New York ex rel. Cutler v. Dibble, 1858

62 U.S. (21 How.) 366 (1858)

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. A treaty provision permitted the transfer of the lands of the Tonawanda Seneca to the Ogden Land Company subject to some preconditions. The Seneca on the Tonawanda Reservation asserted that the treaty was invalid with regard to the Tonawanda lands because their Sachem had not been a party to the treaty negotiations or a signatory of the document.

Following a consultation with attorney John H. Martindale, Sachem Ely S. Parker and other New 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, Blacksmith v. Fellows 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.

In Cutler, Martindale, then district attorney of Genesee County, New York, brought suit on behalf of the Seneca against Asa Cutler, John Underhill, and Arza Underhill. The 1821 law prohibited non-Indians from settling or residing on lands belonging to or occupied by the Seneca and provided that the County Court should issue a warrant directing the sheriff to remove such persons. The defendants claimed that they had title to the lands under the Treaty of Buffalo Creek, and requested a jury trial. The County Court found in favor of the Seneca, and the proceedings came before the New York Supreme Court on a writ of certiorari.

The New York Supreme Court heard extensive testimony and held that “the Seneca nation had not duly granted and conveyed the reserve in question to Ogden and Fellows.” The New York Court of Appeals affirmed, holding that the 1821 New York statute did not violate the New York Constitution, and that the defendants had not acquired property rights. The opinion written by Judge John Brown, from which Chief Judge Hiram Denio and Judge Alexander Johnson dissented, stated that:

The case of Blacksmith v. Fellows was removed into the Supreme Court of the United States, and there reviewed and affirmed (19 How. U. S. R., 366). The following paragraph from the opinion of Mr. Justice Nelson embodies the rule of law as well as the rule of action which has hitherto guided the government in its intercourse with the Indian tribes: “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 articles bearing on the subject.”

The Court held that the judgment and proceedings of the courts below should be confirmed.

The U.S. Supreme Court granted a writ of error to the defendants, and following argument before the Court, Justice Robert Cooper Grier delivered a unanimous opinion affirming the judgment of the New York Court of Appeals. The Court examined whether the State statute and proceedings had violated any federal law or federal constitutional provision of the United States treaty, and concluded that the 1821 New York statute was a constitutional exercise of the State’s police power: “The power of a State to make such regulations to preserve the peace of the community is absolute, and has never been surrendered. The act is therefore not contrary to the Constitution of the United States.” The Court cited the Fellows case as precedent and reiterated the importance of the trust relationship between the federal government and the tribes.

Subsequently, Parker, Martindale and other Seneca representatives met with President Buchanan and members of Congress and reached a final resolution of the issue. The Seneca gave up their rights under the Buffalo Creek treaty to the lands in Kansas and, in return, were allowed to use the federal relocation funds to “purchase” their lands from the Ogden Land Company.



Proquest. Confining Indians: Power, Authority, and the Colonialist Ideologies of Nineteenth-century Reformers. (2008)

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