Fellows v. Blacksmith
Seal of the United States Supreme Court
Argued January 15–17, 1857
Decided March 5, 1857
Full case nameJoseph Fellows, Survivor of Robert Kendle v. Susan Blacksmith and Ely S. Parker, Administrators of John Blacksmith, Deceased
Citations60 U.S. 366 (more)
19 How. 366; 15 L. Ed. 684; 1856 U.S. LEXIS 463
Case history
PriorBlacksmith v. Fellows, 7 N.Y. (3 Seld.) 401 (1852)
(1) Native Americans may sue for trespass despite removal treaty because such treaties are enforceable only by the federal government
(2) Enrolled treaties are conclusively valid
Court membership
Chief Justice
Roger B. Taney
Associate Justices
John McLean · James M. Wayne
John Catron · Peter V. Daniel
Samuel Nelson · Robert C. Grier
Benjamin R. Curtis · John A. Campbell
Case opinion
MajorityNelson, joined by unanimous
Laws applied
Federal common law; Treaty of Buffalo Creek (1838)

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,[1] 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.[2][3]

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).[4] In other words, the federal government retained the discretion not to enforce such treaties.[5] 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.[6] 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).[7] 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."[8] In Fellows, the court found "its first opportunity to consider the power of the federal government over Indian lands in New York."[2] 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."[2]

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.



The Marshall Court (1801—1835) had repeatedly taken up the issue of aboriginal title in the United States.[9] 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.[10] The uniform rule of these cases, enunciated most clearly in Johnson v. M'Intosh (1823), was that non-Indians could not acquire valid land title from such private purchases.[11] 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.[12] 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."[13] 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."[14] The plaintiffs in Fellows had sued under the related cause of action of trespass.[15]

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."[16]


A map of the Phelps and Gorham Purchase
A map showing the Phelps and Gorham Purchase

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.[17] 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.[18] The compact was approved by the Congress of the Confederation on October 8, 1787.[19]

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.[20] However, Phelps and Gorham only consummated the right of pre-emption for a tract east of the Genesee River in 1788.[20] Phelps and Gorham defaulted on their payments to Massachusetts in 1790, causing the pre-emption rights to return to the state.[20] Massachusetts then conveyed the pre-emption rights to Samuel Ogden on behalf of Robert Morris on May 12, 1791.[20] 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).[20]

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.[20] The dispute concerned one of those reservations. The Treaty of Buffalo Creek (1838)[21] 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.[22] However, the Seneca refused to be relocated. Another treaty with the Senecas from 1842 modified the prior treaty:[23] the Senecas were to keep Cattaraugus and Allegany, but still cede Buffalo Creek and Tonawanda.[24] 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[edit]


John Blacksmith was a member of the Tonawanda Band of Seneca Indians and the sachem of the Wolf Clan.[25] Blacksmith had constructed a "Indian sawmill and yard" on his enclosed tract within the Tonawanda Reservation in Pembroke, Genesee County, New York circa 1826.[8] Blacksmith had not received compensation for the value of his improvements (the sawmill and yard), as provided for by the 1838 and 1842 treaties,[26] because he forcibly refused to let the treaty arbitrators onto his property for the survey.[27] The Ogden Land Company claimed title to the Tonawanda Reservation by virtue of its right of pre-emption, consummated by the treaties.[28] Agents of the company "expelled and dispossessed" Blacksmith "with force of arms."[29]

Supreme Court (trial court)

The suit was originally brought by John Blacksmith in 1846.[8] Represented by lawyer John H. Martindale, Blacksmith sued Joseph Fellows and Robert Kendle, agents of the Land Company, for the torts of assault and battery and trespass, quare clausum fregit, with the sawmill as the locus in quo.[8][25] Blacksmith's wife and Ely S. Parker (Blacksmith's successor as sachem of the Wolf Clan), together the administrators of Blacksmith's estate, succeeded Blacksmith as plaintiffs.[25]

After a jury trial, the New York Supreme Court held for Blacksmith.[30]

Supreme Court, General Term

The New York Supreme Court General Term ("circuit court") denied a new trial, holding that the payment of the appraisal value of the improvements determined by the arbitrator was a condition precedent to the conveyance in the treaty.[31]

Court of Appeals

Before the New York Court of Appeals, Fellows was represented by J. C. Spencer, who made three arguments.[32] First, he argued that the right to bring an action for trespass based on aboriginal title accrued only to an Indian nation, not an individual Indian.[32] As Spencer noted, the Seneca Nation itself was prohibited by law from bringing an action "by a private attorney."[33] Second, he argued that Fellows' title was valid.[34] Third, he argued that the Seneca's rights under the treaty were only enforceable against the federal government, and did not affect the defendant's title as a condition precedent.[35] The court reporter did not publish Martindale's responses.[32]

The Court of Appeals, 6-1, sided with Blacksmith. Judge John Worth Edmonds delivered the majority opinion, joined by Chief Judge Charles H. Ruggles and Judges Addison Gardiner, Freeborn G. Jewett, Alexander S. Johnson, and Watson. Judge Welles dissented and Judge Gridley was absent.

