The sun. [volume] (New York [N.Y.]) 1833-1916, 1907-07-23

who decided that the objection was Vand
and that the Montauk Tribe OF Indians
had no legal capacity TO maintain a suit
Of any kind in the courts Of this State.
An appeal was taken from the judgment
entered ON the decision OF the demurrer
TO the Appellate Division of the Supreme
Court sitting in Brooklyn; and the opin-
ion of that tribunal wGs ":itten by Mr..
Justice CULLEN, who is. now the Chief
Judge OF the Court Of Appeals. The APP
pellate Division sustained the decision OF
the lower court. Judge CULLEN showed
that "a long ago as lS45 it had been
decided by Chancellor WALwoRTH that
while the Indians in this State had the
undoubted right to the beneficial use and
the occupancy OF their lands, no provi-
sion had up to hat time ever been made
by statute to permit them to bring an
ejectment suit TO recover the possession
Of such lands, and that rs a body or tribe
the Indians had no corporate name under
the law by which they could institute
such a suit. IL is true that in 1891 the
Court Of Appeals did sustain the right
Of the Seneca nation TO sue in ejectment
to recover one hundred acres of land in
the county of Erie; but this right was
upheld solely under nhe provisions of a
statute expressly empowering that par
ticular tribe to maintain such a suit.
While there have been decisions in the
Federal courts which tend TO establish
the doctrine that Indians may sue in
those tribunals by their tribal name,
without special statutory authority, the
Appellate Division in this case Of the
Montauk Tribe unanimously held that
they had no similar privilege in the
courts. Of this State. Still, v said Judge
CULLEN, "the Indians are not without
redress. They may apply to the Legis-
lature for authority to maintain m action
like the present, or it may be that an
action might be instituted by one of their
number on his own behalf and on behalf
Of the other Indians Of his tribe"
Acting under the intimation contained
in this opinion, repeated applications
Of the Montauk Tribe for the enactment
Of such a statute rs that suggested
by Judge CULLEN. These applications,
however, were unsuccessful until last
ysar, when the Legislature Of 1908 passed
Chapter III Of the Session Laws of that
year, which is entitled An act 10 enable
the Montauk Tribe Of Indians in the
name OF their chief or head to maintain
actions in the courts of this State to
establish and enforce their rights in and
to certain real and personal property
This statute empowers the Montauk
Tribe Of Indians, in the name Of its chief
or head or his SUCCESSOR, in behalf of the
tribe, 10 commence, maintain and prose-
cute suits at law or in equity against any
person or corporation, to establish the
right, title and interest Of the tribe in
and to any property, real or personal,
and TO possession thereof, to-
gether with damages for its taking and
detention. The law requires, however,
that any proceedings for this purpose
must be commenced within two years
from the date when the act took effect,
namely April 10, 1905. The suit must be
brought in the Supreme Court in the First
or Second Judicial District and it must
be confined to property situated in the
towns of Easthampton and Southampton
in the county Of Suffolk. Furthermore,
the statute makes it a condition prece-
dent to the institution of any such suit
that the Commissioner of Indian Affairs
of this State shall have granted his con-
sent in writing 10 bring and prosecute
the action. The statute concludes with
these words: Nothing in this act con-
tanned shall be held to confer tribal
rights or relations upon any individual
or individuals. and the question rs to the
existence Of the Montauk Tribe of In
dams shall be a question of law and Of
fact to be determined by the court"
This final clause indicates that il was
the intention Of the Legislature to compel
the plaintiff TO establish the existence of
the Montauk Tribe as a tribe Of Indians
in the first instance and before it could
proceed to the assertion and enforce
ment of any alleged property rights in
the lands at Montauk Point. The suit
which has now been instituted under this
law is in this respect a novelty in our
Jurisprudence, and the outcome will be
watched by the legal profession with
much interest, quite apart from the
prominent character of the property to
which the litigation relates, occupying
as il does a very considerable portion OF
one OF the best known promontories on
our Atlantic seaboard.