
    Blacksmith v. Fellows and another.
    
      Indian Reservations. — Trespass.
    Under the treaty with the Seneca Nation (7 U. S. Stat. 586), an Indian of, that tribe, in the actual and separate occupation of lands upon the Tonawanda reservation, had a right of occupancy until the amount which he was entitled to receive for his improvements was determined and awarded, in pursuance of the treaty; and he could maintain trespass for a forcible entry upon the lands so separately occupied.
    
    Where the non-performance of a condition precedent is prevented by others than the parties to the contract, it is not equivalent to a perfoianance, so as to vest a right in the grantee ; especially, where there was another mode of performance than that attempted.
    Appeal from the general term of the Supreme Court, in the eighth district, where a judgment entered upon a verdict in favor of the plaintiff had been affirmed.
    This was an action of trespass quare clausum fregit, brought by John Blacksmith, a Seneca Indian, belonging to the Tonawanda band, against the defendants, Joseph Fellows and Bobert Kendle, for entering, with force and arms, into the close of the plaintiff, commonly known as an Indian saw-mill and yard, in the town of Pembroke, in the county of Genesee, and then and there expelling and dispossessing the plaintiff. The defendants pleaded “ not guiltyand that the close, &c., was the soil and freehold of the defendant, Fellows, and that he, and the defendant, Kendle, as his servant, and by his command, broke and entered the said close, &c., as they lawfully might, for the cause aforesaid. To the latter plea, there was a replication, averring that the close, soil and freehold were not the close of the defendant Fellows.
    On the trial, it was proved by the plaintiff, that the close mentioned in the declaration was situate in the town of Pembroke, in the county of Genesee, upon a tract of 12,800 acres of land, known as the Tonawanda reservation, and was, at the time of the entry complained of, an Indian improvement upon the same; that said improvement was made about twenty years before the treaty of 1838, by the plaintiff and seven other Tonawanda Indians; that the plaintiff was a native Indian, belonging to the Tonawanda band of the Seneca Indians, who resided on that reservation, and were a part of the Seneca Nation, and had been so known for at least 36 years; that he had resided on this reservation from his birth, and was in the actual possession of the said improvement, at the time of the entry complained of; and that, on the 13th July 1846, the defendants entered into, and took possession of, the said close, and turned the plaintiff out, and in doing so committed the trespass for which suit was brought.
    It was admitted, that a treaty had been made between the United States and the Six Nations of Indians, on the 11th November 1794 (7 U. S. Stat. 44), by which certain lands in western New York, including the Tonawanda reservation, were declared “to be the property of the Seneca Nation, and the United States will never claim the same, nor disturb the Seneca Nation, nor any of the Six Nations, or their Indian friends residing thereon, and united with them, in the free use and enjoyment thereof; but it shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase.”
    The plaintiff having closed, the defendants’ counsel moved for a nonsuit, on the ground, that the plaintiff, an individual Indian, could not maintain an action for oreach of close; the court, however, denied the motion, and the defendants excepted.
    *The defendants then gave in evidence certain documents and acts of the legislatures of the states *- of New York and Massachusetts, showing that a dispute had arisen, at an early day, between the two states, in respect to the title to a large tract of land, within the limits of New York, of which the locus in quo was a part. In 1786, this dispute was amicably settled, by a cession from Massachusetts to New York of the sovereignty and jurisdiction over the tract, and by a cession from New York to Massachusetts of the right of pre-emption to the soil from the Indians. This right of pre-emption subsequently became duly vested in Thomas S. Ogden and Joseph Fellows, by proper conveyances from the state of Massachusetts, and on the death of Ogden, in December 1844, survived to the defendant Fellows.
    On the 15tb January 1798, an agreement was entered into between the chiefs and headmen of the Seneca Nation of Indians, and Thomas S. Ogden and Joseph Fellows, whereby the Seneca Nation, in consideration of $202,000, granted to Ogden and Fellows, the Buffalo Creek reservation, containing 49,920 acres; the Cattaraugus reservation, containing 21,680 acres; the Allegeny reservation, containing 30,469 acres; and the Tonawanda reservation, containing 12,800 acres. This conveyance was recognised and affirmed by a treaty between the New York Indians of the same date; and was recited in, and annexed to, a treaty between the United States and the Seneca Nation, bearing date the 15th January 1838. (7 U. S. Stat. 551.)
    By the last-mentioned treaty of 1838, there was set apart, as a permanent home for all the New York Indians, a tract of country, west of the state of Missouri, containing 1,000,824 acres of land, being, as therein expressed, “three hundred and twenty acres for each soul of said Indians, as their numbers are at present computed.” The Seneca tribe, including their friends, the Onondagas and Cayugas then numbered a population of 2633.
    By the 10th section of this treaty special provision was made concerning this tribe and their friends. They were to have assigned to them the easterly part of the tract set apart to the New York Indians, and to extend so far as to include one half section of land for each soul. The tribe agreed to remove from New York to their new home, within five years, and continue to reside there. It then recited the purchase of the title of the Seneca Nation to certain lands, described in a deed of conveyance, by Ogden and Fellows, assignees of the state of Massachusetts, for the consideration of $202,000; that the Nation, had agreed that this money should be paid to the United States; and that, thereout, the sum of $102,000 should be paid to the owners of the improvements on the lands so conveyed — the residue to be invested by the government, and the income thereof to be paid to the Nation, annually, at their new homes. The improvements were to be appraised, and a distribution of the $102,000 made among the owners, and “ to be paid by the United States, to the individuals who were entitled to the same, <fcc., on their relinquishing their respective possessions to Ogden and Fellows.”
    Some difficulty having occurred in carrying this treaty into execution, a second treaty was made on the 20th May 1842 (7 U. S. Stat. 586), modifying the former one, which, after referring to the differences that had arisen between the parties, provided, that Ogden and Fellows, for the consideration therein mentioned, stipulated that the Seneca Nation might continue in the occupation and enjoyment of the Cattaraugus and Allegeny reservations, and that the Nation released and confirmed to Ogden and Fellows, the Buffalo Creek and Tonawanda reservations.'
    
