(dissenting). The right of the United States to maintain this- suit in ejectment depends, as it seems to me, upon the question whether the particular Oneida Indians whom the United States undertakes to represent are or are not tribal Indians. If they are not, the United States has no concern with them. United States v. Nice, 241 U. S. 591, 36 Sup. Ct. 696, 60 L. Ed. 1192. It is true that M.ay 23, -1842, when the treaty between the state of New York and -the' Oneida Indians was. made, they were tribal, and it is said *175that for this reason the treaty is invalid; the United States not being a party to it. But this can hardly be maintained, in view of the great number of Indian treaties which the state has made without any approval of or co-operation with the United States, and upon which the title to immense areas of valuable lands depends. See the consideration of this subject by Judge Andrews in Seneca Nation v. Christie, 126 N. Y. 122, 27 N. E. 275. A special committee appointed by the Assembly of 1888 to investigate the Indian problem of the state annexed to their report 14 treaties with the Oneida Indians alone between 1788 and May 23, 1842, in which the United States had no part; the Indians conceding their title to the state of New York and the later treaties fixing the rights inter sese of those Oneida s who wished to emigrate to the West and those who wished to remain on the reservation.
Title to all tribal lands was in the British crown, subject to the Indians’ right of occupancy, which title upon the Revolution vested in the colonies, and subsequently in the original states, under the Articles of Confederation and upon the establishment of the present government. The right of pre-emption went with this title to the states. The United States never had either the title to the lands or the right of pre-emption. Harcourt v. Gaillard, 12 Wheat. 523, 6 E. Ed. 716.
By the treaty of May 23, 1842, the Oneida reservation was divided into 19 lots; the Indians known as the Emigrating Party ceding their title to the state in lots 1, 3, 4, 5, 7, 10, and 15, and their title in lots 2, 6, 8, 9, 11, 12, 13, 14, 16, 17, 18, and 19 to the Home Party. Schedule B attached to the treaty enumerates the individuals comprising the Home Party by name and states that they hold their lands in severalty as tenants in common and owners. The lands now in question were part of lot 17, and 23 individuals, comprising 4 families, are named as tenants in common and owners of that lot; in other words, their Indian title of occupancy was changed into a title in fee simple.
This treaty was subsequently confirmed by an act of the Legislature. Chapter 185, Laws' 1843. Section 1 provided:
“1. The Oneida Indians, owning lands in the counties of Oneida and Madison, are hereby authorized to hold their lands in severalty, in conformity to the snrveys, partitions and schedules annexed to and accompanying the treaties made with the said Indians, by the people of this state, in the year one thousand eight hundred and forty-two, and now on file in the office of the secretary of state. * * * ”
Sections 2, 3, 4, and 5 provided safeguards for the Indians in respect to alienation. Section 6 provided:
“6. The deeds and conveyances made as aforesaid shall convey all the right, title and interest of the said Indians or Indian, whoso lands shall have been conveyed as aforesaid, of, in and to the same, and shall vest in the purchaser or purchasers, his or their heirs or assigns forever, an absolute estate of inheritance in fee simple.”
The earliest deeds of conveyance by Oneida Indians of these lands in the chain of title to the defendants were executed in accordance with *176the provisions of this act. But, because the later deeds after 1865 were not so executed, the court holds them to be void, and to convey no title to the defendants. This overlooks the fact that chapter 486, Taws 1847, relieves the Oneida Indians from the restriction of chapter 185, Taws 1843, abolishes the office of attorney for them, imposes the performance of his duties for two years on the superintendent of Indians, whose office was to cease in two years from the passage of the act, viz. December 15, 1849, and thereafter “the said Indians shall have power to sell and convey their real estate the same as if they were natural-born citizens of the United States.” From that date I think that jheir tribal relation ceased to exist as matter of law. No wonder that the legislative committee of 1888 reported as to the Oneidas:
“They have no tribal relations and are without chiefs and other officers; they as a tribe receive no money from any source, but receive a small annuity from the general government, amounting to about 11 yards of cotton cloth to each person per year.”
Judge Wallace held to the same effect in United States v. Elm, 25 Fed. Cas. 1006, No. 15,048.
It is said that chapter 420,' Taws 1849, still imposed restrictions on the right of the Oneida Indians to convey, which restrictions were not thereafter observed in the deeds in the chain of title to the defendants, and therefore they were void and conveyed no title. This contention overlooks the fact that the act of 1849 applied only to tribal Indians, and did not repeal or qualify in any way chapter 486, Taws 1847, passed for the special benefit of'these Oneida Indians.
The laws of New York relating to Indians have been consolidated three times, viz.: Chapter 92, Taws 1813; chapter 679, Taws 1892 (which repealed chapter 185, Taws 1843, and chapter 486, Taws 1847, relating to the Oneida Indians) ; and chapter 31, Taws 1909, being chapter 26 of the Consolidated Taws. In neither of these two later consolidations are the Oneida Indians mentioned at all, whereas the Onondagas, Senecas, Tuscaroras, the Saint Regis, and the Shinnecock Tribes were and still are regulated by them. It is perfectly clear that the Tegislature no longer considers the Oneidas as a tribe or their land in question part of an Indian reservation. The above considerations make inquiry into the powers of Congress unnecessary, because those powers are concerned only with tribal Indians.
The judgment should be reversed.