Fellows v. Blacksmith, 60 U.S. (19 How.) 366 (1857), is a United States Supreme Court decision involving Native American law. John Blacksmith, a Tonawanda Seneca, sued agents of the Ogden Land Company for common law claims of trespass,John Edward Barry, Oneida Indian Nation v. County of Oneida: Tribal Rights of Action and the Indian Trade and Intercourse Act, 84 1852, 1873 (1984); Shelby D. Green, Specific Relief for Ancient Depravations of Property, 36 245, 280 n.193 (2003); Allan Kanner, Ryan Casey & Barrett Ristroph, New Opportunities for Native American Tribes to Pursue Environmental and Natural Resource Claims, 14 155, 175 n.133 (2003). assault, and battery after he was forcibly evicted from his sawmill by the Company's agents. The Court affirmed a judgement in Blacksmith's favor, notwithstanding the fact that the Seneca had executed an Indian removal treaty and the Company held the exclusive right to purchase to the land by virtue of an interstate compact ratified by Congress.G. William Rice, Teaching Decolonization: Reacquisition of Indian Lands Within and Without the Box—An Essay, 82 811, 833 (2006).

Citing the trust relationship between the federal government and the tribes, the Court held that removal treaties could only be enforced against the tribes by the federal government, not private parties (whether through self-help or through the courts).Bethany R. Berger, "Power over This Unfortunate Race": Race, Politics, and Indian Law in United States v. Rogers, 45 1957, 2006 (2004); Reid Peyton Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 1213, 1213 n.1 (1975); Matthew L.M. Fletcher, The Supreme Court and Federal Indian Policy, 85 121, 141 n.111 (2006); Ford, 1995, at 147 n.42; Robert B. Porter, The Jurisdictional Relationship Between the Iroquois and New York State: An Analysis of 25 U.S.C. ss 232, 233, 27 497, 503 n.32, 514 n.100 (1990). In other words, the federal government retained the discretion not to enforce such treaties.Jay Donald Jerde, Learning to Sell Grandmother: Why City of Sherrill, New York v. Oneida Indian Nation of New York Should be Upheld to Preserve Tax-Free Status of Tribal Real Estate Acquisitions, 28 341, 366 (2005). At the same time, the Court held that enrolled treaties are conclusively valid, and refused to consider the plaintiffs claim that the Treaty of Buffalo Creek (1838) was fraudulent.

Fellows was one of several encounters of the Taney Court with the aboriginal title.Robert N. Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 979, 1042 n.321; Michael L. Ferch, Indian Land Rights: An International Approach to Just Compensation, 2 301, 310 n.55 (1992). It was the first litigation of aboriginal title in the United States in the Court by an indigenous plaintiff since Cherokee Nation v. Georgia (1831).Richard B. Collins & Karla D. Miller, A People Without Law, 5 83, 87 & n.24 (2006). According to a contemporary New York Times article: "The questions involved are of great magnitude, and affect more or less the title to a large portion of the State of New York." In Fellows, the court found "its first opportunity to consider the power of the federal government over Indian lands in New York."Francis J. O'Toole & Thomas N. Tureen, State Power and the Passamaquoddy Tribe: A Gross National Hypocrisy, 23 1, 27 (1971). Following the precedents of the Marshall Court, Fellows was "decided at a time when the government was still dealing with Indian tribes as if they were semi-sovereign nations."

The plaintiffs' lawyer John H. Martindale (future New York Attorney General) also represented the interests of the Tonawanda Band of Seneca Indians in three companion cases in the New York state courts. The third such case, New York ex rel. Cutler v. Dibble (1858), also reached the Supreme Court, which held that state nonintercourse acts (U.S. state laws prohibiting non-Indians from acquiring Indian lands) are not preempted by the Commerce Clause, the federal Nonintercourse Act, or federal treaties. Ely S. Parker, one of the administrators of the Blacksmith estate, went on to draft the surrender at Appomattox and to become the first indigenous Commissioner of Indian Affairs.

Background Precedent

The Marshall Court (1801—1835) had repeatedly taken up the issue of aboriginal title in the United States. 153–188, 214–24 (2005). However, with the exception of Cherokee Nation v. Georgia (1831), which was dismissed for lack of original jurisdiction, all the disputes had been between non-Indians—typically between those who derived their title from the government and those who derived their title from private purchases from Indians.Howard R. Berman, The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 637, 637–666 (1978). The uniform rule of these cases, enunciated most clearly in Johnson v. McIntosh (1823), was that non-Indians could not acquire valid land title from such private purchases.Eric Kades, History and Interpretation of the Great Case of Johnson v. McIntosh, 19 67 (2001). However, the purchase at issue in Fellows, the Treaty of Buffalo Creek (1838), had been ratified by the federal government.

