(dissenting):
It seems to me that the decision about to be rendered in this case is not supported by authority; that no well-considered decision can be found which holds that the courts of this State have jurisdiction to settle disputes between Indians residing upon their respective reservations and which.relate solely to the occupancy or possession of the lands of such reservations; and that the' reasons assigned. for such decision, as recited in the prevailing opinion, are not sufficiently forceful to justify the same.
The facts are stated in the opinion of the court with substantial, accuracy and need not be repeated.. It may be assumed, as there pointed out, that plaintiff’s rights, if measured by the laws of this State applicable to the possession of real property as between citizens, have been flagrantly violated by the def endant; that the equities, as defined by our system of jurisprudence, are with the plaintiff; and that any court should be glad to give relief in the premises" if it has the power so to do. The question, however, presented by this appeal is not one of equity, but is, have the courts of this State *314jurisdiction''in the premises? ' Or, to be more specific, has a justices of the-peace jurisdiction to determine as between two Indians, -both members of the Tuscarora tribe Ur nation and residing upon, its reservation, .who of such Indians- is entitled to the' occupancy and possession, of-a certain part or portion of such reservation ?; ■
This is a summary proceeding for the recovery of real property, instituted pursuant to the provisions of title 2 of chapter 17 of the Code of Civil Procedure. It was commenced and prosecuted in all respects precisely as if the controversy existed between citizens -of his'State and related to property exclusively within its-jurisdiction. If a dispute between Indians.such as ishereinvolvedmay. be settled by our courts, it necessarily follows that' all rights or causes - of action given by the sections, of the Code relating tó “ summary proceedings' to recover.the possession of real property” are. available to all Tuscarora Indians and to the members of every other tribe- or nation of Indians within the 'State where a' peacemakers’ court has not béen'established' and given jurisdiction' of the subject-matter, notwithstanding such Indians reside upon their respective reservations and the dispute between them arises-'over the possession of -a part of such reservations. ■
If a justice of the. peace has jurisdiction as. between two Indians °to determine that one has “ unlawfully entered into or squatted upon .real property (a part of; the reservation) without the permission of the other,” to award possession thereof to .one as against the other under- subdivision 4 of section 2232 of the Code of Civil Procedure, as claimed by the appellant, and to enforce his judgment in the -premises, such justice has equally jurisdiction to determine all disputes arising-between Indians respecting the possession of the lands of their respective reservations for any .of the causes enumerated in the sections of the'Code embraced • within the title to which attention has been called. And’ if such power exists it is' readily seen that for one cause or another a justice ofvthe peace of a town-in which a reservation belonging'to Indians is located may award the possession of. any part of such- reservation to' particular Indians without regard -to the customs of ; the tribe or nation or to their laws which have governed the occupancy of their lands from time immemorial. . . •
The claim that the courts of this . State have such-jurisdiction^ it *315seems to me is preposterous. The Legislature never intended such result, and any enactment susceptible of such interpretation would be at variance with the settled policy of the State in its treatment of Indians residing iipon reservations within its borders. The various nations or tribes of Indians have ever been regarded by the State as separate and distinct sovereignties, having the power to negotiate treaties with it, which is the broadest recognition of such sovereignty. As was said by Justice Mullett more than a half century ago in Dole v. Irish (2 Barb. 639, 642) : “ Still, our intercourse with them has been in their national capacity. We have regarded them as nations having some_ sovereign power and have permitted them to exercise that power over their own internal affairs. We have not attempted to extend our laws to their domestic relations or to regulate the manner of their acquiring, holding or conveying property among themselves. We have never 'applied our doctrines of descent or distribution ■ to their property, nor subjected them to our laws relating, to wills, intestacy or, administration ; nor are they applicable to their state of society. So .far from interfering with their pecuniary affairs or subjecting their persons or property to the civil jurisdiction of our courts, we have declared that no action shall be maintained against one of these Indians on his contract.”
The whole trend of judicial decision by the courts of this State has been to like effect, practically that we have no jurisdiction over the lands of Indians or to regulate their internal affairs except as given us by treaty or such as may be exercised under the police power of the State for their protection or is reasonably necessary for our protection against their unlawful acts or encroachment.
