
    Wyandank Pharaoh, as Chief and Head of the Montauk Tribe of Indians, Appellant, v. Jane Ann Benson and Mary Benson, as Executrices, etc., of Arthur W. Benson, Deceased, and Others, Respondents.
    Second Department,
    October 16, 1914.
    Real property—action by Indian tribe to recover lands — no suit lies except as permitted by statute — chapter 177, Laws of 1906, construed— burden of proof—failure to show continued existence of Indian tribe — evidence not establishing fraud and undue influence — when former judgment does not establish title of Indian tribe.
    In the absence of express statutory authority therefor no action will lie in the courts of this State in the name of any tribe of Indians, nor in the name of any Indian, a member of such tribe, suing in behalf of himself and others similarly situated.
    Chapter 177 of the Laws of 1906, entitled “ An Act to enable the Montauk tribe of Indians in the name of their chief or head to maintain actions in the courts of this State to establish and enforce their rights in and to certain real and personal property,” and providing that the question as to the existence of the Montauk tribe of Indians shall be a question of law and fact to be determined by the court, easts upon a plaintiff, suing under said statute to recover certain lands alleged to belong to said tribe, the burden of proving that at the time of the commencement of the action the Montauk tribe maintained its tribal existence and that the plaintiff is the chief or head thereof.
    Evidence in an action brought under the statute aforesaid examined, and held, that the plaintiff failed to establish that the Montauk Indians maintained a tribal existence and that he was head of said tribe.
    Held, further, that a purchaser of said lands in a former action of partb . tion, which was made subject to the Indian rights of occupancy, did not use fraud or undue influence in obtaining quitclaim deeds from Indians who had formerly been occupants, but that on the contrary said deeds were voluntarily executed for a good and valuable consideration.
    
      The fact that the judgment in said partition action provided that the lands were to be sold ‘1 subj ect to the rights and privileges of the Montauk Tribe of Indians ” did not amount to an adjudication establishing a right in the Indian tribe or create an estoppel in pais where said Indian tribe was not a party to the action.
    Appeal by the plaintiff, Wyandank Pharaoh, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 28th day of November, 1910, upon the decision of the court after a trial at the Suffolk Special Term.
    
      Allen Caruthers, for the appellant.
    
      Charles K. Carpenter [Alexander T. Mason and George C. Austin with him on the brief], for the respondents.
   Burr, J.:

This action was commenced in 1906 by Wyandank Pharaoh, as chief and head of the Montauk tribe of Indians, to determine the rights of such tribe in a tract of about 4,200 acres of land situated at Montauk Point on the easterly end of Long Island, known as Indian Field. In the absence of express statutory authority therefor, no action will lie in the courts of this State in the name of any tribe of Indians, nor in the name of any Indian a member of such tribe suing in behalf of himself and all others similarly situated. (Montauk Tribe v. Long Island Railroad Co., 28 App. Div. 470; Johnson v. Long Island R. R. Co., 162 N. Y. 462.) The only enabling act permitting such an action was passed in April, 1906 (Laws of 1906, chap. 177). The title of such act is: “An Act to enable the Montauk tribe of Indians in the name of their chief or head to maintain actions in the courts of this State to establish and enforce their rights in and to certain real and personal property. ” The enacting clause authorized and empowered the Montauk tribe of Indians, in the name of its chief or head, to “ commence, maintain and prosecute, in the courts of this State, any action or actions, proceeding or proceedings, at law or in equity, against any person or persons, corporation or corporations, whatsoever, to establish the right, title and interest of the said Montauk tribe of Indians in and to any property, real or personal, or to any easements in such real property.” It is apparent, therefore, that to maintain this action the burden of proof rested upon plaintiff to establish that at the. time of the commencement thereof the Montauk tribe of Indians still maintained a tribal existence, and that Wyandank Pharaoh was the chief or head thereof.' To .guard against the contention that such act might be equivalent to a legislative recognition of the existence of such facts, the act further provided: “§ 3. Nothing in this act contained shall be held to confer tribal rights, or relations upon any individual or individuals and the question as to the existence of the Montauk tribe of Indians shall be a question of law and fact to be determined by the court.” In each respect plaintiff has failed. The learned court at Special Term has found, upon evidence which abundantly sustains such finding, that long before the commencement of this action, and not later than 1885, “the Montauk Tribe of Indians has disintegrated and been absorbed into the mass of citizens and that at the time of the commencement of this action there was no tribe of Montauk Indians,” and refused to find as requested by plaintiff that Wyandank Pharaoh is now “recognized and is generally recognized by the said Indians as their chief or head.” The evidence establishes that since 1885 the two or three families then living upon Indian Field, and claiming to be descendants of the original Montauk Indians although the purity of blood was greatly impaired by miscegenation, particularly with the negro race, were not living in tribal relations, that they never exercised any political or civil rights as a separate nation or tribe, and that in that period they rarely met together as a community, and then not for the purpose of any distinctive tribal action. The evidence establishes that the men earned their living as day laborers, and the women by general housework. There is an entire absence of evidence of a distinct Indian tribal life, government or customs, but, on the contrary, it clearly appears that they have adopted the habits and customs of civilized life and become members of a civilized community, with nothing in their usages, manner of living, daily habits and family life which distinguishes them from the general population. In 1878 an action was commenced by Robert M. Grrinnell against Edward M. Baker and others, who were the successors in interest of the original patentees of Indian Field subject to the Indian rights of occupancy, for a partition and division thereof. In 1879 judgment was entered in said action, directing a sale of said land “subject to the rights and privileges of the said Montauk Tribe of Indians.” At the sale held under said judgment in October of that year, Arthur W. Benson became the purchaser, subject as aforesaid, of the entire tract. Thereafter, and about 1885, he opened negotiations with the few Indians then remaining upon Indian Field, which resulted prior to 1887 in all of them voluntarily removing therefrom and abandoning the same. In connection therewith he obtained at that time, or subsequently thereto, from each individual so removing, a conveyance of any rights which he might have in said land. The complaint alleges that such conveyances were obtained “by fraud and by undue influence.” The court at Special Term has found “that each and all of the releases and instruments * * * were voluntarily executed and delivered by the said Indian grantors thereof in good faith and for good and valuable considerations, and were not obtained by any fraud, undue influence or duress.” The evidence establishes that not' only was no fraud practiced by Arthur W. Benson or his successors in interest, nor any misrepresentation made by any one authorized to represent him or them, but on the contrary that the grantors therein were treated with great fairness, if not generosity, in connection therewith. In each instance other land was conveyed to them, near to the village of East Hampton, where a better opportunity is afforded them of earning a livelihood, accompanied by cash payments either of a lump sum or an annuity. We are convinced that the present condition of the grantors in the deeds to Benson is far better than if they were allowed to return to their former dwelling place in Indian Field. We do not deem it necessary to determine whether, treated as conveyances of an interest in land, these instruments are within the prohibition of the Federal Constitution and statutes, the State Constitution and the Penal Law. (TI. S. Const, art. 1, § 8, subd. 3; U. S. E. S. § 2116; 1ST. Y. State Const, art. 1, § 15; Penal Law [Consol. Laws, chap. 40; Laws of 1909, chap. 88], § 2030.) If we concede for the sake of the argument that such is the fact, the Indian right of occupation could certainly be lost by abandonment, and this whether such right was in the nature of an easement in gross, a license, or was “sui generis” and unrelated to any tenure known to the English common law. Such abandonment took place voluntarily and was complete by the year 1887. We think that this right was so far analogous to an easement that cessation of use, accompanied by acts clearly indicating an intention to abandon such use, would be operative without reference to the time of cessation, in like manner as a release executed by one competent to execute the same. (Welsh v. Taylor, 134 N. T. 450, 455.) We agree also with the learned court at Special Term that the fact that the judgment in Orinnell v. Baker, under which Benson bought, contained a provision to the effect that the property be sold subject to the rights and privileges of the said Montauk Tribe of Indians,” and that the deed to him contained a similar clause, did not create an estoppel either by judgment or “in pais.” The Montauk tribe of Indians was not a party to said action, and there was no adjudication as to the extent of their rights, if any. Its only effect was to prevent the purchaser at the sale from refusing to complete his purchase, if any such right did exist. It left him entirely free to question both the existence and the extent thereof.

The judgment should be affirmed, without costs.

Jenks, P. J., Eich, Stapleton and Putnam, JJ., concurred.

Judgment affirmed, without costs.  