Bartlett, J.
This appeal is taken by permission of the Appellate Division,- which certified three questions to this ■court: (1) Has the plaintiff in this action legal capacity to ¡sue? (2) Is there- a defect of the parties plaintiff in this •action, in that the members of the alleged Montauk Tribe of Indians are not made parties plaintiff ? (3) Does the complaint herein state facts sufficient to constitute a cause of •action ?
This is an action of ejectment brought by the plaintiff, a ■citizen of the United States of Indian-blood, and'.'liñéage and .a member of the Montauk Tribe of Indians by right of birth and affiliation, on behalf of himself and all other persons •equally interested with him, who may come in and contribute to the expenses of the action.
The demurrer contains a number of grounds stated in detail why the plaintiff cannot maintain this action.
The single question presented is, whether the plaintiff as a member of this tribe of Indians can maintain ejectment on behalf of the tribe in the form of action already described.
The Special Term sustained the demurrer to the complaint, but the Appellate Division, with a divided court and expressing the opinion that the plaintiff’s right is not free from doubt, reversed the interlocutory judgment on the ground that this action is brought in accordance with the views expressed on a prior appeal.
Justice Willabd Babtlett dissenting was of the opinion that the complaint in the present action was not framed in accordance with the previous decision.
The prior appeal referred to was in the case of
Montemk Tribe of
Indiems, by Wyandank Pharoah, their chief, and king, against the present corporation defendant. (28 App. Div. 470.)
In that case a demurrer was sustained to the complaint on the ground that the plaintiff had no legal capacity to sue, and the Appellate Division affirmed the interlocutory judgment to that effect.
Cullen, J., who wrote the opinion of the court, in which all of the justices concurred, said : “ It is not worth while to enter upon any discussion of the
status
of the Indian tribes within this state, as we think that on the question now before us we are concluded by authority. In
Strong
v.
Waterman
(11 Paige, 607) it was held that, while the Indians had the undoubted right to the beneficial use and occupancy of their lands, no provision had been made by law for bringing ejectment to recover possession of them; that as a body or tribe, the Indians have no corporate name by which they can institute such a suit.”
The learned judge then pointed out that the same doctrine had been laid down in
Seneca Nation
v.
Christie
(126 N. Y. 122.)
That was an action of ejectment brought by the Seneca ISTation of Indians to recover certain lands in Erie county, and this court held that the right of the plaintiff to sue in that form was given by, and was dependent upon a statute,
which was a special act for- the protection and improvement of the Seneca Indians residing on certain reservations in this state. (Chap. 150, Laws 1845.)
Judge Andbews, who wrote the opinion of the court, cites on this point the case of
Strong
v.
Waterman (supra)
undoubtedly to show that under the law of the state as it then stood, this action could not be maintained by the Indian tribe, except bythe provisions of an enabling act.
Ip the case of
Strong
v.
Waterman (supra)
the action was brought by Strong and Gordon, chiefs of the Seneca Ration of Indians against a white man for an injunction restraining him from committing trespasses and waste upon the reservation of the ti’ibe and from interfering with its possession.
The, immediate proceeding was- a motion to dissolve this injunction. The chancellor, in the course of his opinion, states; “Ro provision, however, has been made by law for the bringing an ejectment to recover the possession of Indian lands in the Cattaraugus reservation. For the right to the possession is. in several thousand individuals in their collective capacity; which individuals, as a body, have no-corporate name by which they can institute an ejectment suit. * * * The Indians cannot therefore institute a suit in the name of the tribe; but they must sue in the same manner as other citizens would he required or authorized to sue; for the protection of similar rights.” - ,
It was, therefore, held that the two persons named as complainants, having been authorized by the council of chiefs, might file a bill for an injunction, to which reference has been made, to protect their possession. This was placed expressly upon the ground that if the common law furnished no sufficient protection of thp rights of the tribe it is a part of the acknowledged jurisdiction of equity to interpose for its relief.
The learned chancellor evidently recognized a broad distinction between the rights of the tribe in defending its possession of lands and bringing ejectment to secure possession.
We have been cited to no statute nor to any controlling decision authorizing the present action.
