The proceeding was brought to recover the possession of certain lands situate on the Tuscarora Indian Reservation, in the town, of Lewiston, Niagara county, consisting of about twenty-thrée acres of farm land, with buildings thereon, and occupied for . .many years by Jeremiah Peters, a Tuscarora Indian,' up to tlie time of his death in March, 1900. Both the petitioner and the defendant are Tuscarora Indians; the defendant is his. daughter and the. petitioner is his daughter-in-law. , -
No evidence was given on behalf of the defendant, but she contended and now insists that the* courts of this State have not jurisdiction, for the reason that the parties to the controversy are Indians, *310and that the premises are Indian tribal lands. The. justice' of the peace overruled her objections, and awarded possession of the lands to the petitioner, but upon .appeal the County Court reversed the' judgment (52 Misc. Rep. 617), and. the petitioner how appeals to this court.
It appears that'Jeremiah Peters occupied the premises for upwards of twenty-eight year's, claiming to own the same under an allotment thereof, made to him by-the chiefs or head men of the Tuscarora Indians. After the death of Jeremiah Peters, which occurred in March, 1900, his soli, the petitioner’s husbaiid, occupied and claimed to own' the premises, the, same having been devised to him by his' father. The petitioner Occupied tlie -premises with her husband tin til the husband became insane, in 1905, when he w;as confined in an' asylum, where he remained for about a year, when he died, his death occurring in,- March, 1906. After his confinement in the asylum his wife continued to occupy the premises with their infant daughter until about two or three weeks after the .death of lier husband, when she was ousted by the defendant.
It. further appears that ■ while the petitioner was temporarily absent from the house situate upon the premises, the defendant broke into the house-and took possession' óf the same; Upon being asked to give up possession of- the premises ;and the things in. the house, the defendant refused to move from the.house, or even to-give up possession of the petitioner’s furniture and goods, consisting of a stove, bedstead, dishes, cupboard) sewing machine and some chairs. • >
The petitioner claims she was entitled to the possession of the premises ; tliat in addition to her dower she had the widows’ quarantine right, which continued for forty days after the death of her husband (Real Prop. Law, § 184; Fowler Real Prop. [2d ed.] 599, 600), and was the guardian in-socage of her infant, child (Dom. Rel. Law, § 50), which enabled her to recover ¡ possession of the infant’s lands,. (Foley v. Mutual Life Ins. Co., 138 N. Y. 333, 339.)
It is unnecessary to define or classify the precise right that Jeremiah Peters had in . the land under the allotment so made to him. That it was a substantial right entitling him to the exclusive possession thereof seems clear. As early as 1854 the Legislature *311evidently recognizing the change in the manner and custom of these Indians, permitted allotments of this character to be made by tiie chiefs (Laws of 1854, chap. 175, § 1), and such an’allotment is now sanctioned by the Indian Law (Laws of 1892, chap. 679, §§ 7, 90). The same law .expressly authorizes a native Indian to take, hold and convey real property the' same .as a citizen (§ 2), and the right of an Indian under such an allotment of tribal lands has been recognized and protected by our state courts. (Jimeson v. Pierce, 78 App. Div. 9.) The right of the son and his family to occupy and enjoy the lands so devised to him by his father does not appear to have been questioned by the chiefs, or any one else save the defendant, and she does not seem to'have asserted any claim to the property until after the death of her brother.
In the absence of any right thereto, I think it clear that the defendant was not justified in ousting the petitioner fi*oin the premises as she did, and that the petitioner is entitled to the possession of the lands as against the defendant; -the undisputed evidence-shows that the defendant intruded into and squatted upon the premises without any' right thereto.
The more serious question, however, is whether the petitioner may resort to the courts of this State for the enforcement of her right against the defendant. If she may not have redress in our courts, she appears to be remediless, since the proof shows that, unlike some of the other Indians, the Tuscarora Indians have no peacemakers’ court, or other judicial tribunal of their own to which the petitioner may resort for the enforcement of her right. While these Indians may voluntarily -submit matters in controversy to their chiefs, neither party to a controversy can be compelled to do so, as the proof shows; and there is no claim that the defendant has offered to so submit the .matter, evidently for the very obvious reason-that she is now in possession of the property, and there is no need of submitting the matter in controversy for determination if she can hold and enjoy the property thus wrongfully taken from the petitioner without being amenable to judicial proceedings.
I am,.however, of the opinion that the defendant is not beyond the reach of our State courts,..and that the petitioner may resort thereto for the enforcement of her right to the possession of these premises against the defendant. Section 5 of the Indian Law *312provides as follows: “ Any demand or right of action, jurisdiction of which is not conferred upon a peacemakers’ court, may be prose cuted and enforced in any court of the State, the same as if all the parties thereto were citizens.”
As regards certain Indian reservations having courts of their own, provision is .made in the Indian Law of our State for. the enforcement of the determinations of such Indian courts, by appropriate proceedings in our State courts (§ 53), as was done' in the case of Jimeson v. Pierce (supra). . Such courts have' long been maintained by the Seneca nation of Indians, and are recognized- in our Indian Law (Laws of 1892, chap. 679, art, 3),..But no such provision is contained therein regarding the Tus'carora Indians. -
While the record itself contains little if anything beyond what has .already been, stated regarding the .status .of the Tuscarora Indians, it is evident that they are farther advanced in civilization and their tribal relations less intact than fhat of the larger reservations. - In the report of the committee of the Assembly, made in 1889, to which both counsel refer, it is stated that they are -more enlightened and better educated than any other reservation in the State. They came originally from North Carolina, and acquired their lands by purchase from the Seneca nation of Indians and the Holland Land Company. These lands, consisting of about 6,00.0 acres,, have been quite generally allotted among the individual Indians, who have occupied arid improved the same.
■ To leave these Indians without adequate means for the protection of, their rights, thus permitting the indolent and evil-disposed Indians to wrong the. thrifty and the honest with impunity, presents a situation so deplorable and disastrous in its consequences that wé ought not to reach that conclusion if it can be avoided. I realize that if the deficiency is in the law itself the remedy is with the law-making power andnot the judiciary, but the very purpose of the statute in permitting an Indian to resort to our courts in the ’ first instance,.or to enforce a determination of a peacemakers’ court, was to afford an adequate remedy by a proper judicial proceeding, This is not a case where tile petitioner’s right of- action contravenes some cristom or law of the tribe to which she belongs. . The proof shows that this property was being held and enjoyed -quite in accordance with the customs and practices recognized by. the Indians them-*313selves. The question here presented'is whether she may resort to our courts to vindicate such right.
In Jimeson. v. Pierce (supra), where the right to hold in severalty lands upon the Cattaraugus Indian Reservation was upheld, Mr; Justice Williams, speaking for this court, says: “For many years the Legislature has passed laws for the protection of the rights and property of these Indians and the enforcement of such rights under the laws so passed.' We see no reason why such laws should not be regarded as valid, and should not be enforced. While it has been frequently held that Indians cannot come into our courts and bring actions in the absence of acts of the Legislature enabling them to do so, yet it has always been held that they can do so under enabling acts when they have been passed.”
■ I think the petitioner’s case is within the provisions of the statute and that the judgment of the County Court should be reversed, and the final order of the justice of the peace should be affirmed, with costs.
All concurred, except MoLenhah, P. J., who dissented in an opinion.