
    The Seneca Nation of Indians, App’lt, v. Jacob Lehley et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    3. Indians—Half breeds hat inherit land of.
    Chap. 160, Laws of 1845, in relation to lands of the Seneca Nation, places no restriction on the right of a half breed to the succession and occupancy of land of his ancestor.
    ». Sahe. .
    Lands were set apart to one J., an Indian, who married a white woman, and his daughter married the defendant Lehley, a white man. Meld, that the prohibition of the statute against alienation did not apply to the daughter, nor to her husband, who claimed only in right of her and her mother, both of whom were supported on the land.
    
      Appeal from a judgment entered upon the decision of the special term in Erie county, dismissing the plaintiff’s complaint upon the merits.
    The action is ejectment, and is brought to recover the possession of certain lands located on the Cattaraugus Indian Reservation,
    
      Hudson Ansley, for app’lt; Leroy Andrus, for resp’ts.
   Macomber, J.

The facts upon which this controversy arises are undisputed, and the same were agreed upon by the parties, and were submitted to the court upon the trial without a jury.

The defendants claim the right to the continued possession of the premises under a title derived from one Chauncey C. Jemison, a member of the Seneca Nation of Indians, who died on the reservation in the month of March, 1885. The defendant Harriet Lehley, the wife of the defendant Jacob Lehley, is a daughter of Chauncey C. Jemison.

For a period of more than twenty years before the beginning of this action, and during the life-time of Chauncey C. Jemison, these lands were held in severalty and were occupied and claimed by him, and his ancestors and grantors, as members of this tribe of Indians. Chauncey C. Jemison and his predecessors were all Indians of full blood, belonging to that nation. But the defendant, Jacob Lehley, is a white man; and the mother of the defendant, Harriet Lehley, whose name was Adelaide E. Jemison, was a white woman. From this fact, namely, that Jacob Lehley is a white man and Harriet Lehley is the daughter of a white woman, it is argued by the learned counsel for the appellant that the lands in question cannot be held by them under the laws of this state relating to this tribe of Indians.

By chapter 150 of the Laws of 1845 (incorporated in 2 R. S., 6th ed., 1051), it is provided (§ 1), that the Seneca Indians shall hold the lands contained in this reservation as a distinct community, and shall have the right to maintain actions which may be necessary to protect the rights and interest of the Nation. That portion of § 6 of said act bearing upon the question before us, is as follows: “And the said chiefs, at any annual or special meeting, may determine on the laying out of their lands for separate cultivation, improvement or occupancy, by any Indian and his family, and the quantity to each; * * * and when any land shall be set apart for any Indian or family, the peace-makers of the reservation shall lay out the same as shall have been directed, or in case specific instructions have not been given, as they shall judge reasonable and proper; and the said parcel shall be marked out and described by them, and the description thereof in writing shall be entered in a book by the said peace-makers, and every parcel so allotted shall remain in the Indian to whom the same was assigned, and his legal representatives, but without the power of alienating or in any way disposing of the same except to some other Indian of the said Nation, and when any such sale or disposition shall be made, the same shall be reported to the peace-makers of the reservation and by them entered in the said book.”

The facts so agreed, upon do not distinctly state that these lands were laid out under the authority of the chiefs for separate cultivation, improvement or occupancy by Chauncey C. Jemison, or by his ancestors, and it is argued from this circumstance that the •conclusion of the learned judge finding such actual laying out of the lands is erroneous. But it seems to us that his fourth finding ■of fact is a necessary corollary from the facts so agreed upon. The lands had been possessed and controlled by Chauncey C. Jemison and his ancestors for a long period, much more than twenty years, -and such occupancy and control had been undisputed, so far as the case discloses the fact to be. It was legitimate, therefore, for the trial judge to derive, as a conclusion of fact, that the lands had. actually been laid out for the separate cultivation, improvement and occupancy by and for the ancestors of Chauncey C. ■Jemison, and that they were marked out and allotted for that object by the peace-makers of the Seneca nation of Indians pursuant to law. A reasonable presumption arose from the fact of the occupancy by Chauncey C. Jemison and his ancestors, openly and under the eyes of the whole tribe, that the peace-makers of the tribe had granted such occupancy. It was a proper inference ■drawn from other facts and circumstances in the case, and was made upon common principles of induction. Jackson v. Russell, 4 Wend., 543; Angell on Limitations, § 380, and note; Buswell Lim. & Adv. Possess., § 231; O'Gara v. Eisenlohr, 38 N. Y., 296.

An examination of the statute, already referred to, does not disclose any restriction upon the right of a half-breed to the suc•cessorship and occupancy of the land. It matters not whether the family, thus coming into possession of the lands, was of the whole blood or not. The defendant, Harriet Lehley, the daughter of. ■Chauncey C. Jemison, is a member of the family, and is entitled to be protected in her possession. The prohibition against alienation of such lands to others than members of the tribe cannot apply to the defendant, Jacob Lehley, because he does not occupy ■or claim the lands in his own right, but only as the husband and agent of his half-breed wife, the direct lineal descendant of Chaun•cey C. Jemison, and also as the agent of her mother, the widow of Chauncey 0. Jemison, both of whom are supported thereon.

The judgment appealed from should be affirmed.

Dwight, J., concurs; Barker, P. J., not voting.  