The attempted exercise of jurisdiction by the justice of the peace in this proceeding is in violation, of the principle enunciated in Dole v. Irish (supra). Such justice did attempt “ to extend our laws * * * to regulate the manner of their (the Indians) acquiring, holding or conveying property among themselves.” We are not concerned as to how or in what manner the dispute between the parties to this proceeding might have been settled if relegated to the-courts or customs of the Tuscarora nation. Whether it would have been settled more or less in accordance with the principles of justice it is not important to inquire. By the brief of *316counsel in the cáse of Dole v. Irish (supra) we are told “ That it is a custom among the Seneca Indians, which has existed from time immemorial, when one of the said nation dies for the relatives of the deceased to meet at his last place of residence ten days after his death and divide his property among his relatives,” which I assume includes the right of possession. Such method of distribution of a decedent’s estate had the merit, at least, of being speedy, final and' inexpensive. We may fairly assume that during the century or more that the Tusearora tribe 'of Indians have occupied their reservation in Niagara county, some méans has existed for the settlement of disputes between themselves,, especially those' relating to the occupancy of their tribal lands, which has been reasonably efficient and satisfactory to all concerned. At all events, so far as we can discover, this is the first time that an attempt has been made to settle such'disputes in our courts, and such attempt cannot be considered as entirely satisfactory, for it is apparent that the costs and expenses already incurred in this proceeding, and Which are allowed by our Code, will amount to more than the entire value of the right which it is brought to enforce. This suggestion leads, to the query whether or not'if final judgment is rendered in plaintiff’s' favor, adjudging that she is entitled to the possession of tlie'premises in question, such right of possession may not be decreed to be sold and the proceeds applied in payment of ¡tire services rendered by her' attorney, and to which lie is entitled by the provisions of the. Code under which the proceeding is brought. It would indeed be an anomalous situation if such proceeding might' be instituted under the sections of the Code, to .which attention has been called, to recover the possession of real property, a valuable-right, and if successful, the costs given by the same statute could not be Collected. Yet we fancy it will hardly be claimed that execution could law-' fully be issued against either of these parties for the collection of the costs given by the statute. In such case would the provision of the judgment awarding possession of the real-property be enforcible and not the provision awarding costs ? Such suggestion indicates' the incongruities- which would result if it be the rule that our laws relating to the recovery of the possession of- real property as between citizens are alike applicable to Indians and to their tribal lands. We can conceive of no good reason for the adoption of such rule *317unless made necessary by express statutory provision. I do not believe there is any statute which is properly susceptible of such interpretation. As was said in Dole v. Irish (supra, p. 642): “Farther exercise of jurisdiction may still be necessary, until all vestiges of Indian power and Indian rights shall be brought under the broad shield of our civil jurisprudence—but when, and how, it shall become necessary or proper to seize on this dilapidated Indian sovereignty, are questions to be decided by the Legislature; and it does not become the judiciary, voluntarily, to march forward in such enterprises.”
It must be conceded that the justice of the peace in the case at bar was wholly without jurisdiction of the parties or of the subject-matter of the controversy unless expressly given by statute. (Code Civ. Proc. § 2861.) The only legislative enactment by which it is claimed jurisdiction is conferred is section 5 of the Indian Law, which provides: “ Any demand or right of action, jurisdiction of which is not conferred upon a peacemakers’ court, may be prosecuted and enforced in any court' of the State, the same as if all parties thereto were citizens.” It would seem, clear that such provision has reference only and relates solely to an Indian nation in which' a peacemakers’ court has been established, and was intended to cover only such disputes arising between the members of such nation as such peacemakers’ court, through inadvertence or otherwise, had not - been given jurisdiction of. The old methods of adjusting such disputes having been abrogated by the creation of a peacemakers’ court, it is entirely reasonable that any matter, jurisdiction of which was not giv'en to such court, might be referred to our courts for settlement. The Legislature did not intend by the enactment of such section - to oust all other Indian nations in which no peacemakers’ court has been established of jurisdiction over their internal affairs. Tet such is the broad scope of the decision about to'be rendered. Ooncededly no peacemakers’ court has been established in the Tuscarora nation, and so, of course, no jurisdiction of anything has been or can be conferred upon it. Tet it is urged that the result of such situation is that the courts of this 'State ai;e given jurisdiction of all matters relating to the affairs of such nation because of the language of the section. If by such section the courts of this State are given any jurisdiction; even the *318slightest, their jurisdiction is absolute and extends to every controversy which may arise between the members of such tribe, because such jurisdiction, has not been conferred upon the peacemakers’ corfrt, for, as'stated, no such court has been created.
