Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Fischer

Supreme Court of New York, Appellate Division

March 24, 1954

In the Matter of HENRY A. FISCHER, JR., as District Attorney of Franklin County, on Behalf of CHIEFS OF ST. REGIS MOHAWK TRIBE OF INDIANS, Appellant. MICHAEL CHECKMAN, Respondent.

Page 519

APPEAL from an order of the County Court of Franklin County (LAWRENCE, J.), entered November 2, 1953, dismissing an application for an order for the removal of respondent from an Indian reservation (Indian Law, § 8).

COUNSEL

Arthur B. Hart for Andrew Bero and others, as Chiefs of the St. Regis Mohawk Tribe of Indians.

Main, Pond & Main for respondent.

BERGAN, J.

The respondent Michael Checkman is a white man and is the husband of Minnie Grey Checkman, a member of the St. Regis Mohawk Tribe of Indians. The husband and wife have been residing together on lands in the St. Regis Indian Reservation in Franklin County. The lands on which they live are owned by the wife.

On December 17, 1952, the clerk of the St. Regis Mohawk Tribe addressed a formal communication to the District Attorney of Franklin County. The communication was brief and pointed. It stated: 'Will you please notify Mr. Mike Chekman a white man who is residing on the reservation to move off same. He has been verbally notified to move off the reservation.' The communication was signed and approved by three chiefs of the tribe. Their authority to act as chiefs is conceded.

The duty of a District Attorney when he receives such a communication as this rests on a statutory direction. He is required to institute a judicial proceeding before the County Judge of the county in which the Indian lands are located to remove the intruder (Indian Law, § 8). The statute is mandatory in this respect. Upon 'the written application of a majority of the chiefs' of the tribe the District Attorney 'shall make complaint of any intrusions on such lands, and cause the intruders to be removed.'

Who is an 'intruder' in the sense of the special statutory use of that word in this section is not left to rest on mere general meaning. It is given a contextual definition. The section heading describes the section as 'Intrusions on tribal lands' but what is intended to be meant by 'intrusion' becomes immediately apparent from the opening words of prohibition. 'No person', it reads, shall 'settle or reside' on any lands owned

Page 520

or occupied 'by any nation, tribe or band' of Indians except 'the members of such nation, tribe or band'.

This language makes the legislative intent explicit. It is the person not a member of the respective Indian unit who undertakes to reside on the lands who becomes an 'intruder.' It is such a person the District Attorney is required to proceed against to remove on the application of the proper Indian authorities; and it is such a person the County Judge is required to order removed. These are the 'intrusions' for which the statutory proceedings are framed.

If the Judge is satisfied that the person is not a member of the Indian unit involved, his duty to order his removal is mandatory. He 'shall' issue his warrant accordingly to the Sheriff. The only area of open judicial inquiry lies in the right to determine whether or not there is membership in the Indian unit. There is no room left for residual judicial discretion.

The individual or private Indian owner of land has no right to permit a person other than a member of the Indian unit to settle or reside on his land. The words 'owned or occupied by' used in connection with 'tribe' or 'nation' or 'band', suggest that the ownership and occupation there intended to be described was in the sense of a general sovereign or public Indian occupation of lands which might also be held in private Indian title or ownership. The sovereignty of Indian units of government for some purposes has long been recognized in New York to have ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.