      *Tke 3d article of this treaty provided for a reduction of the amount to be paid by Ogden and Fellows, to correspond with the relative value of the reservations released and retained. The 4th article provided for an appraisal of the land and improvements in the Buffalo Creek and Tonawanda reservations, by appraisers (one to be appointed by the secretary of war and the other by Ogden and Fellows), and for a report of their proceedings to the secretary and the grantees.
    [ *404 *The 5th article provided for a surrender of the possession of the two tracts confirmed to Ogden and Fellows, as follows: “The forest or unimproved lands on the said tracts, within one month after the report of the said arbitrators, shall be filed in the office of the department of war, and the improved lands, within two years after the said report shall have been so filed; provided, always, that the amount to be so ascertained and awarded as the proportionate value of the said improvements, shall, on the surrender thereof, be paid to the president of the United States, to be distributed among the owners of the said improvements, according to the determination and award of the said arbitrators in this behalf, and provided further, that the consideration for the release and conveyance of the said lands shall, at the time of the surrender thereof, be paid or secured to the satisfaction of the said secretary of the war department, the income of which is to be paid to the said Seneca Indians annually. But any Indian having improvements may surrender the same, and the land occupied by him and his family, at any time prior to the expiration of the said two years, upon the amount ^awarded to him for such improvements being ^ paid to the president of the United States, or any *- agent designated by him for that purpose by the said Ogden and Fellows, which amount shall be paid over to the Indian entitled to the same, under the directions of the war department.”
    
      The defendants further showed the approval of the last-mentioned treaty, by the state-of Massachusetts; the appointment of appraisers in pursuance thereof; and their inability to perform the duties enjoined upon them, in consequence of the determined hostility of the Seneca Indians, residing upon the Tonawanda reservation. * 4061 *^iey reP0I4ed to the secretary of war, in March -* 1844, that they had been unable to determine the amount to be paid to individual Indians, but made a general estimate of the aggregate value of the improvements from the best information they could obtain.
    The defendants having rested, the plaintiff insisted that their proof of title and right of possession was insufficient in the following particulars :
    1. There is no proof that the Tonawanda Indians, or chiefs or headmen, ever signed either the deeds or treaties offered in evidence by defendants, or that the persons who signed them had any power or authority to grant away the Indian title to the Tonawanda reservation, or that such persons had any possession of, or right to, said reservation.
    *2. There is no proof offered of any custom, *407] or usage, or law, by which the persons who executed the deeds or treaties offered in evidence by defendants, had any power to grant away the lands described in them, and particularly the Tonawanda reservation.
    3. There is no proof that either of the said deeds or treaties were made under the authority, and with the consent, of the legislature of this state.
    4. The defendants have not shown that, at the time of the execution of said deeds and treaties, said Ogden and Fellows, or either of them, were the grantees of Massachusetts, directly or by mesne conveyances.
    5. They have not shown that Thomas C. Love was ever appointed an appraiser or arbitrator by the secretary of war, the letters and other documents given in 'evidence, signed by Th. H. Crawford, are not competent to show the appointment of Mr. Love as such arbitrator.
    6. These letters and documents, even though competent, are not properly proved; the originals should be produced.
    7. There is no evidence that the arbitrators have awarded and determined the amount to be paid to the owners of the individual improvements on the Tonawanda reservation, agreeable to the 4th article of the deed of May 20th, 1842.
    8. The report of the arbitrators given in evidence is not competent testimony to show what occurred at the Tonawanda reservation, as an excuse for not making such award.
    9. The evidence of the witness, Ira Cook, does not show that it was impracticable to make an award.
    10. The Tonawanda Indians who objected to the appraisal by Love and Cook, at the councils described by Cook, had no authority or power, of themselves, to dispense with or excuse the determination and award required by said 4th article,
    11. There is no proof of the payment of the improvement money, so called, for the Tonawanda reservation, to the president of the United States, pursuant to article 5th of said deed of May 20th, 1842, or of any payment of said money.
    12. There is no proof that the award and determination ^required by the 4th article of said deed of May 20th, 1842, has been filed in the office of the *- department of war, as required by the 5th article of said deed.
    The learned judge (Sill, J.) without passing upon the objections in detail, ruled that the defendants had failed to establish any title or right of possession to the premises in question; to which the defendants’ counsel excepted.
    The defendants then requested the court to charge the jury, that the action of the Indians on the Tonawanda reservation, and of the plaintiff himself, in interfering and preventing the arbitrators from performing the duties imposed on them, could not prejudice the rights of the grantees under the treaty of May 20th, 1842, and that in consequence thereof, Fellows, the surviving grantee, was entitled to the possession of the close in question, at the expiration of two years from the filing of the award in the office of the war department, notwithstanding the omission of the arbitrators to award and determine the amount to be paid to the plaintiff, or any other individual Indian, for improvements on the Tonawanda reservation, out of the said sum of $58,768.96, awarded for improvements on the Buffalo Creek and Tonawanda reservations. This instruction was refused, and another exception taken.
    The court was also requested to instruct the jury, that for the purpose of making an award for the distribution of the improvement-fund among the individual Indians, the arbitrators should be deemed to be the agents of the Indians themselves, and that no failure of the arbitrators to perform that part of their duty, could prejudice the rights of the grantees, Ogden and Fellows, unless such failure had been caused or procured by them. This was also refused, and an exception taken.
    The defendants’ counsel also requested the court to charge, that even if the defendants had shown no title to the close in question in the defendant Fellows, still * aaq i Pontiff) *an individual Indian, could not J maintain the action of trespass for breaking and entering the premises. The learned judge, however, decided, that the plaintiff being in possession could maintain the action, and, therefore, refused so to charge; to which the defendants took another exception.
    There was a verdict for the plaintiff for $825 damages ; and the court, at general term, having rendered judgment thereon, the defendants took this appeal.
    