The Court of Appeals held that Blacksmith could independently bring the claim for trespass, for which he need only show a right to possession.[36] The Court of Appeals also held that Fellows' title was invalid, because the payment of compensation was a condition precedent.[37] Welles, in dissent, agreed that Blacksmith could individually sue for trespass, but disagreed that the appraisal was a condition precedent; he would have reversed and granted a new trial, with costs.[38] The Court of Appeals remanded back to the Supreme Court, after which a writ of error was granted by the U.S. Supreme Court.[39]

U.S. Supreme Court oral argument

John H. Martindale argued the case for the Tonawanda Senecas before the Court. Commissioner R.H. Gillet and J.L. Brown of the Ogden Land Company argued for the defendants. Arguments started on January 15, 1857 and were adjourned until January 17.[8][40]

One of the plaintiffs, Ely S. Parker personally attended the oral arguments before the U.S. Supreme Court in Washington, D.C. According to the New York Times:

All who heard their cases argued before the Supreme Court of the United States, a few months since, will recollect seeing this same Indian, and that he was well posted on the points he desired his counsel to press upon the attention of the Court.[41]

A portrait of Chief Justice Roger B. Taney
Chief Justice Taney skipped the opinion announcement to work on Dred Scott v. Sandford, announced the next day.

A letter to the editor of the New York Times—which criticizes a previous article for creating the "impression that the Indians at Tonawanda are very nearly the equal in agriculture, general intelligence, and in the customs of civilized life, of their white neighbors"—concurs with this assessment of Parker's role:

I have not a word to say in the disparagement of the intellectual ability of Ely S. Parker, their head chief, and cheerfully unite with "W.H.P." in awarding him the credit for making valuable suggestions to his counsel on the argument of the case in the Supreme Court of the United States[.] Indeed, I am inclined to the belief, that to him is due the credit of originating and suggesting to his counsel the only available point in the case, and the one on which it was there decided, for the case had been ten years in the Courts of this State, and this point was never before made, nor was it made in the Supreme Court of the United States, in the original brief of counsel for the Indians, filed pursuant to the rules of the Court. It was first made in a supplementary brief printed after the opening argument of counsel on the other side had been commenced, and not handed in until the second day, just previous to its conclusion.[42]

Opinion announcement

Chief Justice Roger Taney was not present at the opinion announcement for Fellows because he was at home working on the opinion in Dred Scott v. Sandford, which was announced the next day.[43] The Taney court had inherited from the preceding Marshall Court voluminous decisions on the status of aboriginal title in the United States. None of those decisions was cited in either opinion. Dred Scott, in dicta, opined the following on aboriginal title:

The situation of [blacks] was altogether unlike that of the Indian race. The latter . . . were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it.[44]

Justice John Catron, concurring in Dred Scott, also noted in dicta that:

[B]ecause Congress has express power to regulate commerce among the Indian tribes and to prohibit intercourse with the Indians, that therefore Dr. Emerson's title might be defeated within the country ceded by the Indians to the United States as early as 1805 . . . .[45]

Opinion of the Court[edit]

A photo of Justice Samuel Nelson
Justice Samuel Nelson delivered the opinion of the Court.

Justice Samuel Nelson delivered the unanimous opinion of the Court, affirming the judgment of the New York Court of Appeals.

Effect of the Treaty

The Court observed:

Neither treaty made any provision as to the mode or manner in which the removal of the Indians or surrender of the reservations was to take place. The grantees have assumed that they were authorized to take forcible possession of the two reservations, or of the four, as the case would have been under the first treaty. The plaintiff in this case was expelled by force; and unless this mode of removal can be sustained, the recovery against the defendants for the trespass was right, and must be affirmed.[46]

The Court noted that previous removals of Indians had been undertaken by the federal government "according to the usage and practice of the Government, by its authority and under its care and superintendence."[47] "[A]ny other mode of a forcible removal," the Court argued, would not "be consistent with the peace of the country, or with the duty of the Government to these dependent people, who have been influenced by its counsel and authority to change their habitations."[48]

Because the treaty had been negotiated "with them as a quasi nation, possessing some of the attributes of an independent people, and to be dealt with accordingly," the Court held that "unless otherwise expressly stipulated" only the federal government had the "authority or power" to execute the agreement.[48] The Court remarked that the Senecas were "in a state of pupilage, and hold the relation to the Government as a ward to his guardian."[48] The nature of that relationship between the Seneca and the federal government was incompatible with the Seneca being expelled by "irregular force and violence," or even "through the intervention of the courts of justice."[48] Thus, the court held that the private beneficiaries of Native American treaties could neither expel tribes by force or by a cause of action for ejectment.[49] The court observed that "this interpretation is in accordance with the usages and practice of the Government in providing for the removal of Indian tribes from their ancient possessions, with the fitness and propriety of the thing itself," and with the text of the treaty.[49]

The Court concluded: "We hold that the performance was not a duty that belonged to the grantees, but for the Government under the treaty."[49]

Validity of the Treaty

The Court did not accept the plaintiffs' arguments that the treaty was invalid because it was not signed by tribal leaders with the authority to cede the relevant lands or because the signatories were fraudulently induced to sign.[49] Analogizing to the enrolled bill rule (the only citation of case law in the opinion), the Court held that "the treaty, after executed and ratified by the proper authorities of the Government, becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operation."[49]

Conditions Precedent

Because its aforementioned holdings required affirmance, the Court did not reach the alternate ground for decision of the trial court that the appraisal and the payments were conditions precedent.[49]

Companion cases[edit]

A photo of lawyer John H. Martindale
The Seneca's lawyer John H. Martindale, brought four suits against the Land Company and its grantees.