The Court had not yet encountered a party claiming to actually possess aboriginal title in a case in which it had jurisdiction, so it had not yet definitively resolved the question of whether the holders of aboriginal title could avail themselves of the common law causes of action of trespass or ejectment. At the end of his opinion in Fletcher v. Peck (1810), Marshall had stated that ejectment could not be obtained against the holder of aboriginal title.. The Taney Court (1836—1864), in Marsh v. Brooks (1850), went further in declaring that the holder of aboriginal title could obtain ejectment, stating: "That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question.". In the oral arguments of that case, Cherokee Nation had been cited as authority for the argument that "Indians cannot sue on their aboriginal title in court of the United States."Marsh, 49 U.S. at 229 (oral argument). The plaintiffs in Fellows had sued under the related cause of action of trespass.See 237, 328 (2005).

An 1821 opinion of U.S. Attorney General William Wirt, interpreting Fletcher and Johnson, argued that: "The Seneca Indians must be protected in the enjoyment of exclusive possession of their lands, as defined and bounded in the Treaty of Canandaigua, until they have voluntarily relinquished it."The Seneca Lands, 1 U.S. Op. Atty. Gen. 465, 465 (Apr. 26, 1821).

Dispute

Both the sovereignty over and land title to modern-day western New York was disputed between the colonies, and then states, of New York and Massachusetts, both claiming the lands by virtue of their colonial charters.Blacksmith v Fellows, 7 N.Y. (3 Seld.) 401, 411 (1852) ("There was originally a dispute between the states of New York and Massachusetts as to a large tract of land of which the locus in quo was a part. In 1786 that dispute was settled by a cession from Massachusetts to New York of the government, sovereignty and jurisdiction of the lands in controversy, and by a cession from New York to Massachusetts of 'the right of preemption of the soil from the native Indians and all other right or title of New York' to the same."). This dispute was resolved on December 16, 1786 by the Treaty of Hartford, an interstate compact providing that the lands would be part of the territory of New York, but Massachusetts would retain the pre-emption rights, the exclusive right to purchase the Indian lands.See Massachusetts v. New York, 271 U.S. 65 (1926). The compact was approved by the Congress of the Confederation on October 8, 1787.33 Journals of the Continental Congress 617 (1787). Text See also 52 (2000).

Oliver Phelps and Nathaniel Gorham acquired the right of pre-emption to the lands at issue in Fellows v. Blacksmith from Massachusetts in 1788 as part of the Phelps and Gorham Purchase. However, Phelps and Gorham only consummated the right of pre-emption for a tract east of the Genesee River in 1788. Phelps and Gorham defaulted on their payments to Massachusetts in 1790, causing the pre-emption rights to return to the state. Massachusetts then conveyed the pre-emption rights to Samuel Ogden on behalf of Robert Morris on May 12, 1791. Morris retained the pre-emptive right to the Morris Reserve for himself, but sold the pre-emptive right to the lands in question to the Holland Land Company on July 20, 1793 (the Holland Purchase). 321–22 (2007).

The Holland Land Company consummated much of its pre-emptive right in the Treaty of Big Tree (1797), extinguishing all Seneca aboriginal title west of the Genesee River except in ten reservations. The dispute concerned one of those reservations. The Treaty of Buffalo Creek (1838)Treaty with the New York Indians, Jan. 15, 1838., 7 Stat. 550. had provided for the relocation of the Seneca people from New York to present-day Kansas, with the exception of four reservations: the Buffalo Creek Reservation, the Cattaraugus Reservation, the Allegany Reservation, and the Tonawanda Reservation.. However, the Seneca refused to be relocated. Another treaty with the Senecas from 1842 modified the prior treaty:Treaty with the Seneca, May 20, 1842, 7 Stat. 586. the Senecas were to keep Cattaraugus and Allegany, but still cede Buffalo Creek and Tonawanda.Fellows v. Blacksmith, 60 U.S. at 369 ("Some difficulty occurred in carrying this treaty into execution, which it is not important to refer to. These difficulties raised by the Indians resulted in a modification of it by a second treaty . . . ."). The Seneca Nation of New York was established in 1848. The Tonawanda Band of Seneca Indians seceded from the Seneca Nation and achieved independent federal recognition (after the decision) in 1857.

Prior history

Facts