      
      Spencer, for the appellants.
    
      Martindale, for the respondent.
    
      
       The supreme court of the United States, in affirming this case, put it on the ground that a removal of a tribe of Indians could only be made, by authority and under the care of the federal government. 19 How. 366.
    
   Edmonds, J.

There was originally a dispute between the states of New York and Massachusetts as to a large tract of land of which the locas in quo was a part. In 1786, that dispute was settled, by a cession from Massachusetts to New York of the government, sovereignty and jurisdiction of the lands in controversy, and by a cession from New York to Massachusetts of “the right of pre-emption of the soil from the native Indians, and all other right or title of New York” to the same. The lands were then in the independent occupancy of a nation of Indians, and were owned by them, and all that Massachusetts acquired by the cession to her, was the exclusive right of buying from the Indians, when they should be disposed to sell. This right was duly vested in "Ogden and Fellows, by proper conveyances from the state of Massachusetts, and they thus became seised of all the white man’s right over these lands, except that of sovereignty, which still remains in the state of New York.

The Indian title, however, was not yet extinguished, and the Indians were in the actual possession of the land, and before Ogden and Fellows could enjoy any benefit from this grant from the state of Massachusetts, it was necessary for them to acquire the Indian right. Various steps were taken for that purpose; it is unnecessary here to enumerate them. It is enough, for the purposes of the question now before us, to know, that in May 1842, a conveyance from what purported to be the chiefs and headmen of the Seneca nation of Indians was executed to Ogden and Fellows, with the assent of an officer of the state of Massachusetts and a commissioner on the part of the United States, by which * 412 1 ** waS a§ree<^ *Indian title to four dif- -* ferent tracts of land, known as the Buffalo, the Cattaraugus, the Allegeny and the Tonawanda reservations was valued at $202,000, that the Indians should retain the occupation and enjoyment of the Allegény and Cattaraugus reservations, and they thereby conveyed to Ogden and Fellows the whole of the Buffalo and Tonawanda reservations; that the Indians should be paid the consideration for that grant, as follows: $100,000 should be regarded as the value of their title to the whole four tracts, and $102,000 as the value of their improvements on the same four tracts, and so much of those sums should be paid by Ogden and Fellows, as.„the value of the title and improvements on the Buffalo and Tonawanda tracts should bear to the value of the title and improvements on all the tracts; such amount to be determined by arbitrators to be chosen as therein mentioned.

Those arbitrators were to employ suitable surveyors, to explore and examine to ascertain the entire quantity in all the tracts, and award and determine the amount to be paid to each Indian, for his improvements on the two tracts conveyed. And Ogden and Fellows were to have possession of the forest lands, within one month, and of the improved lands, within two years, after the report of the arbitrators should be filed in the war office, provided that the amounts awarded for improvements should, on the surrender of the possession, be paid to the president of the United States, to be distributed among the owners of the improvements, in the sums awarded to each by the arbitrators. This indenture was incorporated into and formed part of a treaty made at the same time between the United States and the same chiefs and headmen.

Afterwards, arbitrators were appointed agreeable to the terms of the treaty and indenture, and they executed their duty as to all the four tracts, except the Tonawanda (in which are the premises in question). They awarded that $75,000 was the proportion which the value of the two tracts conveyed, bore to the whole four tracts, and $58,768.96 was the proportion which the value of tjae improvements on those two tracts bore to the improvements on all the tracts. But they „ ^ were unable to award as to the amount to be ^ paid to each individual for his improvements on the Tonawanda tract, for the reason, that that portion of the nation which was in possession of that tract refused to let them perform their duty in this respect, and removed them by force from the tract, when they went there, as they did twice, for the purpose of making their examinations and award. Such award has never yet been made, but at the end of the two years, after filing the report in the war-office and upon the payment to the president of the United States of the aggregate sum awarded by the arbitrators, Fellows, as the survivor of his joint-tenant, Ogden, entered by force,'and ejected the plaintiff from the improvements possessed by him. Those improvements, which consisted of a dam and saw-mill had been made by the plaintiff and seven other native Indians, twenty years before, and were in the actual occupation of him, at the time the defendants entered into and took possession of the close and turned the plaintiff out.

Upon this state of facts, the jury, under the charge of the court, found a verdict for the plaintiff. On the trial below, the court ruled, that the defendants had failed to .make out any title or right of possession, and refused to charge that Fellows had made out a title to the close in question; that Fellows, at the end of the two years, was entitled to the possession, notwithstanding the omission of the arbitrators to award as to the amount to be paid to the plaintiff as the value of his improvements; that such failure of the arbitrators could not prejudice Fellows, unless it had been caused by him; and that the plaintiff, as an individual Indian, could not maintain the action. The supreme court, at general term, denied the motion for a new trial, on the ground, that the award of the arbitrators in full, as required'by the indenture of conveyance and the treaty, was a condition precedent to the grantee’s right of possession. '

The first point taken on the argument was, that the plaintiff could not maintain an action, individually, for trespass on lands belonging to the whole nation. * 414 1 ^-^is ™ight be true, if the action was founded -* only upon title. So, it might be true, if it was founded upon the occupancy in common, which, we know, is usual with the Indian tribes. But this action is not founded upon either basis, but upon the separate possession of the plaintiff. The bill of exceptions shows that he was, alone .and separately from all others, in possession of the locus in quo, when the trespass was committed, and that was enough, to enable him to maintain an action for a wrong done to that possession.

The chief question, however, is, whether Fellows had a right to the possession, before the arbitrators awarded in full. His claim to the possession rests upon the conveyance which was in prsesenti, and absolutely, of the fee in the premises. That of itself might confer upon him the right of possession, if there was nothing else in the case; but the conveyance under which he claims, so far from carrying with it this as a necessary incident to the title, expressly reserves the possession from him, until the happening of a certain event, namely, the filing in the war-office of the award which the conveyance required.