Lawyer John H. Martindale, of Verplank & Martindale, also represented Tonawanda Seneca plaintiffs in three other contemporary suits against the Land Company and its grantees: People ex rel. Blacksmith v. Tracy (N.Y. Sup. 1845); People ex rel. Waldron v. Soper (N.Y. 1852); and New York ex rel. Cutler v. Dibble (U.S. 1858).[n 1][n 2] At the time, Martindale (the future New York Attorney General) was well known for litigating personal injury torts against railroads, especially New York Central Railroad.[50]

Whereas Fellows was brought in the New York Supreme Court under the common law cause of action of trespass, these three suits were brought (as required by statute) in the Genesee County Court under a state statute prohibiting non-Indians from residing on Indian lands. That statute provided:

[I]t shall be unlawful for any person or persons, other than Indians, to settle or reside upon any lands belonging to or occupied by any nation or tribe of Indians within this state; and that all leases, contracts and agreements made by any Indians, whereby any person or persons, other than Indians, shall be permitted to reside upon such lands, shall be absolutely void; and if any person or persons shall settle or reside on any such lands, contrary to this act, it shall be the duty of any judge of any court of Common Pleas of the county within which such lands shall be situated, on complaint made to him, and on due proof of the fact of such settlement or residence, to issue his warrant, under his hand and seal, directed to the sheriff of such county, commanding him, within ten days after the receipt thereof, to remove such person or persons so settling or residing, with his, her or their families, from such lands.[51]

The statute further provided:

that it shall be the duty of the district attorneys respectively of the several counties in this state in which any lands belonging to any Indian tribe shall be situated, (among other things) to make complaint of all intrusions upon Indian lands, forbidden by the act; and from time to time to make inquiries whether any persons other than Indians are settled upon such lands, and to cause them to be removed in the manner therein prescribed.[52]

From 1821–1846, the district attorney would have been appointed; thereafter, the office was elected.[53] Martindale was the district attorney of Genesee County from 1842–1844 and again from 1847–1849.[53] Thus, Martindale himself filed the complaints in People ex rel. Blacksmith v. Tracy and People ex rel. Waldron v. Soper, and his successor, Seth Wakeman (1850–1855[53]) filed the complaint in New York ex rel. Cutler v. Dibble. Although Martindale was district attorney when the complaint in Tracy was filed, he lost the election and attempted to litigate the mandamus issue as a private attorney.[54]

The results of the three suits were mixed. Martindale was defeated in the New York Supreme Court and New York Court of Appeals, respectively, in the first two, but had prevailed in the Court of Appeals and, ultimately, the U.S. Supreme Court in the third.

A photo of the Genesee County Courthouse
The Genesee County Courthouse, a structure built by the Holland Land Company

People ex rel. Blacksmith v. Tracy[edit]

Martindale (in his final days as district attorney) filed the complaint on January 8, 1845.[55] Evidence, including the testimony of Ely S. Parker, was presented on January 11.[55] Judge Phineas L. Tracy, of the Genesee County Court (1841–1845[56]), declined to issue a warrant to the Genesee County Sheriff to remove the Ogden grantees.[55]

Still in January, Martindale applied to the Supreme Court for mandamus, and the court issued an alternative mandamus (essentially, an order to show cause why peremptory mandamus should not issue) on March 6, 1845, which was served March 25.[55] On April 19, the deadline was extended to the first Tuesday in June.[55] Before the Supreme Court, Martindale was joined by New York Attorney General John Van Buren and opposed by A. Taber and J. L. Brown.[55]

That June, Judge Jewett granted Tracy's motion to quash, without costs.[55] The court held that only the district attorney could bring such an action to enforce the statute:

I am of opinion that by the terms and spirit of the statute under which this proceeding has been had, no other than the district attorney of the county of Genesee (in which the lands intruded upon are situated) could regularly be a relator. The remedy for the act complained of is provided by the statute, as well as the officers to carry it into execution. It is made the duty of the district attorney to make complaint of all intrusions upon Indian lands forbidden by the act, and from time to time to make inquiries whether any persons other than Indians are settled upon such lands, and to cause them to be removed in the manner therein prescribed. Without the act, John Blacksmith or any other person could not claim such summary proceedings to remove intruders upon Indian lands; and with the act, no other person is authorized by its provisions to make complaint of such intrusions, or to cause the intruders to be removed, but the district attorney of the county in which the lands are situated.[57]

The court also found the affidavit of Parker to be insufficient as a factual matter to comply with the terms of the statute.[58] However, even if the district attorney had brought the action and the affidavit had been sufficient, the Supreme Court still would have denied mandamus as a matter of law.[59]

People ex rel. Waldron v. Soper[edit]

