People ex rel. Kennedy v. Becker

165 A.D. 881, 151 N.Y.S. 138, 1915 N.Y. App. Div. LEXIS 6476

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 1915
• Status: Published

Opinion

Per Curiam:

Robert Morris acquired from the Commonwealth of Massachusetts the right of pre-emption in certain lands in this State, of which the lands where the fishing was done are a part. He also acquired the Indian title under sanction of proper Federal authority, by an instrument in writing dated September 15, 1797 (Report of .Special Committee appointed by Assembly of 1888 to investigate the Indian Problem, p. 131; Assembly Documents, 1889, vol. 7, No. 51, pp. 131-134), by which the Seneca Nation of Indians granted to him, his heirs and assigns forever, said land and all of their right, title and interest therein, reserving to them the privilege of fishing and hunting thereon.

We are of the opinion that the Indians, having parted with their right of occupation and all of their interest in the lands, the privilege of hunting and fishing thereon is subject to control and regulation, by the State. Even assuming that the Indians have the unrestricted right to hunt and fish upon their own reservation without interference by the State, these lands are not within the bounds of their reservation and are in no sense Indian lands. But the question as to whether the Indians have the unrestricted right to hunt and fish upon their own reservation is not involved in this controversy, and that question we do not decide.

The order should, therefore, be reversed, the" writ of habeas corpus dismissed and the three Indians upon whose behalf the writ was granted remanded to the custody of the sheriff of Erie county.

All concurred, except Merrell, J., who dissented. Order reversed, writ of habeas corpus dismissed, and the persons upon whose behalf the writ was issued are remanded to the custody of the sheriff of Erie county.