It is very clear, that he was not entitled to possession, by virtue merely of the conveyance in prmsenti of the absolute title, but only upon the happening of a contingency, and it was necessary for him, in making out his defence, to show that the contingency had happened. He, accordingly, attempted to do so, and-proved that an award had been filed as required. But was that all that was necessary? Was it not also necessary for him to show, that it was such an award as the conveyance and treaty required ? Instead, however, of showing that it was such an award, his evidence showed that it was not; he then proved an excuse why it was not, and sought to give to that excuse for non-performance the same force and effect that properly belonged to performance. Whether he could do that, is the question now before us.

There is no particular form of words necessary to constitute a condition precedent; the true test is the intention of the parties. And it is very evident to me, that it was the intention *of the parties, that f the occupiers of the land should not be com- *- pelled to give up .the possession of them, until two conditions had been complied with; one, that such an award should be obtained and filed in the war-office; and the other, that the value of the improvements should be paid to the president, and the consideration for the conveyance be paid or secured to the satisfaction of the secretary of war. The language in which that particular stipulation is clothed, conveys that impression to my mind, and there is another provision that carries the same idea. I mean, the provision that any Indian having improvements may surrender them, prior to the expiration of the two years, upon the amount awarded to him for such improvements being paid to .the president, or any agent designated by him for that purpose.” I regard the parties to the conveyance, then, as having stipulated, that the occupiers of the land shall not be compelled to surrender their possessions, until there shall have been obtained and filed in the war-office an award, which shall determine the amount to be paid to each individual Indian for his improvements.

The parties had a perfect right to make such a stipulation ; there is nothing unreasonable or unconscionable in it; nothing, indeed, to make it void; though, as it stipulates as to the action of third persons, there may be something to make it difficult to perform. That difficulty, however great it may be, is not enough to make the stipulation nugatory, or authorize its being dispensed with. It is like the familiar case of insurance, where the conditions provide, that before the insurers shall be compelled to pay the loss, the insured shall procure a certificate from a neighboring magistrate, minister or churchwarden, and where, it is well settled, that however unreasonable the refusal to give such certificate may be, the insured cannot recover without it. In that case, the court have said — “ If there be a condition precedent, to do an impossible thing, the obligation becomes single, but however improbable the thing may be, it must be complied with, or the right which was to attach on its being performed does not vest. If the condition . „ _ be that A. shall enfeoff B., and *A. do all in his v "J ^ | e power to perform the condition, and B. will not receive livery of seisin, yet, from the time of Lord Coke to the present moment, it has not been doubted, but that the right which was to depend on the performance of that condition did not a-rise.” (Worstly v. Wood, 6 T. R. 710.)

I know of but one mode of avoiding the compliance with the condition, in such a case, and that is, where the party exacting the condition prevents its performance; in that event, his act of prevention is tantamount to a performance. But to produce that effect, such prevention must come from the party exacting the condition, and not from him in whose behalf or to whom it is to be performed. As, in the case put in 6 T. R, if C. exacted as a condition, that A. should enfeoff B., B.’s preventing the enfeoffment, by refusing to receive livery of seisin, would not be tantamount to a performance; though.if C. prevented it, if would; for C. had, in fact, stipulated for the acts of both A. and B., as the acts of both were necessary to the feoffment created.. Thus, in a covenant in a charter-party, to pay the value of reshipping, in case of capture, &c., provided it should appear to a court-martial, that the captain had made the best defence, the holding of a court-martial was held to be indispensable as a condition precedent. (Davidson v. More, 3 Doug. 28.) So, in case of an agreement to pay for repairs, on an architect’s certifying they are done, &c., such certificate is essential. (Morgan v. Birnie, 3 M. & S. 76; s. c. 9 Bing. 672.) So, if a party stipulate that a horse shall trot eighteen miles within an hour, to the satisfaction of K, N.’s satisfaction must be obtained, before there can be a recovery. (Brogden v. Marriott, 2 Bing. N. C. 473.) So, if a man covenant that his son shall marry the covenantee’s daughter, her refusal will not discharge the covenantor. And so, where goods were bought, subject to.the valuation of A. and B., and A. refuse to value. (Chitty on Cont. 572-3; Cook v. Jennings, 7 T. R. 384; McNeill v. Reed, 9 Bing. 68).

In all these cases, which were stipulations for the acts of other parties, the language of the courts has always been, in answer to complaints about the difficulty of performance — “You have so agreed, and you must so perform; you ought to *have protected yourself in your agreement against the consequences; having omitted to do so, the court cannot do it for you.” These principles seem to be directly applicable to and decisive of the case before us. [ *417

Ogden and Fellows say fit to stipulate that they should have no right to the possession of the lands conveyed to them, and that the individual Indians in possession should not be disturbed, until a particular award, determining certain specified matters, should first be obtained and filed in the war-office. To effect that purpose, the acts of several persons, strangers to the contract, were necessary; those, namely, of the secretary of war, of the arbitrators, and their surveyors, agents and witnesses. They chose so to agree, and it is not in the power of any one, except the chiefs and headmen with whom they contracted, to release them from the stipulation. Those chiefs and headmen have not released them, nor have they done anything to prevent or waive a strict performance. The plaintiff and those who were associated with him in preventing the arbitrators from going on to the premises, were not parties to the contract; they were not of those chiefs or headmen; and their acts can no more be regarded as waiving performance, than that of the secretary of war, if he had refused to appoint an arbitrator, or, if no person could be procured to act as arbitrator, nor than the refusal of the churchwardens, in the case of the insurance.