. The.majority of this court interpret section 5- of the Indian Law above quoted to mean precisely what it would mean if its.language were.: “ In all Indian nations within the State in which a peacemakers’ court has not been established, all jurisdiction by the members of. such nations over their internal affairs is abrogated and is conferred upon the. courts of this' State.” It is absurd to suggest any limitation of jurisdiction of our courts over “ any demand or right of action ” in favor of' an Indian, á member of and residing in. a nation in which no peacemakers’ court exists if the words “peacemakers) court” as used in the section apply td such- nation the samé as to one in which such a court has been established. If the meaning of section 5 is as claimed by a majority of the 'court, by that act the Legislature swept away every vestige of Indian sovereignty, iri-all the nations within the State except in the Seneca nation, in which alone a peacemakers’ Court has been established, for if jurisdiction of “ any.demand or right of action” existing between members of a tribe or nation is taken from it and conferred upon our courts, then indeed “ all vestiges of Indian power and Indian rights shall be brought under the broad shield of our civil jurisprudence.”
Tile only peacemakers’. court to which the section relates was established in 1868 in the Seneca nation. It was created solely -for their benefit and purposes. • It came into existence by virtue of section 4 of their amended constitution,'V made and adopted in convention assembled duly called and organized in accordance with the provisions of the constitution of said ¡Nation, convened at the Council House at Cold Springs,, on the Alleghany ¡Reservation, on. the 22d day of October, a. d. 1868.” (Rep. of Special Com. on Indian Problem, 397, Assembly Doc. 1899, No. 51.) In the> preamble it is recited : “ We, thepeopleof the-Seneca nationof Indians, residing at Cattaraugus, Allegany and Oil Springs'reselwations in the State of New York * * ' *" do make and establish the-following constitution.” Such, tribe or nation thereby voluntarily abrogated and abolished the customs Which had existed in that nation for more than a Century and by which the internal affairs of such nation had been regulated and *319the disputes and controversies between its members settled,, and in lieu thereof by such amended constitution a peacemakers’ court was created, its jurisdiction defined and its method of procedure prescribed. Such amended constitution recognized the desirability of the co-operation of the' State of New York in the carrying out and enforcement of its provisions, and it provided (§ 13): “ The laws heretofore enacted by the Legislature of the State of New York, for the protection and improvement of ■ the Seneca nation of Indians; * * * shall continue in full force and effect as heretofore until the statutes of the State of New York shall be repealed or amended by the Legislature thereof.”
Section 5 of the Indian Law above quoted was not passed until 1892. Suppose that no peacemakers’ court had been created before that time in any Indian nation.' Would it then be contended that the effect of such section was to oust all Indian nations and tribes within this State of jurisdiction to control and manage their internal affairs, to determine who shall occupy and possess their respective reservations, and to transfer jurisdiction of ail such matters to the' courts of this State ? Wé think that with as much reason it could be urged that in such manner the distinguishing sovereign rights of all such nations, to wit, their power to control and regulate their internal affairs, might be transferred to the courts of this State, as to claim that by such section jurisdiction of the affairs of the Tuscarora nation is conferred upon our courts, simply because' the section refers to a peacemakers’court in no manner connected with such nation and which concededly was given no jurisdiction over their members or reservation.