In the second suit, Martindale—in a second term, this time as an elected district attorney—filed the complaint under the same statute on January 3, 1849.[60] Judge Horace U. Soper, of the Genesee County Court (1847–1850[56]), granted the writ of removal on January 9, 1849. The New York Supreme Court General Term (Judges Mullet, Sill, and Marvin), sitting in Buffalo, New York, granted a writ of certiorari,[n 3] and affirmed in March 1849.[60] "Waldron" is the only party subject to the writ of removal named in the Court of Appeals opinion (the only reported opinion) and only by last name.[60]

The Court of Appeals reversed and annulled the writ in October 1852.[60] Judge John Worth Edmonds, for a unanimous court, gave two reasons.[60] First, it held that the court had no power to proceed against the majority of the defendants because they were not properly summoned and caused to appear.[60] Second, with respect to defendant Waldron (who had voluntarily appeared), the court held that "it does not appear that these lands were owned by the Indians."[60]

New York ex rel. Cutler v. Dibble[edit]

In a third suit, Martindale's successor as district attorney, Seth Wakeman (1845–1850[53]), filed a complaint against Asa Cutler, John Underhill, and Arza Underhill (grantees of the Land Company) under the same statute, on February 19, 1853.[61] Thomas Black, a Seneca who had made some improvements and apparently been compensated for the same, allegedly consented to the Underhills presence.[61] Judge Edgar C. Dibble, of the Genesee County Court (1846, 1851–1854) and a one-time partner of Martindale,[56] granted the writ of removal.[61] The Supreme Court granted certiorari and affirmed on September 4, 1854, holding that "the Seneca nation had not duly granted and conveyed the reserve in question to Ogden and Fellows."[61] The judgement of the Supreme Court was delivered by Judge Marvin, joined by judges Bowen and Green. Judge Mullet dissented without opinion.[61]

The Court of Appeals—after the second argument[42]—also affirmed in September 1857. The majority opinion was authored by Judge Brown, joined by Judges Comstock, Paige, Shankland, and Bowen. The Court of Appeals held that the state statute did not violate the New York Constitution and that a jury trial was not required because the defendants had no property right.[61] In closing, the Court of Appeals cited the U.S. Supreme Court's recent decision in Fellows.[61] Chief Judge Hiram Denio, joined by Judge Alexander S. Johnson, concurred on the constitutionality of the 1821 state statute, but dissented on the grounds that the treaties extinguished the aboriginal title, and thus the state statute either did not apply or violated the treaty.[61] Judge Selden recused.[61]

By the time Fellows was decided, Dibble had reached the U.S. Supreme Court but had not yet been argued.[42] The Court eventually affirmed in 1858, holding that the state statute did not violate the Indian Commerce Clause, the federal Nonintercourse Act, or the treaty.[61]

Subsequent developments[edit]

A photo of Ely S. Parker
Ely S. Parker, one of the plaintiffs

Enrolled treaty doctrine[edit]

The key claim advanced by lawyer John H. Martindale in all four cases had been that the Treaty of Buffalo Creek (1838) was invalid because it was not signed by the Seneca leaders with the authority to cede the Tonawanda Reservation, and the signatures it did contain were obtained by coercion or fraud. This argument had not prevailed before the New York Courts or the Supreme Court. As Brown notes:

The principal point, however, on which the counsel relied, and which he hoped to establish, was that the Tonawandas were not bound by the Treaties, because the chiefs there protested against and refused to sign them. To this point his main argument has always, in all stages of the litigation been addressed, and he has pressed it upon the consideration of the Courts, with the utmost pertinacity. It was, however, decided against him in the Blacksmith case, argued last Winter at Washington and has never been decided in his favor by any Court.[42]

Fellows is among the earliest cases where the Supreme Court applied treaties, including treaties between the United States and Native American tribes, as binding law.[62] Fellows has been cited as authority for the enrolled treaty doctrine; analogous to the enrolled bill rule for statutes, the enrolled treaty doctrine prevents inquiry into the legitimacy of the formation of treaties once ratified by the Senate.[63] This doctrine was later used to deny relief (or, to deny more relief) to Native American tribes who claimed that treaties were entered into fraudulently or signed by persons without authority to bind the tribe.[64] Fellows was also decided before the Supreme Court began distinguishing between self-executing and non-self executing treaties.[65] Regardless, treaties between the United States and Native Americans continued to be regarded as self-executing.[66]

Seneca land claims[edit]

A contemporary New York Times article opined that: "The questions involved are of great magnitude, and affect more or less the title to a large portion of the State of New York."[8] Although the Seneca prevailed in the lawsuit, title to a large portion of the state was not called into question due to the court's refusal to entertain the Seneca's claims regarding the invalidity of the treaty. According to Armstrong, the result of the decision was mixed:

The decision was not all that the Indians had hoped for—it was a victory on narrow legal grounds rather than a vindication of their cause—but it was a victory. The Court's ruling meant that as long as the federal government was determined to take no action to remove them from Tonawanda, the Ogden Company was powerless to do so.[67]

Fellows was "decided at a time when the government was still dealing with Indian tribes as if they were semi-sovereign nations."[2] The Tonawanda Seneca were never relocated to Kansas, and a new 1857 treaty confirmed their title to a 7,549-acre reservation. This treaty ended 15 years of litigation between the Tonawanda Band and the Ogden Land Company.[41]

