Opinion
November 16, 1949.
Present — Taylor, P.J., McCurn, Vaughan, Kimball and Piper, JJ.
Judgment in favor of plaintiffs against Harry Patterson reversed on the law and facts and complaint dismissed as to said Harry Patterson, without costs of this appeal to any party; judgment in favor of plaintiffs against Franklin Patterson modified by striking out the first ordering paragraph thereof and inserting in its place a new paragraph, by striking from the second ordering paragraph thereof the words "Harry and", and by striking from the third ordering paragraph thereof the words "and Harry", and as so modified affirmed, without costs of this appeal to any party. Memorandum: There being no peacemakers' court on the Tuscarora Reservation, the Supreme Court of the State of New York has jurisdiction of this action (Indian Law, § 5; Peters v. Tallchief, 121 App. Div. 309; Mt. Pleasant v. Gansworth, 150 Misc. 584, affd. 242 App. Div. 675; Lyons v. Lyons, 149 Misc. 723, affd. 244 App. Div. 759). If the decision in United States v. Forness ( 125 F.2d 928) is to the contrary, we are not bound by that decision ( People ex rel. Ray v. Martin, 294 N.Y. 61, 73; see, also, George v. Pierce, 85 Misc. 105, cited with approval in People ex rel. Ray v. Martin, supra). It is the general rule that Indian usage and custom and not the law of the State of New York governs the descent and distribution of allotted lands on an Indian Reservation ( Matter of Patterson v. Seneca Nation, 245 N.Y. 433; Lyons v. Lyons, supra; Matter of Woodin v. Seeley, 141 Misc. 207, affd. 238 App. Div. 766). Where, however, no usages and customs are shown other than the practice of having the controversy determined by the Council of Chiefs and there is testimony that the Tuscaroras have adopted the law of descent and distribution of the State of New York, the court was not in error in applying the State law. This is so in this case, for the determination of the Council of Chiefs was contrary to that part of section 7 Indian of the Indian Law which provides: "No lands occupied and improved by any Indian according to the laws, usages or customs of the nation, tribe or band shall be set off to any person other than the occupant or his family." We have held that the Council of Chiefs of the Tuscaroras have no authority to administer the estates of deceased members of the tribe ( Mt. Pleasant v. Gansworth, supra; see, also, Peters v. Tallchief, supra). It follows that the custom testified to by defendants' witness Rickard, depending as it did on the action of the Council of Chiefs, was contrary to the statute and the decisions of this court and could not be accepted by the trial court. We think none of the alleged errors in the receipt of evidence or failure to receive evidence are sufficiently material to require a reversal, where, as here, the verdict was directed by the court. All concur. (The judgment determines the ownership of certain lands on an Indian Reservation.)