And besides, it does not anywhere appear, that the arbitrators could not have made the individual valuation required. They were, it is true, prevented by the plaintiff and others from going on to the premises, but did it necessarily follow that, therefore, they could not make such valuation; that they could not take testimony off the tract, and from that testimony perform their duty, as well as from a personal examination? There does not seem to have been any such absolute necessity for their making a personal examination as they seem to have supposed; for they seem to have readily arrived at the aggregate of such valuation, without such view, and * 418 1 ^ *s n°* easy *f°r us conceive, why the parts -* which went to make up that aggregate could not have been stated.

In this view of the case, it becomes unnecessary to examine another point agitated on the argument, whether the conveyance to Ogden and Fellows vested a good title in them. Because, if it did, they were not, by -the express language of the conveyance, entitled to the possession, until the performance of a condition which has been neither performed nor waived.

And I put my opinion solely upon the ground that the condition precedent to the right of possession has not been performed. Fellows was, therefore, a trespasser, and the judgment of the supreme court ought to be affirmed.

Welles, J.

{Dissenting) — The first point made on behalf of the appellants, is, that the plaintiff in the court below could not maintain an action, individually, for trespass on land belonging to the Seneca Nation of Indians; the bill of exceptions shows that the plaintiff is a native Indian, belonging to the Tonawanda band of the Seneca Nation; that the close mentioned in the second count of the declaration is situated in the town of Pembroke, in the county of Genesee, upon the tract of 12,800 acres, commonly known and designated by the name of the Tonawanda reservation; that the close in question is, and was at the time of the entry complained of, and at the time of the commencement of the suit, an Indian improvement upon said Tonawanda reservation ; that the said improvement was made, about twenty years before the trial, by the plaintiff and seven other Tonawanda Indians; that the plaintiff has resided on the Tonawanda reservation, with the same band, from his birth; that he was in the actual possession of said improvement, at the time of the entry complained of; that on the 13th day of July 1846, the defendants entered into and took possession of the said close, and turned the plaintiff out, and in doing this, committed an assault upon him.

I am not aware of any legal impediment in the way of the plaintiff’s sustaining the action, under such a state of facts; he was in possession of the close, and for the purposes of this *question, his possession is to be ^ deemed rightful, and the defendants had no right ■- to disturb him. The fact that he was an Indian, it seems to me, should not disqualify him from seeking redress in our courts, in the ordinary way, for such an injury. We are not informed by the case, what were the particular relations of the individuals of his tribe or nation with each other, respecting the rights of property, in regard either to real or personal estate; whether they held all things in common, or whether the title or right of property in respect to each other was in the individuals or the nation, or in the particular tribes or bands. It seems to me, it would not do, to hold an individual of the nation ipcapable of sustaining an action for an injury to his person or his personal property, committed by a citizen of our government; and it will be difficult, upon principle, I apprehend, to distinguish between such a case -and that of an intrusion without right upon his possession of land.

The general rule is, that the person in possession must bring the action "for trespass on land; and it appearing that the plaintiff was in the actual possession of the close in question, at the time of the injury complained of, it seems to me, it was competent for him to commence and sustain the action. Provision is made in § 8 of the act entitled'“An act in relation to certain tribes of Indians,” passed 25th May 1841 (c. 234), by which actions for trespasses on Indian lands may be brought in the name of the people of this state, or by any three chiefs of the tribe. But this does not, as I think, deprive an individual Indian of his common-law right to sustain an action for a like injury. The act, I suppose, was designed to furnish additional facilities for preventing such trespasses, and additional protection to the Indians. The foregoing remarks are designed, of course, to apply to the case as the facts appeared at the trial, when the plaintiff rested, and befo] e the evidence of the title of the defendant Fellows had been introduced.

But it is further contended on behalf of the defendants, that the defendant Fellows had the legal title in fee in the premises, *and, therefore, / had the ^ right to enter upon and take possession of them ^ and to oust the plaintiff therefrom. The second plea of the defendants sets up this defence on the part of the defendant Fellows, and that the defendant Kendle, at the time, when, &c., acted as the servant of Fellows, and by his command, &c. The replication simply takes issue upon the title of Fellows. If that issue was maintained by the proof, the justice before whom the action was tried, erred in fuling the contrary, and the judgment in the court below should be reversed.

At the close of the evidence, the plaintiff’s counsel objected to the proof of title in Fellows, claiming -that such proof was defective in twelve particulars, which were specified. The circuit court decided and ruled, generally, without passing upon the objections separately, that the defendants had failed to establish any right or title to the close in question in the defendant Fellows.

The defendant Fellows claimed title to the premises, by purchase from the Seneca Nation of Indians; to sustain which, he gave in evidence, among other things, an indenture purporting to have been made and concluded between Thomas Ludlow Ogden and Joseph Fellows, of the one part, and the chiefs and headmen of the Seneca Nation of Indians, of the other part, at a council duly assembled and held at Buffalo creek, in the state of New York, on the twentieth day of May 1842, by which the said chiefs and headmen did, among other things, grant, release and confirm unto the said Ogden and Fellows, their heirs and assigns, in joint-tenancy, the two tracts of land severally called- the Buffalo Creek reservation and the Tonawanda reservation, and all the right and interest therein of the said nation. For which Ogden and Fellows were to pay to the nation a just consideration to be estimated and ascertained as follows: Assuming the value of the said two reservations, together with the Cattaraugus ¿and Allegeny reservations (for the purchase of all four of which tracts or reservations by Ogden and Fellows from the nation a previous agreement had been made), to be deemed and taken to be $202,000, of * 421 1 w^ck sum $100,000 *should be deemed to be the 1 value of such title in and to all the lands within the foui tracts, exclusive of improvements thereon, and 102,000 to be the value of the improvements within the said four tracts; and of the said sum of $100,000, Ogden and Fellows were to pay to the Seneca Nation such proportion as the value of all the lands within the Buffalo Creek and Tonawanda reservations should bear to the value of all the lands within the four tracts; and of the $102,000 they should, pay such proportion as the value of. the improvements on the two tracts should bear to the value of. the improvements on all the four tracts. Such consideration to be determined by the judgment and award of arbitrators, one to be named by the secretary of war and one by Ogden and Fellows, which arbitrators might employ suitable surveyors to explore, examine and report on the lands and improvements, and to ascertain the contents of each of the said tracts. The indenture also provided that the same arbitrators should also award and determine the amount to be paid to each individual Indian, out of the sum which, on the principles above stated, they should ascertain and award to be the proportionate value of the improvements on the Buffalo Creek and Tonawanda reservations, with provision for choosing an umpire, in case of disagreement between the arbitrators. The arbitrators were to make a report in writing of their proceedings, in duplicate, one to be filed in the office of the secretary of war, and the other to be delivered to Ogden and Fellows.