The Seneca, again represented by Martindale, prevailed in New York ex rel. Cutler v. Dibble (1858). Seneca Nation of Indians v. Christy (1896) also involved a Seneca plaintiff represented by a Civil War general. There, the plaintiffs challenged the Phelps and Gorham Purchase under the Nonintercourse Act. Fellows was not cited. In 1899, the U.S. Supreme Court upheld a $1,967,056 judgment of the Court of Claims (pursuant to an enabling statute) against the federal government based on the 1838 treaty.[68] Fellows was cited by Oneida Indian Nation of New York v. County of Oneida (1974) for the proposition that "the possessory right claimed is a federal right to the lands at issue in this case."[69]


Plaintiff Ely S. Parker went on to become a member of General Ulysses S. Grant's staff during the American Civil War, drawing up the terms of the surrender at Appomattox Court House.[70] After the war, President Grant appointed Parker as Commissioner of Indian Affairs, the first indigenous head of the Bureau of Indian Affairs.[70][71] According to his New York Times obituary, Parker "negotiated the removal of his tribe from this State to the fertile and pleasant lands on Green Bay, Wisconsin."[70]

The Seneca's lawyer, John H. Martindale, later appeared before the U.S. Supreme Court, as New York Attorney General, in In re New York Indians (1866), arguing that the state had the right to tax the Senecas. The Court disagreed.[72] In the case below, plaintiffs Joseph Fellows (the defendant in Fellows), Louisa Troup, and George R. Babcock sought to recover a plot of land from Robert Denniston (in his official capacity as New York State Comptroller) and Thomas W. Olcott, the purchaser at the tax foreclosure sale.[73] Fellows, Troup, and Babcock argued that the state had no power to tax the Seneca.[74] In re New York Indians, agreeing, cited Fellows:

Until the Indians have sold their lands, and removed from them in pursuance of the treaty stipulations, they are to be regarded as still in their ancient possession, and are in under their original rights, and entitled to the undisturbed enjoyment of them. This was the effect of the decision in the case of Fellows v. Blacksmith. The time for the surrender of the possession, according to their consent given in the treaty, had not expired when these taxes were levied. The period within which the removal was to take place, under the treaty of 1838, was five years from the time it went into effect. It was not proclaimed till 1840, and under that of 1842 the time did not expire till 1846. The taxation of the lands was premature and illegal.[75]


  1. ^ These suits are designated ex rel because they are brought in the name of the People of New York, on behalf of the party in interest.
  2. ^ According to the New York Times, John H. Martindale was the "principal attorney" for the Senecas, having "for the last fifteen years devoted his best powers, in the meridian of life, to defending them, in the numerous suits brought against them, and also to protecting their interest from the aggressions of settlements under the Ogden titles. In all the cases he has been uniformly successful in all the Courts of this State, and in the Supreme Court of the United States."[41] A letter to the editor disagreed, stating: "There have been no suits brought against them. There have been in all only four suits, involving in various forms the relative rights of the Indians and the Ogden Company and its grantees, which have gone through the Courts of this State.[42]
  3. ^ Without mandamus, decisions of the County Court could only be appealed to the New York Supreme Court (trial court) by "common law certiorari." With both methods, the decisions are reported as if the County Court Judge was a party adverse to the non-prevailing party.[61]