If I appreciate the argument of the appellant "in support of the proposition contended for, it seems to me to be unique. Apparently it is conceded that until the establishment of a peacemakers’ court in the Seneca nation, which was created by amendment to its constitution, all Indian nations within the State had exclusive jurisdiction in the management of affairs solely between themselves or such as related to the occupancy of their respective reservations, and that from time immemorial any disputes were settled in accordance with the customs, laws or rules adopted by or recognized as in force by such nations. The Senecas, one of such nations, in convention duly assembled, determined to abrogate the customs which had controlled *320the settlement of disputes for a century or more and in lieu thereof to create a peacemakers’ court to which all matters of differ-' ence between members of their nation might be referred for adjudi-. cation. Such peacemakers’ court, as we have seen, was created by action of such nation and in all respects in conformity to its laws. No other nation or tribe of Indians assumed to establish such court and all others were clearly unaffected by the amended constitution which created súch court for and on behalf of the Seneca nation. Yet it is urged that because of the establishment of such court and because of section 5 of the Indian Law,, above quoted, that the jurisdiction of all other nations of Indians within the State over their internal affairs was abrogated and that the same was transferred to the courts of this State. If the proposition that a justice of the peace of a town within which the Tuscarora reservation is situated has jurisdiction to determine who of the members of such tribe shall occupy .such reservation, is sound, it applies with equal force to the Onondaga, the Oneida and to every other nation or tribe of Indians within the State, except the Senecas, where alone a ■ peacemakers’ court has been established. In other words, the effect of the decision about to be rendered in this, case is to hold that the courts of our State have jurisdiction to determine any and all controversies arising between Indians residing upon their respective reservations within the State of New York, outside of the Seneca nation, in which a peacemakers’ court has been established. Such a claim of jurisdiction, so drastic and far-reaching, should, it seems to me, be supported by the highest authority before receiving the sanction of this court.
We are, therefore, led to inquire whether.there áre any-judicial-decisions which support the contention of the appellant in .the premises. We will assume, for the purposes of this appeal, that the .law as stated by Mr. Justice Williams in the case, of Jimeson v. Pierce (78 App. Div. 9) is correct. There it was said (p. 13): “ 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.” That statement of the law presents the whole question involved upon this appeal; viz.: Did section 5 of the Indian Law authorize *321the plaintiff to come into our courts for the purpose of enforcing her alleged right and to compel the defendant against her will to submit her rights to such jurisdiction? My contention is that the section has no reference to and confers no right upon a merabei of the Tuscarora nation residing upon its reservation to bring an action in our courts against another member of such tribe against his will and protest.
Hone of the cases cited by appellant’s counsel support the 'propo sition contended for. In the case of Crouse v. N. Y., Penn. & Ohio R. R. Co. (49 Hun, 576) it was simply held that where, an Indian, a member of the Seneca nation, comes into our courts to seek redress against a citizen of our" State and is unsuccessful, a judgment for costs awarded against him may be collected out of his individual property. In the case of Jemmison v. Kennedy (55 Hun, 47) it was objected that the action, which was for assault and battery, between two Indians, had been brought by attorneys other than the “attorney of the Seneca Hátion of Indians,” in violation of section 2 of chapter 150, Laws of 1845. It was held that such objection was not available because by section 14 of chapter 365 of the Laws of. 1847 it was provided that any Indian of said nation w'ho had any demand or right of action which exceeded the amount which might be awarded by the peacemakers, was authorized to maintain and prosecute the same in the courts of this State “ in the same manner and with like effect as between white citizens.” "In the case of Singer Mfg. Co. v. Hill (60 Hun, 347) it was held that a citizen of this State might maintain an action of replevin against an Indian to recover property the possession of which such Indian had obtained under a contract of conditional sale. In that case it was held that the right of action arose upon the demand and wrongful refusal of the defendant to give up the property. The case of Johnson v. Long Island R. R. Co. (162 N. Y. 462), cited by appellant’s counsel, can in no way be regarded as a decision in support of the proposition for which he contends.
Ho decision has been called to our attention by appellant which holds that our courts have jurisdiction of a controversy such as the one here involved. The Tuscarora Indians from time immemorial, through their chiefs or head men, have had jurisdiction to divide *322.their lands among the members of the tribe,- and it seems to me clear that the courts of this State have not jurisdiction to issue a warrant of dispossession against a member of such tribe in an action between themselves and which might practically annul any allotment made by their chiefs or head men.
-My conclusion of the whole matter is that the courts of this State have not jurisdiction as between members of .the Tuscarora ■ nation to determine who shall occupy or. are entitled to possession of its tribal lands ; that section 5 of the Indian Law, when properly interpreted and construed, does not confer or attempt to confer such jurisdiction; and that if susceptible- of such interpretation it is void because of the treaty rights- of the Tuscarora nation o.f Indians.
It follows, according to my view, that the County Court was right in reversing the decree or judgment of the justice of the peace and that.the judgment appealed from- should be affirmed, but without costs as against the appellant Indian, for the reason that this court has no authority to award costs in such case.
. Judgment of County Court reversed and final order of justice óf the peace affirmed, with costs in all courts. ■