The fifth article of this indenture is in the words following: “ Article 5th. It is agreed, that the possession of the two tracts hereby confirmed to the said Ogden and Fellows shall be surrendered and delivered up to them as follows, viz: The forest or unimproved lands on the said tracts, within one month after the report of the said arbitrators shall be filed in the office of the department of war, and the improved lands, within two years after the said report shall have been so filed; provided, always, that the said amount to be so ascertained and awarded, as the proportionate value of the said improvements, shall, on the surrender thereof, be paid to the president of the United States, to be distributed among the ^owners of the said improvements, according ^ # ^ to the determination and award of the said *- arbitrators in this behalf; and provided further, that the consideration for the release and conveyance of the said lands shall, at the time of the surrender thereof, be paid or secured, to the satisfaction of the said secretary of the war department, the income of which is to be paid to the said Seneca Nation of Indians, annually. But any Indian having improvements may surrender the same, and the land occupied by him and his family, at any time prior to the expiration of the said two years, upon the amount awarded to him for such improvement being paid to the president of the United States, or any agent designated by him for that purpose, by the said Ogden and Fellows, which amount shall be paid over to the Indian entitled to the same, under the direction of the war department.” The indenture contained various other articles and provisions, none of which are necessary to be stated in the present connection.

On the same day on which the indenture was made and bears date, at the same place, a treaty was made and concluded between the United States, by Ambrose Spencer, their commissioner thereto duly authorized, on the one part, and the chiefs, headmen and warriors of the Seneca Nation of Indians, duly assembled in council, on the other part'; reciting among other things, the said indenture verbatim, and consenting to the several articles and stipulations contained therein between the sai'd nation and the said Ogden and Fellows, and providing that the United States would receive and pay the sum stipulated to be paid as the consideration-money of the improvements specified in the indenture, and would receive, hold and apply the sum to be paid or the securities to be given for the lands therein mentioned, as provided for in such indenture.

In pursuance of this treaty, and of the indenture incorporated therein, Thomas C. Love was appointed by the secretary of war, and Ira Cook, by Ogden and Fellows, arbitrators to discharge the duties in the indenture specified. On the first of April 1844, their report and * 423 1 awarc*' premises, bearing *date 26th March 1844, was received and filed in the office of the war department, by which report and award it appears, that they had agreed upon all the matters in and by the said indenture submitted to them. That they had determined, adjudged and awarded that Ogden and Fellows should pay to the Seneca Nation the sum of $75,000 for the Indian title to all the lands in the Buffalo Greek and Tonawanda reservations, and that they should pay the said nation $58,708.96, as the value of the improvements on the two last-mentioned reservations. They also determined the amount to be paid to each individual Indian on the Buffalo Creek reservation for his improvement. The report of the arbitrators, as well as the oral evidence given on the trial, shows that they, the said arbitrators, attempted to go upon the Tonawanda reservation, with surveyors and other assistants, for the purpose of making the necessary surveys and examinations in order to determine the amount to be paid to each individual Indian, in pursuance of said treaty and indenture, and that they actually went upon the said reservation for that purpose, and were about commencing their work, when a large number and nearly all of the adult Indians residing thereon being assembled, and among them the plaintiff, the arbitrators were forbidden by the plaintiff and others, and prevented from proceeding in such work, and were ordered to leave the reservation, and the arbitrators were each taken by the arm by the plaintiff, and led off beyond the line of the reservation, and that such acts of the plaintiff and others of such Indians, in preventing the arbitrators from the performance of their duties in this respect, were in pursuance of a unanimous resolve of all the Indians so assembled.

The case shows, that Ogden and Fellows have duly paid the whole of all the moneys awarded by the arbitrators to be paid by them for the title and improvements of both the Buffalo Creek and Tonawanda reservations. It was admitted on the trial, that Thomas L. Ogden died in December 1844, which was previous to the alleged trespass. As the grant in the indenture was to Ogden and Fellows *as joint-tenants, whatever title they derived thereby, upon the death of *- Ogden, survived to Fellows.

The supreme, court, at general term, refused a new trial, holding that the determination and award of the arbitrators of the amount due to each individual Indian, in pursuance of the provisions of the indenture, was a condition precedent to the vesting of the title in Ogden and Fellows, who accepted the grant subject to that condition, and undertook the risk of its performance; and that inasmuch as it had never been performed, their title had not vested.

I am inclined to the opinion, that the provision in the indenture, for the appraisement of the value of the improvements of each individual Indian, is not to be regarded as a condition of the grant. By the second article of the indenture, the chiefs and headmen of the nation, “do grant, lease and confirm unto the said Thomas Ludlow Ogden and Joseph Fellows, and to their heirs and assigns, in joint-tenancy, the whole of the said two tracts of land, severally called the Buffalo Creek reservation and the Tonawanda reservation, and all the right and interest therein of the said nation.” The words “release, grant and confirm,” are effective to pass the title, and sufficient for that purpose; they amount to a conveyance in 'prsesenti. The consideration for the grant is stated to be certain facts recited therein, the agreement of Ogden and Fellows mentioned in the first article, and the agreement next thereinafter contained, which is for the payment by Ogden and Fellows of the purchase-money, the amount to be determined by the arbitrators as before stated. The payment of the purchase-money, in an instrument containing terms equivalent to a grant of the lands, in order to amount to a condition of the grant, must be so provided, showing that to have been the intention of the contracting parties.