  1. ^ John Edward Barry, Oneida Indian Nation v. County of Oneida: Tribal Rights of Action and the Indian Trade and Intercourse Act, 84 Colum. L. Rev. 1852, 1873 (1984); Shelby D. Green, Specific Relief for Ancient Depravations of Property, 36 Akron L. Rev. 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 Duke Envtl. L. & Pol'y F. 155, 175 n.133 (2003).
  2. ^ a b c d Francis J. O'Toole & Thomas N. Tureen, State Power and the Passamaquoddy Tribe: A Gross National Hypocrisy, 23 Me. L. Rev. 1, 27 (1971).
  3. ^ G. William Rice, Teaching Decolonization: Reacquisition of Indian Lands Within and Without the Box—An Essay, 82 N.D. L. Rev. 811, 833 (2006).
  4. ^ Bethany R. Berger, "Power over This Unfortunate Race": Race, Politics, and Indian Law in United States v. Rogers, 45 Wm. & Mary L. Rev. 1957, 2006 (2004); Reid Peyton Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213, 1213 n.1 (1975); Matthew L.M. Fletcher, The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 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 Harv. J. on Legis. 497, 503 n.32, 514 n.100 (1990).
  5. ^ 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 Hamline L. Rev. 341, 366 (2005).
  6. ^ Robert N. Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan. L. Rev. 979, 1042 n.321; Michael L. Ferch, Indian Land Rights: An International Approach to Just Compensation, 2 Transnat'l L. & Contemp. Probs. 301, 310 n.55 (1992).
  7. ^ Richard B. Collins & Karla D. Miller, A People Without Law, 5 Indigenous L.J. 83, 87 & n.24 (2006).
  8. ^ a b c d e f Supreme Court of the United States, N.Y. Times, Jan. 19, 1857 (correspondence of the N.Y. Daily News).
  9. ^ Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier 153–188, 214–24 (2005).
  10. ^ Howard R. Berman, The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 Buff. L. Rev. 637, 637–666 (1978).
  11. ^ Eric Kades, History and Interpretation of the Great Case of Johnson v. M'Intosh, 19 L. & Hist. Rev. 67 (2001).
  12. ^ Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 142-43 (1810).
  13. ^ Marsh v. Brooks, 49 U.S. (8 How.) 223, 233 (1850).
  14. ^ Marsh, 49 U.S. at 229 (oral argument).
  15. ^ See Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier 237, 328 (2005).
  16. ^ The Seneca Lands, 1 U.S. Op. Atty. Gen. 465, 465 (Apr. 26, 1821).
  17. ^ 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.").
  18. ^ See Massachusetts v. New York, 271 U.S. 65 (1926).
  19. ^ 33 Journals of the Continental Congress 617 (1787). Text See also Francis G. Hutchins, Tribes and the American Constitution 52 (2000).
  20. ^ a b c d e f J. H. French, Gazetteer of the State of New York 321–22 (2007).
  21. ^ Treaty with the New York Indians, Jan. 15, 1838., 7 Stat. 550.
  22. ^ Fellows v. Blacksmith, 60 U.S. (19 How.) 366, 368 (1857).
  23. ^ Treaty with the Seneca, May 20, 1842, 7 Stat. 586.
  24. ^ 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 . . . .").
  25. ^ a b c Fellows v. Blacksmith, 60 U.S. at 367.
  26. ^ Blacksmith v Fellows, 7 N.Y. at 411–12 ("It is enough for the purposes of the question now before us to know that in May 1842 . . . was agreed that the Indian title to four different tracts of land known as the Buffalo, the Cattaraugus, the Allegany and the Tonawanda reservations was valued at $202,000, that the Indians should retain the occupation and enjoyment of the Allegany and Cattaraugus reservations, and they thereby conveyed to Ogden and Fellows the whole of the Buffalo and Tonawanda reservations; that the Indians should be paid the consideration for that grant as follows: $100,000 should be regarded as the value of their title to the whole four tracts, and $102,000 as the value of their improvements on the same four tracts, and so much of those sums should be paid by Ogden and Fellows as the value of the title and improvements on the Buffalo and Tonawanda tracts should bear to the value of the title and improvements on all the tracts; such amount to be determined by arbitrators to be chosen as therein mentioned.").
  27. ^ Blacksmith v Fellows, 7 N.Y. at 413 ("[The arbitrators] were unable to award as to the amount to be paid to each individual for his improvements on the Tonawanda tract, for the reason that that portion of the nation which was in possession of that tract refused to let them perform their duty in this respect, and removed them by force from the tract when they went there, as they did twice, for the purpose of making their examinations and award.").
  28. ^ Fellows v. Blacksmith, 60 U.S. at 367; Blacksmith v. Fellows, 7 N.Y. at 411 ("This right was duly vested in Ogden and Fellows by proper conveyances from the state of Massachusetts, and they thus became seized of all the white man's right over these lands, except that of sovereignty which still remains in the state of New York. The Indian title, however, was not yet extinguished and the Indians were in the actual possession of the land, and before Ogden and Fellows could enjoy any benefit from this grant from the state of Massachusetts, it was necessary for them to acquire the Indian right.").
  29. ^ Fellows v. Blacksmith, 60 U.S. at 367 ("John Blacksmith [sued] Joseph Fellows and Robert Kendle, for entering, with force and arms, into the close of the plaintiff, commonly known as an Indian sawmill and yard, at the town of Pembroke, county of Genesee, and then and there having expelled and dispossessed the said plaintiff.").