The respondent has referred to certain sections of the Indian Law as tending to authorize this action, more particularly section 11 thereof, relating to trespasses on tribal lands, which provides that an action may be brought in the name of the People of the state against any person other than an Indian trespassing upon the tribal lands, by the district attorney of the county, or in the name of the nation, tzibe or band, by any thz*ee of the chiefs, head men or councilloz-s thez'eof, etc.
This section obviously has no application to the present situation, and substazztially existed as section 8 of chapter 234 of the Laws of 1841, which was in force four years before the decision of
Strong
v.
Waterman (supra).
It is a clear z-ecognition of the necessity for legislation in the preznises at that eaz-ly day.
In the opinion to which reference has already been znade, Justice Ohllbn said (28 App. Div. 472): “ Still the Indians are not without redress. They znay apply to the legislatuz-e for authority to maintaizz an action like the pz’esent,
or it may be
that, under the authority of
Strong
v.
Waterman (supra),
'an action znight be instituted by ozze of their number ozi his own behalf and on behalf of the other Indians of his tribe.”
This is evidently the view expressed on the prior appeal, which led the Appellate Division, in the order we are reviewing, to hold that this plaintiff had legal capacity to sue.
It is to be observed that the learned judge, after referrizzg to the undoubted right of the legislature to authorize the action, merely suggested that, under the authority of
Strong
v.
Waterman (supra),
it znight be that an action like the present could be instituted. The expression is evidezitly intended as a view of the case, concerning which the writer was in doubt.
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Bartlett, J.
This appeal is taken by permission of the Appellate Division,- which certified three questions to this ■court: (1) Has the plaintiff in this action legal capacity to ¡sue? (2) Is there- a defect of the parties plaintiff in this •action, in that the members of the alleged Montauk Tribe of Indians are not made parties plaintiff ? (3) Does the complaint herein state facts sufficient to constitute a cause of •action ?
This is an action of ejectment brought by the plaintiff, a ■citizen of the United States of Indian-blood, and'.'liñéage and .a member of the Montauk Tribe of Indians by right of birth and affiliation, on behalf of himself and all other persons •equally interested with him, who may come in and contribute to the expenses of the action.
The demurrer contains a number of grounds stated in detail why the plaintiff cannot maintain this action.
The single question presented is, whether the plaintiff as a member of this tribe of Indians can maintain ejectment on behalf of the tribe in the form of action already described.
The Special Term sustained the demurrer to the complaint, but the Appellate Division, with a divided court and expressing the opinion that the plaintiff’s right is not free from doubt, reversed the interlocutory judgment on the ground that this action is brought in accordance with the views expressed on a prior appeal.
Justice Willabd Babtlett dissenting was of the opinion that the complaint in the present action was not framed in accordance with the previous decision.
The prior appeal referred to was in the case of
Montemk Tribe of
Indiems, by Wyandank Pharoah, their chief, and king, against the present corporation defendant. (28 App. Div. 470.)
In that case a demurrer was sustained to the complaint on the ground that the plaintiff had no legal capacity to sue, and the Appellate Division affirmed the interlocutory judgment to that effect.
Cullen, J., who wrote the opinion of the court, in which all of the justices concurred, said : “ It is not worth while to enter upon any discussion of the
status
of the Indian tribes within this state, as we think that on the question now before us we are concluded by authority. In
Strong
v.
Waterman
(11 Paige, 607) it was held that, while the Indians had the undoubted right to the beneficial use and occupancy of their lands, no provision had been made by law for bringing ejectment to recover possession of them; that as a body or tribe, the Indians have no corporate name by which they can institute such a suit.”
The learned judge then pointed out that the same doctrine had been laid down in
Seneca Nation
v.
Christie
(126 N. Y. 122.)
That was an action of ejectment brought by the Seneca ISTation of Indians to recover certain lands in Erie county, and this court held that the right of the plaintiff to sue in that form was given by, and was dependent upon a statute,
which was a special act for- the protection and improvement of the Seneca Indians residing on certain reservations in this state. (Chap. 150, Laws 1845.)
Judge Andbews, who wrote the opinion of the court, cites on this point the case of
Strong
v.
Waterman (supra)
undoubtedly to show that under the law of the state as it then stood, this action could not be maintained by the Indian tribe, except bythe provisions of an enabling act.
Ip the case of
Strong
v.
Waterman (supra)
the action was brought by Strong and Gordon, chiefs of the Seneca Ration of Indians against a white man for an injunction restraining him from committing trespasses and waste upon the reservation of the ti’ibe and from interfering with its possession.