In the present case, it is provided in the fifth article of the indenture, and, as I think, as a condition of the grant, that the gross amount to be ascertained and awarded as the proportionate value of the improvements, should, on the surrender of the lands, be paid by * 425 1 and Fellows to *the president of the -* United States, who was to distribute the same among the individuals entitled thereto, according to the determination of the arbitrators; and also that the consideration for the release and conveyance of the lands should, at the same time, be paid or secured to be paid, to the satisfaction of the secretary of war, the income of which was to be paid to the said nation annually. These conditions have been complied with by the purchasers. Ogden and Fellows had no interest whatever in the proportion of the improvement-m oney to which any individual Indian should be entitled. The arbitrators were to determine the gross amount of the improvement-money, and that was all which Ogden and Fellows were .interested in knowing. This the arbitrators did, and upon the payment of the amount, together with the other part of the purchase-money by Ogden and Fellows, their title and their right to possession of the forest or unimproved lands became complete, in one month after the filing of the report of the arbitrators, and to the improved lands, in two years. The question of the distribution of the money among the individual Indians, was. between them and the United States government, in which, as before remarked, Ogden and Fellows had no interest, and in reference to which, they had no duty to perform, except the payment of the money to the president of the United States. That could be done, when the gross amount of the value of all the improvements was ascertained and not before.

The ascertainment by the arbitrators of the amount to be paid for the title and improvements,, naturally, if not necessarily, preceded the division among the individuals of the tribe, of the improvement-money, which Ogden and Fellows could neither hasten or retard; and they were not bound to wait for it to be done, before paying their money and perfecting their title. For aught that appears, the division may yet be made by the same arbitrators, and there is no reason for doubting their readiness to perform that part of the duty referred to them, whenever those most interested in having it done will consent. If the plaintiff and his brethren of the Tonawanda band have not received the pay for their improvements, it is, most probably, attributable to their own *folly. The plaintiff appears to have been among the foremost in preventing the arbitrators from completing their work, and from doing that part of it which he now complains has not been done. Beyond a doubt, he should be held estopped from alleging, as a defect in his adversary’s title, an omission which he has deliberately contributed [*426 m procuring.

Other objections are now made to the title of Ogden and Fellows. It is contended, that there was no evidence upon the trial, to show that the individuals assuming to act as chiefs and headmen of the Seneca Nation were, in fact, authorized by the individuals of the nation to execute the indenture. It is sufficient to say, that the indenture was incorporated into and formed a part of the treaty of 1842; it was made at the same council of chiefs and headmen, at which the treaty was made; it was, in fact, the basis of the treaty. The individuals representing the nation at that treaty were then, and have been since repeatedly accredited and recognised by the United States government, as the ambassadors and agents of the nation for all the purposes of the treaty. When the treaty-making power of one government has accredited the envoy of another, and treated with, him as such, it is a fundamental principle, that the courts of the former cannot inquire into the authority of the envoy; the treaty is conclusive as to the authority of the persons assuming to represent the nation. The question of authority is one for the political department of the government to decide, and being so decided, the judicial department cannot review the decision.

The Indian tribes and nations within the bounds of the different states and territories of the United States have been regarded and treated by the general government as distinct nations, and treaties have, in numerous instances, been held with them as such, arid treaties thus made have always been considered as solemn and binding upon the government and its citizens, as treaties with other governments, or as acts of congress. A number of treaties-have been made by the United States with this same Seneca Nation, at all of which they have *been regarded as a government of chiefs and ' headmen, and have been invariably represented in such treaties by such chiefs and headmen, or by chiefs, headmen and warriors, or by chiefs and warriors.

I forbear any further notice of the objections raised upon the argument against the validity of the title of Ogden and Fellows, as it seems to me, they are all sufficiently answered in the several views already presented. I have regarded the one discussed by the supreme court, and upon which they held that title defective, to be the most important, and have confined myself mainly to its examination. I think, for the reasons mentioned, that the decision of the supreme court was erroneous, and that the judgment should be reversed, and a new trial granted, with costs to abide the event.

Per Curiam.

Resolved: 1. That the plaintiff, as an individual Indian, had the right of possession, and was in the lawful occupancy of the locus in quo, at the time of the alleged trespass. That this, right of occupancy was recognised by the fourth, fifth and seventh articles of the treaty of the 20th May 1842, mentioned in the bill of exceptions in this cause, and under which the defendants claim title.

2. That by the true construction of that treaty, the plaintiff could not be lawfully ejected from or deprived of the possession of the lands occupied by him, for the time and in the manner stated in the bill of exceptions, by the defendants, until the amount he was entitled to réeeive for his improvements “as an individual Indian,” should be determined by “the judgment and award of arbitrators, one of whom should be named by the secretary of the war department of the United States, and one by Ogden and the defendant Fellows,” in pursuance of the fourth article of said treaty.

*3. That, consequently, the making of such determination and award, and the filing of the *- same in the department of the secretary of war, in the manner prescribed by the fourth article of the treaty, was a condition precedent to a right of entry upon the part of the defendant Fellows, as survivor of T. L. Ogden, upon the locus in quo in the possession of the plaintiff.

4. That the acts of the plaintiff and others of the Tonawanda band of Indians, in resisting the entry of the arbitrators upon their reservation, for the purpose of appraising the value of their improvements in their possession, respectively, did not excuse Ogden and Fellows from a compliance with the condition precedent aforesaid: 1st, because said Indians, as individuals, were not parties to the compact and treaty aforesaid; and, 2d, because it was not shown by the evidence in the case, that an appraisal and award could not have been made by the arbitrators, without such entry.

