The New York Indians
ERROR to the Court of Appeals of New York; the case being thus:
In 1786, and before the adoption, therefore, of the Federal Constituktion, the State of Massachusetts, which laid claim to four tracts of land in Western New York then occupied by native Indians (Senecas, chiefly), and known respectively as the Alleghany, Cattaraugus, Buffalo Creek, and Tonawanda reservations, entered, at the conclusion of some disputes, into an agreement with the State of New York by which New York ceded to Massachusetts, and her grantees, in fee, the right of pre-emption from those Indians and all estate in the reservations, except jurisdiction and sovereignty, which it was agreed should belong to the State of New York. By the fourth article of this compact New York stipulated thus:
'The said Indian reservations, so long as they shall remain the property of Massachusetts, shall be exempt from all taxes whatever, and no general or State tax shall be charged on the lands of the said reservations thereafter to be granted by Massachusetts, or on the occupants or proprietors of such lands, until fifteen years after the confirmation of such grants in the manner mentioned in the compact; but the said lands, and the occupants thereof, during the said period shall be subject to town and county charges or taxes only.'
Before the adoption of the Constitution, the then United States, and after its adoption, the Federal government, made several treaties with these Indians;  the Treaty of Canandaigua, November 11, 1794, being one,  by which the land in those reservations were acknowledged to belong to them, the said Indians, and by which it was agreed that the United States would 'never claim' the same, nor disturb the Indians, and that the land should 'remain theirs until they chose to sell the same to people of the United States.'
In 1791 Massachusetts parted with her rights in these reservations, and the same had, in 1838, become vested in Ogden & Fellows. In that year, 1838, a treaty was made between the United States and the Indians, poviding for the removal of the latter to the west of the Mississippi River; and at the same treaty a deed of conveyance was executed between the Seneca nation and Ogden & Fellows in fee, as joint tenants of the four reservations. The treaty provided for the removal of the Indians within five years. It was to become obligatory on the parties only after being proclaimed by the President. And as this proclaimation was not made till April 4, 1840, no right (as the treaty was construed by the officers of the Federal government, a construction in which Ogden & Fellows acquiesced) accrued to Ogden & Fellows till April 4, 1845.
Before the expiration of these five years, differences arose between the Indians and Ogden & Fellows, and in order to settle them, a new treaty was made in 1842 between the United States and the Indians; and a deed was executed between Ogden & Fellows and the Indians, by which it was agreed that the Indians should remain in possession of two of the reservations, to wit, the Alleghany and Cattaraugus, with the same right and title in all things that they had possessed before the sale. The two others (the Buffalo Creek and Tonawanda) being, by the deed, ceded to Ogden & Fellows.
The Indians remained in possession accordingly of the two retained reservations.
In 1840, May 9th, the legislature of New York passed an act, by which it authorized a highway tax to be assessed upon the Alleghany and Cattaraugus reservations (the two still in possession of, and subsequently agreed to be retained by, theIndians); and the tax was assessed.
In the following year, May 4th, 1841, the same legislature authorized the assessment of other taxes for making roads upon those same two reservations, and on one of the others also, the Buffalo Creek.
That act of 1841 contained eight sections.
The first authorized the board of supervisors of Erie County to appoint commissioners to lay out, open, and construct roads across the Cattaraugus reservation lying within the county, and the same in respect to the supervisors of the county of Cattaraugus, over the Alleghany reservation in that county.
The second provided for the survey of these roads by the commissioners, and conferred upon the supervisors the power to direct the repair and improvement of them.
The third provided for raising money to defray the expenses of constructing and repairing the roads, and for the building of bridges, and repairing the same, by levying for the years 1841, 1842, and 1843, on the lands in the Cattaraugus reservation, lying in the county of Erie, the sum of $4000, and on the Alleghany $4000, and on the Cattaraugus, lying within the county of Cattaraugus, $1000 each year.
The fourth provided for the survey and maps of the reservations, with a view to the taxation. with a view to the taxation.
The fifth section provided for the sale of the lands in case of default in the payment of the taxes. It contained, however, this proviso:
'PROVIDED, That no sale for the purpose of collecting said taxes shall in any manner affect the right of the Indians to occupy said lands.'
The eighth or last section was thus:
'The taxes hereby authorized may be imposed, assessed, levied, and collected as directed by this act, notwithstanding the occupation of the said lands, or parts or portions thereof, by the Indians, or by any other person or persons; and the failure to extinguish the right of the Indians, or to remove them from the possession thereof, shall not impair the validity of said taxes, or prevent the collection thereof.'
The act of 1840 did not contain the proviso, above given, to the fifth section of this act of 1841.
Under these acts, the county supervisors assessed taxes to the amount of $16,000, or more. One of the tracts afterwards retained by the Indians (the Cattaraugus), and one of those agreed at the expiration of the five years to be ceded to Ogden & Fellows, were, in addition to the beforesaid special tax, assessed; also, in 1840, 1841, 1842, and 1843, with ordinary town and county taxes. The taxes of no kind being paid, the lands were sold.
A case being agreed on, Fellows and others (Ogden being dead) brought suit in the Supreme Court of New York against the controller of the State and the purchaser at the tax sales praying that the assessments might be declared void. That court gave judgment for the defendants; a judgment which the Court of Appeals of the State affirmed. This judgment was now here for review; the question being whether the State of New York had power to tax the Indian reservations in that State, especially the Cattaraugus and Alleghany.
Mr. Martindale, Attorney-General of New York, for the appellees, and in support of the right to tax:
The Indians' title is a right of occupancy, use, and enjoyment, and not of alienation.  It does not include the whole property in the land. The 'ultimate fee' to these reservations which carries with it the right of pre-emption, is the real property, and this has hitherto proved far more valuable, in market and in treaties, than the Indian right of occupancy.
Now the assessment of taxes authorized by the law of 1841 does not relate to, or affect the Indians' title. On the contrary, that title-the right of occupancy-is by the fifth section expressly excepted from the operation of the statute.
The taxes were not authorized by the legislature until after the lands were conveyed by the Indians to our own citizens, and after the purchase had been approved by the general government. Under these circumstances, the intent presumable, not less than the intent expressed, was to impose and enforce the tax in respect to the interest rightfully acquired by our citizens, and it is only on that assumption that the plaintiff has any standing in court.
The assessments complained of are made then, in fact, against the right and property of Fellows, to which the treaty of Canandaigua, 1794, had no relation. His title is, without doubt, liable to taxation by State authority. 
In addition, the fourth article of the compact of 1786, between New York and Massachusetts, admits the right to impose town and county taxes, of which class the taxes here laid are. 
Mr. J. H. Reynolds, contra.
Mr. Justice NELSON delivered the opinion of the court.
^1 Treaty of Fort Stanwix, Oct. 22, 1784, 7 Stat. at Large, 15; Treaty of Fort Harmar, Jan'y 9, 1788, Id. 33; Treaty of Genesee, Sept. 15, 1797, Id. 601; Treaty of Buffalo Creek, June 30, 1802, Id. 70; Treaty of January 15, 1848, Id. 530; Treaty of May 20, 1842, Id. 586.
^2 7 Stat. at Large, 41.
^3 The Cherokee Nation v. The State of Georgia, 5 Peters, 1; Worcester v. The State of Georgia, 6 Id 515; Mitchel v. The United States, 9 Id. 711.
^4 McCulloch v. The State of Maryland, 4 Wheaton, 429; People v. Mayor, & c., of Brooklyn, 4 New York, 426, 427.
^5 See case of Denio, J., in Fellows v. Denniston, 23 New York, 425.