  30. ^ Fellows v. Blacksmith, 60 U.S. at 367; Blacksmith v. Fellows, 7 N.Y. at 413 ("Upon this state of facts the jury under the charge of the court found a verdict for the plaintiff. On the trial below the court ruled that the defendants had failed to make out any title or right of possession and refused to charge that Fellows had made out a title to the close in question: that Fellows at the end of the two years was entitled to the possession notwithstanding the omission of the arbitrators to award as to the amount to be paid to the plaintiff as the value of his improvements: that such failure of the arbitrators could not prejudice Fellows unless it had been caused by him; and that the plaintiff as an individual Indian could not maintain the action.").
  31. ^ Blacksmith v. Fellows, 7 N.Y. at 413 ("The supreme court at general term denied the motion for a new trial on the ground that the award of the arbitrators in full, as required by the indenture of conveyance and the treaty, was a condition precedent to the grantee's right of possession."); id. at 420 (Welles, J., dissenting) ("The circuit court decided and ruled generally without passing upon the objections separately, that the defendants had failed to establish any right or title to the close in question in the defendant Fellows.").
  32. ^ a b c Blacksmith v. Fellows oral arguments, 7 N.Y. at 409–11.
  33. ^ Blacksmith v. Fellows oral arguments, 7 N.Y. at 401 (citing Laws 1841, ch. 234, § 8; 2 R. S. 3d ed. 432; Laws 1845, p. 147).
  34. ^ Blacksmith v. Fellows oral arguments, 7 N.Y. at 410 ("The defendant Fellows had the legal title in fee in the premises; Ogden and Fellows were the owners of the preemptive right granted to Massachusetts, and by virtue of the treaty and grant of 1842 they acquired a perfect title to the Tonawanda reservation. It was 'released and confirmed' to them.").
  35. ^ Blacksmith v. Fellows oral arguments, 7 N.Y. at 410 ("The distribution of the moneys awarded for individual improvements was an arrangement between the government of the United States and the Seneca nation with which Ogden and Fellows had no concern. Their obligation was discharged by payment of the gross sum into the treasury. Nothing in the treaty required the appraisement of the individual improvements to be made at the same time with the other, nor that the report of it should be made in the same instrument.").
  36. ^ Blacksmith v. Fellows, 7 N.Y. at 414 ("This might be true if the action was founded only upon title. So it might be true if it was founded upon the occupancy in common which we know is usual with the Indian tribes. But this action is not founded upon either basis, but upon the separate possession of the plaintiff. The bill of exceptions shows that he was alone and separately from all others, in possession of the locus in quo when the trespass was committed, and that was enough to enable him to maintain an action for a wrong done to that possession.").
  37. ^ Blacksmith v. Fellows, 7 N.Y. at 414–15 ("There is no particular form of words necessary to constitute a condition precedent. The true test is the intention of the parties. And it is very evident to me that it was the intention of the parties that the occupiers of the land should not be compelled to give up the possession of them until two conditions had been complied with; one that such an award should be obtained and filed in the war office; and the other that the value of the improvements should be paid to the president, and the consideration for the conveyance be paid or secured to the satisfaction of the secretary of war.").
  38. ^ Blacksmith v. Fellows, 7 N.Y. at 418–19 (Welles, J., dissenting).
  39. ^ Fellows v. Blacksmith, 60 U.S. at 366–67.
  40. ^ United States Supreme Court, N.Y. Times, Feb. 16, 1857.
  41. ^ a b c "W.H.P.", New Treaty with the Seneca Indians at Tonawanda, N.Y. Times, Jan. 30, 1858 (reprinted from Friends' Rev.).
  42. ^ a b c d e Joshua L. Brown, The Tonawanda Indians, N.Y. Times, Feb. 4, 1858 (letter to the editor).
  43. ^ Armstrong, 1990, at 60.
  44. ^ Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 403-04 (1856).
  45. ^ Dred Scott, 60 U.S. at 528 (Catron, J., concurring).
  46. ^ Fellows v. Blacksmith, 60 U.S. at 370.
  47. ^ Fellows v. Blacksmith, 60 U.S. at 370–71.
  48. ^ a b c d Fellows v. Blacksmith, 60 U.S. at 371.
  49. ^ a b c d e f Fellows v. Blacksmith, 60 U.S. at 372.
  50. ^ Vose, 1890, at 60.
  51. ^ People ex rel. Cutler v Dibble, 16 N.Y. (2 E.P. Smith) 203, 204 (1857) (citing Laws of 1821, 183, §§ 1, 5).
  52. ^ People ex rel. Blacksmith v. Tracy, 1 How. Pr. 186 (N.Y. Sup. Ct. 1845) (citing §§ 5, 6).
  53. ^ a b c d Vose, 1890, at 46.
  54. ^ Tracy, 1 How. Pr. 186 ("An alternative writ of mandamus was issued, tested the first Monday of January, 1845, by Verplank & Martindale, as attorneys for the relator; neither of whom being district attorney of Genesee county, which was served on the judge the 25th day of March last; it recited that on the 8th day of January, 1845, John H. Martindale, then district attorney of the county of Genesee, made complaint to said judge . . . .").
  55. ^ a b c d e f g Tracy, 1 How. Pr. 186.
  56. ^ a b c Vose, 1890, at 45.
  57. ^ Tracy, 1 How. Pr. 186 (emphasis removed).