The, immediate proceeding was- a motion to dissolve this injunction. The chancellor, in the course of his opinion, states; “Ro provision, however, has been made by law for the bringing an ejectment to recover the possession of Indian lands in the Cattaraugus reservation. For the right to the possession is. in several thousand individuals in their collective capacity; which individuals, as a body, have no-corporate name by which they can institute an ejectment suit. * * * The Indians cannot therefore institute a suit in the name of the tribe; but they must sue in the same manner as other citizens would he required or authorized to sue; for the protection of similar rights.” - ,
It was, therefore, held that the two persons named as complainants, having been authorized by the council of chiefs, might file a bill for an injunction, to which reference has been made, to protect their possession. This was placed expressly upon the ground that if the common law furnished no sufficient protection of thp rights of the tribe it is a part of the acknowledged jurisdiction of equity to interpose for its relief.
The learned chancellor evidently recognized a broad distinction between the rights of the tribe in defending its possession of lands and bringing ejectment to secure possession.
We have been cited to no statute nor to any controlling decision authorizing the present action.
The respondent has referred to certain sections of the Indian Law as tending to authorize this action, more particularly section 11 thereof, relating to trespasses on tribal lands, which provides that an action may be brought in the name of the People of the state against any person other than an Indian trespassing upon the tribal lands, by the district attorney of the county, or in the name of the nation, tzibe or band, by any thz*ee of the chiefs, head men or councilloz-s thez'eof, etc.
This section obviously has no application to the present situation, and substazztially existed as section 8 of chapter 234 of the Laws of 1841, which was in force four years before the decision of
Strong
v.
Waterman (supra).
It is a clear z-ecognition of the necessity for legislation in the preznises at that eaz-ly day.
In the opinion to which reference has already been znade, Justice Ohllbn said (28 App. Div. 472): “ Still the Indians are not without redress. They znay apply to the legislatuz-e for authority to maintaizz an action like the pz’esent,
or it may be
that, under the authority of
Strong
v.
Waterman (supra),
'an action znight be instituted by ozze of their number ozi his own behalf and on behalf of the other Indians of his tribe.”
This is evidently the view expressed on the prior appeal, which led the Appellate Division, in the order we are reviewing, to hold that this plaintiff had legal capacity to sue.
It is to be observed that the learned judge, after referrizzg to the undoubted right of the legislature to authorize the action, merely suggested that, under the authority of
Strong
v.
Waterman (supra),
it znight be that an action like the present could be instituted. The expression is evidezitly intended as a view of the case, concerning which the writer was in doubt. As already intimated, we do izot regard
Strong
v.
Waterman (supra)
as authoz-izing this action.
A decision holding that this action could be znaizztained ■ either by the tribe, or an individual zzieznber thereof, on behalf of himself and all others who should come izz and contzibute, would be cozztrary to the policy azzd pz’actice which have been long established in our treatment of the Indian.
tribes. They are regarded as the wards of the state, and generally speaking, possessed of only such rights to appear and litigate in courts of justice as are conferred upon them by statute.
It is conceded by the complaint in this action “ that the tribe have no legal capacity to sue therefor and have no corporate name by which they can institute such a suit.”
The theory of an action by one for the benefit of all is, that where a large number of persons, not incorporated, are vested with a cause of action, it may be enforced in that manner, but when it is admitted, as in this case, that the tribe has no cause of action, it follows, logically, that no one member of the tribe could sue for the benefit of all, as the cause of action does not exist.
We are of opinion, however, that the Montauk Tribe of Indians are not without legal redress in the premises, as by an application to the legislature an enabling act can be obtained allowing action to be brought on behalf of the tribe, in the name of its chief or head, or in the name of such member or members thereof as may be selected.
It is much better that this course should be pursued than to sustain an action in the present form, which it is conceded by the learned court below is not free from doubt, and which we regard as contrary to long-established public policy.
We answer the three questions certified to us in the negative.
The order appealed from should be reversed and the interlocutory judgment affirmed, but, under the circumstances, without costs to either party in this court.
O’Bbien, Haight and Martin, JJ., concur, and Parker, Oh. J., concurs in result; Vann and Landon, JJ., dissent.
Order reversed, etc.