7 N. Y. 401 (1852)
Fellows v. Blacksmith, 60 U.S. 366 (1857)
The Treaty of Buffalo Creek (1838) provided for the removal of the Seneca from their lands in the eastern United States to lands situated in modern-day Kansas. The Ogden Land Company claimed that a provision of the treaty permitted them to purchase the lands of the Tonawanda Seneca subject to some preconditions. The Tonawanda Seneca asserted that the treaty was invalid with regard to the Tonawanda lands because their Sachem had not been party to the treaty.
Following a consultation with attorney John H. Martindale, Sachem Ely S. Parker and other New York Seneca leaders decided to deal with future incursions on their lands by the Ogden Land Company through the State courts, suing for trespass as permitted under an 1821 New York statute. In all, four lawsuits were commenced—two failed to bring about the desired result, but in the other two, Fellows v. Blacksmith and New York ex rel. Cutler v. Dibble, the Seneca prevailed in both the New York courts and in the Supreme Court of the United States.
On July 13, 1846, Joseph Fellows, claiming title to the Seneca lands had been vested in him by a deed of conveyance made pursuant to the 1838 treaty, went on to the Seneca land on which John Blacksmith, a Tonawanda Seneca, had constructed a dam, sawmill and yard on an enclosed tract of land within the 12,800 Tonawanda Reservation in Pembroke, Genesee County, New York. Accompanied by his servant Robert Kendle, the two men, “with force of arms,” coerced Blacksmith to leave the sawmill and yard.
John Blacksmith, represented by attorney John H. Martindale, brought suit against Fellows for common law trespass, assault and battery. At the conclusion of the trial, the jury returned a verdict in favor of John Blacksmith, and Fellows appealed to the New York Supreme Court, General Term. That court denied his application for a new trial on the ground that payment of the appraisal value of improvements to the land by the Seneca, as determined by the arbitrator under the treaty, was a condition that must be fulfilled (a condition precedent) before the conveyance could take effect. The facts of the case showed that the arbitrator had not set a value on Blacksmith’s dam, sawmill and yard, and no payment had been received by the Seneca. The defendant then appealed to the New York Court of Appeals.
The case came before the Court during the October term of 1852. Fellows was represented by J. C. Spencer and Blacksmith by Mr. Martindale. The Court held that Blacksmith, because of his right to possession of the sawmill and yard, could bring a claim for trespass against Fellows. The Court also affirmed that Fellows did not have title to the Seneca lands because the payment of compensation to the Tonawanda Seneca under the 1838 treaty was a precondition (condition precedent) to the validity of the conveyance.
Judge John Worth Edmonds delivered the opinion of the Court, from which Judge Henry Welles dissented. The Court affirmed the judgments of the courts below and remanded the case to the New York Supreme Court.
The United States Supreme Court granted a writ of error, and the appeal was heard by that Court in the December Term of 1856. Rather than focusing on the validity of the land conveyance to Fellows, the Court, in a unanimous opinion delivered by Justice Samuel Nelson, examined whether Fellows had the right under the treaties to dispossess the Seneca of their lands. He wrote:
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.
In a later section of the opinion, he stated:
We think, therefore, that the grantees derived no power, under the treaty, to dispossess by force these Indians, or 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 articles bearing upon the subject.
The United States Supreme Court held that that no private remedy of forcible removal was contemplated by the treaty. The opinion concluded as follows:
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 right, and should be affirmed.