  58. ^ Tracy, 1 How. Pr. 186 ("The deponent Parker does not profess to have any knowledge of the fact: he swore to nothing beyond information and belief." (emphasis removed)).
  59. ^ Tracy, 1 How. Pr. 186 ("I am of opinion that the decision of the judge in this case, if erroneous, cannot be corrected by mandamus, the judge in his refusal acted judicially.").
  60. ^ a b c d e f g People ex rel. Waldron v. Soper, 7 N.Y. (3 Seld.) 428 (1852).
  61. ^ a b c d e f g h i j k New York ex rel. Cutler v. Dibble, 18 Barb. 412 (N.Y. Sup. Ct. Gen. Term 1854), aff'd 16 N.Y. (2 E.P. Smith) 203 (1854), aff'd, 62 U.S. (21 How.) 366 (1858).
  62. ^ David B. Dixon, Que Lastima Zapata! Bad CISG Ruling on Attorneys' Fees Still Haunts U.S. Courts, 38 U. Miami Inter-Am. L. Rev. 405, 409 n.7 (2006–2007); Jon Michael Haynes, What Is It About Saying We're Sorry? New Federal Legislation and the Forgotten Promises of the Treaty of Guadalupe Hidalgo, 3 SCHOLAR 231, 244 n.68 (2001); Jill Norgren, Protection of What Rights They Have: Original Principles of Federal Indian Law, 64 N.D. L. Rev. 73, 116 n.260 (1988); Jordan J. Paust, Breard and Treaty Based Rights under the Consular Convention, 92 Am. J. Int'l L. 691, 692 n.8 (1998); Jordan J. Paust, Rediscovering the Relationship Between Congressional Power and International Law: Exceptions to the Last in Time Rule and the Primacy of Custom, 28 Va. J. Int'l L. 393, 435 n.81 (1988); Michael P. Van Alstine, Federal Common Law in the Age of Treaties, 89 Cornell L. Rev. 892, 905 n.84 (2004); Note, Indians and the United States, 25 Harv. L. Rev. 733, 733 n.6 (1912).
  63. ^ David P. Currie, The Constitution in the Supreme Court: Article IV and Federal Powers, 1836–1864, 1983 Duke L.J. 695, 714 n.123; Ford, 1995, at 164 n.149; Aya Gruber, Who's Afraid of Geneva Law?, 39 Ariz. St. L.J. 1017, 1044 n.191 (2007); Markus B. Heyder, The International Law Commission's Draft Articles on State Responsibility: Draft Article 19 and Native American Self-Determination, 32 Colum. J. Transnat'l L. 155, 172 (1994); Jordan J. Paust, Medellín, Avilla, The Supremacy of Treaties, and Relevant Executive Authority, 31 Suffolk Transnat'l L. Rev. 301, 302 n.6 (2008); Jordan J. Paust, Self-Executing Treaties, 82 Am. J. Int'l L. 760, 773 (1988); Philip B. Perlman, On Amending the Treaty Power, 52 Colum. L. Rev. 825, 845 n.113 (1952);John Robert Renner, The Indian Child Welfare Act and Equal Protection Limitations on the Federal Power over Indian Affairs, 17 Am. Indian L. Rev. 129, 134 (1992); Stefan A. Riesenfeld, The Power of Congress and the President in International Relations: Three Recent Supreme Court Decisions, 87 Cal. L. Rev. 786, 974 n.75 (1999).
  64. ^ See United States v. Minnesota, 270 U.S. 181, 202 (1926) ("The propriety of this rule and the need for adhering to it are well illustrated in the present case, where the assault on the treaty cession is made 70 years after the treaty and 40 years after the last installment of the stipulated compensation of approximately $1,200,000 was paid to the Indians."); Lone Wolf v. Hitchcock, 187 U.S. 553, 567-68 (1903) (declining to consider whether tribe signed treaty because of "fraudulent misrepresentations [or] concealment"); United States v. N.Y. Indians, 173 U.S. 464, 469-70 (1899) (quoting statement of enrolled treaty doctrine from Fellows); see also Michael C. Blumm, Retracing the Discovery Doctrine: Aboriginal Title, Tribal Sovereignty, and Their Significance to Treaty-Making and Modern Natural Resources Policy in Indian Country, 28 Vt. L. Rev. 713, 762 n.317 (2004).
  65. ^ Aya Gruber, An Unintended Casualty of the War on Terror, 27 Ga. St. U. L. Rev. 299, 314 n.87 (2011); Louis N. Schulze, Jr., The United States' Detention of Refugees: Evidence of the Senate's Flawed Ratification of the International Covenant on Civil and Political Rights, 23 New Eng. J. on Crim. & Civ. Confinement 641, 655 n.92 (1997).
  66. ^ Fritz W. Scharpf, Judicial Review and the Political Question, 75 Yale L.J. 517, 545 n.97 (1966).
  67. ^ Armstrong, 1990, at 59–60.
  68. ^ United States v. N.Y. Indians, 173 U.S. 464, 489 (1899).
  69. ^ Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 671 (1974).
  70. ^ a b c Gen. Ely S. Parker Dead: A Full-Blooded Iroquois Indian with a Remarkable History, N.Y. Times, Sept. 1, 1895.
  71. ^ Bureau of Indian Affairs, Ely S. Parker Building Officially Opens Archived 2010-12-06 at the Wayback Machine (Dec. 21, 2000).
  72. ^ In re N.Y. Indians, 72 U.S. (5 Wall.) 761 (1866), rev'g Fellows v. Denniston, 23 N.Y. (9 E.P. Smith) 420 (1861).
  73. ^ 72 U.S. at 761.
  74. ^ 72 U.S. at 764–65.
  75. ^ 72 U.S. at 770 (footnote omitted).


  • William H. Armstrong, Warrior in Two Camps: Ely S. Parker, Union General and Seneca Chief (First Paperback Edition 1989) (1978). ISBN 978-0-8156-2495-0
  • Christopher A. Ford, Executive Prerogatives in Federal Indian Jurisprudence: The Constitutional Law of Tribal Recognition, 73 Denv. U. L. Rev. 141 (1995)
  • J.W. Vose, Gazetteer and Biographical Record of Genesee County, N.Y., 1788-1890 (F.W. Beers ed., Syracuse, N.Y., J.W. Vose & Co. 1890).

Further reading[edit]

  • Laurence M. Hauptman, Conspiracy of Interests: Iroquois Dispossession and the Rise of New York State (First Paperback Edition 2001) (1999). ISBN 978-0-8156-0547-8

External links[edit]