Nation of Indians.”
    The defendant, Waldron, appeared by counsel, and put in a written answer to the complaint; but it did not appear by the return to the certiorari, that either of the ether defendants had been summoned, or had appeared. Waldron set up title in himself and the other defendants, as grantees of Ogden and Fellows, under the compacts, agreements and treaties set forth in the preceding case of Blacksmith v. Fellows, and denied that any part of the Tonawanda reservation was occupied by the Seneca Nation of Indians, or any band thereof.
    The evidence given, and returned with the writ, showed, that there was “a band of Indians called the Tonawanda band, that occupied the tract of land designated in the complaint, except certain portions thereof * 430 1 *se^e<^ uPon by the persons named in the said -* complaint, and other white persons (not Indians) to the number of about thirty families; that the Tonawanda band of Indians claimed to own the land; that the Tonawanda Indians had their several improvements on said tract, and resided each upon the improvement owned and claimed by him; and that the whole of the Indian improvements on the said tract amounted to only two thousand two hundred and sixteen acres; that the white persons settled upon the tract had made improvements thereon, erected buildings, made and opened highways, and built bridges and erected a school-house and opened a school therein; that they had settled upon said tract, some claiming that they had bought, and others that they had hired the land, either of the Ogden company or their agents; that the defendant, Waldron, had been in the possession of certain premises on the said tract, for upwards of two years, as the tenant of Fellows, and that of the other white persons settled on the said tract, some had been settled there a little more than a year, and some of them had come upon said tract within the last three years.” There was also evidence given and returned of the title of Ogden and Fellows.
    The county judge, thereupon, issued his warrant to the sheriff of Genesee county, commanding him to remove the defendants from the reservation; and his judgment having been affirmed by the supreme court, on certiorari, the defendants took this appeal.
    
      Spencer, fox the appellants.
    
      Martindale, for the respondent.
   *Edmonds, J.

There are two to the r decision of the county judge, apparent on the ^ face of the return, which, it seems to me, are fatal to the proceedings, and render the examination of any other part of this case unnecessary.

I. It does not appear, that any of the parties to the proceedings were summoned, or caused to appear before the county judge, or that any of them did appear, except Waldron. Of course, the judge had no power to proceed against any who did not appear; yet the judgment which he pronounced was as well against those who did not appear as against those who did. There is nothing which our law denounces more explicitly, than an adjudication of the rights of a party without offering him an opportunity of being heard in his defence.

II. Waldron having, however, voluntarily appeared, it may be necessary to examine further as to him, and in doing so, the second objection to the proceedings appears. The act of 1821, under which the proceedings were had, authorizes them only when there is an intrusion on lands owned or occupied by the Indians. From this return, it .does not appear, that these lands were owned by the Indians; The only word that is used upon that subject is, that they were claimed to be owned by them. There is no evidence that such claim had any foundation ; none of such ownership; no statement even that they were owned by them.- The complaint avers that they are owned and occupied by the Indians; Waldron’s answer denies both ownership" and occupancy, and there is no statement, or- averment, or evidence of ownership, except the conveyance to Ogden and Fellows, and that tends to show an ownership out of, rather than in, the Indians. And as to occupancy, the -return is equally imperfect; all that it says on that subject is, that the Indians occupy all the tract, except certain portions thereof settled upon by the persons named in the complaint and divers other white persons, &c. And it is nowhere said in the return, that * the Indians ever occupied those portions thus settled on by the' whites.

, ______ *There may have been other evidence before * 4^2 1 the county judge elucidating these points; but that we cannot know. We are "bóund by the return, and for aught - that appears there, - these proceedings may have been taken in respect to lands never either owned or occupied by the Indians, and the judge may be exercising this summary jurisdiction in respect to lands to which the Indians never had either title or possession. This cannot be, and as such ownership or occupancy was essential to his jurisdiction, his judgment must 'be reversed.

Judgment reversed, and proceedings of the respondent annulled. 
      
       The constitutionality of the act of 1821 was mooted; but it was held to be constitutional, in People v. Dibble, 18 Barb. 412 ; which was affirmed by the court of appeals, in 16 N. Y. 203 ; and by the supreme court of the United States, in 21 How. 366.
     