Judgment affirmed

The plaintiff, John Blacksmith, died, after the rendition of the judgment, and a writ of error was sued out by the defendant, Fellows, who survived Robert Kendle, directed to the personal representatives of the original plaintiff, from the Supreme Court of the United States ; where, after argument by Messrs. Qillet and Brown, for the plaintiff in error, and by Mr. Martindale, for the defendant in error, the following opinion was delivered by-

Nelson, J.

(after stating the facts of the case.) — It will be seen, that the principal change under the second treaty consists in the release, by Ogden and Fellows, to the Indians, of two of the four reservations conveyed to them under the treaty of 1838, and the corresponding reduction of the price to be paid. Most of the other provisions of the treaty are untouched and remained in force; the assignment by the government of the large tracts of country for the New York Indians; the special tract therein assigned to this Seneca Nation; their agreement to remove to their new homes, and the large appropriation to aid in their removal, and in their support and encouragement, after they had arrived; all these provisions remained unaffected by the second treaty.

Neither treaty made any"provision as to the mode or manner in which the removal of the Indians, or surrender of the reservations, was to take place. The grantees have assumed, that they were authorized to take forcible possession of the two reservations, or of the four, as the case would have been under the first treaty. The plaintiff, in this case, was expelled by force; and unless this mode of removal can be sustained, the recovery against the defendants for the trespass was right, and must be affirmed.

The removal of tribes and nations of Indians from their ancient possessions to their new homes in the West, under treaties made with them by the United States, have been, according to the usage and practice of the government, by its authority, and under its care and superintendence. And, indeed, it is difficult to see how any other mode of a forcible removal can be consistent with the peace of the country, or with the duty of the government to these dependent people, who have been influenced by its counsel and authority to change their habitations.

The negotiations with them, as a quasi nation, possessing some of the attributes of an independent people, and to be dealt with accordingly, would seem to lead to the conclusion, unless otherwise expressly stipulated, that the treaty was to be carried into execution by authority or power of the government which was a party to it; and more especially, when made with a tribe of Indians who are in a state of pupilage, and hold the relation to the government of a ward to his guardian. It is difficult to believe, that it could have been intended by the government, that those people were to be left, after they had parted with their title to their homes, to be expelled by the irregular force and violence of the individuals who had acquired it, or through the intervention of the courts of justice. As we have seen, the Seneca Nation upon the four reservations consisted of a population of some 2633 souls; and, if we include the Tuscaroras, whose lands were also purchased, under the same treaty, nearly 3000. It is obvious, that such litigation would be appalling.

If we look into the provisions of the two treaties, we think the conclusion as clear, from a consideration of them, that no such means or manner of removal was contemplated, as that derived from a consideration of their unfitness and impropriety, under the circumstances stated.

The treaty of 1838 contemplated a removal to the tract west of the state of Missouri, and putting the Indians in possession of it. A large fund was appropriated, and in the hands of the government, to be disbursed in aid of such removal, and of their support and encouragement, after their arrival. It did not, therefore, separate these Indians from the care and protection of the government, on its ratification, but contemplated further duties towards them, and for which means were supplied. Besides, the purchase-money for the reservations was to be paid to the government; and, by the express terms of the treaty of 1842, the appraised value of the improvements was, on the surrender of the possessions, to be paid to the president of the United States, to be distributed among the owners of the improvements, according to the award of the appraisers. This provision shows, that the government was to be present at the surrender and payment for the improvements.

The clause in the treaty of 1838 is still more specific, which was, that the improvements were “ to be paid by the United States to the individuals who were entitled to the same,” &c., “ on their relinquishing their respective possessions to the said Ogden and Fellows.” It is also worthy of remark, that the St. Regis Indians, one of the nine tribes of the New York Indians, in giving their assent to the treaty of 1838, deemed it necessary to guard against a forcible removal to the west, by a clause providing that they “shall not be compelled to remove, under the treaty;” a removal to the west being in contemplation.

We think, therefore, that the grantees derived no power, under the treaty, to dispossess by force these Indians, nor right of entry, so as to sustain an ejectment in a court of law; that no private remedy of this nature was contemplated by the treaty, and that a forcible removal must be made, if made at all, under the direction of the United States; that this interpretation is in accordance with the usages and practice of the government, in providing for the removal of Indian tribes from their ancient possessions; with the fitness and propriety of the thing itself; and with the fair import of the language of the several treaties bearing upon the subject.

An objection was taken, on the argument, to the validity of the treaty, on the ground, that the Tonawanda band of the Seneca Indians were not represented by the chiefs and headmen of the band in the negotiations, and execution of it. But the answer to this is, that the treaty, after being executed and ratified by the proper authorities of the government, becomes the supreme law of the land, and the courts can no more go behind it, for the purpose of annulling its effect and operations, than they can behind an act of congress. (1 Cranch 103; 1 Pet. 735; 10 How. 442; 2 Pet. 307, 309, 314; 3 Story Const. Law, p. 695.)

The view we have taken of the case, makes it unnecessary to examine the ground upon which the learned court below placed their decision; that court held the appraisal of the improvements, and payment therefor, were conditions precedent to the surrender of them by the Indians; and that the refusal of the Tonawanda band to permit the appraisal did not excuse the performance of these conditions. The ground upon which we have placed our judgment, is not ■ in conflict with this view. We hold, that -the performance was not a duty that belonged to the grantees, but for the government, under the treaty. We think, the judgment of the court below was right, and should be affirmed.

Judgment affirmed. 
      
      
         It was subsequently decided by the supreme court of the United States, that the state had no right to tax these lands, whilst in the possession of the Indians, and before the expiration of the time fixed for their removal by the treaty; and that a sale for taxes, subject to-the Indian right of occupancy, was void, though it only operated upon the pre-exemption right of Ogden and Fellows. Fellows v. Denniston, 5 Wall. 761 ; reversing the judgment of the court of appeals, in 23 N. Y. 420. The Indians are the owners of their reservations, subject to the rights of sovereignty of the United States-. United States v. Foster, 2 Biss. 377.
     