ATTORNEY GENERAL'S OPINION THEREON. To the Honorable CADWALLADER COLDEN Esquire Lieutenant MAY IT PLEASE YOUR HONOR. In Council. I received the Order of this Honorable Board of the 26th Sepr last, made on Complaint of the Southold Indians, claiming Lands in that Township, whereby I am commanded as his Majesty's Attorney General for this Province to commence Suit for the Recovery of the Lands of Right belonging to the said Indians, unless the parties in possession of, or interrested in the premises, did on or before the third Wednesday in October last fully satisfy and content the said Indians in respect to the said Lands, and the agreement thereupon be laid before this Board and approved of. As I have yet done but little in pursuance of that Order and as I doubt whether as a public Officer any Thing is in my Power, to assist them, least I should appear wanting in the Respect due to this Board, I am induced to represent the Reasons why no Suit has been commenced by me in the Behalf of the Indians. And first I am not possessed of sufficient materials to judge of the Validity of their Claim, and the properest method of proceeding to recover their Right if they have any, nor can I procure them from the Indians, who are so extremely ignorant that after many Endeavours for that Purpose I cannot make understand what I want, and I have nor can get no farther Instructions relating to their Title, than what the Order of this Board contains and a Copy of the Town Order mentioned in the Order of Council, on which I would beg Leave to make some Observations. It appears that the Land the Indians claim is part of the Township of Southold, granted to the Inhabitants formerly by Letters Patent, and I presume was purchased from the Indians, as they do not pretend the Contrary, but claim under the Order made at the Town Meeting. I understand that the Township was granted in Joint-Tenancy, and that all the Right the Inhabitants have to hold in severalty, is the Orders made at their Town Meetings and entered in their minutes, and that tho this could convey no legal Title to hold in severalty, yet the Courts of Justice considering the Ignorance of those Times, and the Confusion the Contrary would introduce, have admitted them as valid for that Purpose. The Indians therefore if the Order respecting them is similar to those respecting the other Inhabitants, upon the same Principles will have as good a Title as the other Inhabitants have there, if their Right is not barred by any Thing subsequent to that Order. But it does not appear this Town Order respecting the Indians is similar to those respecting the other Inhabitants-I observe they are prohibited from cutting Wood on the Common Lands and tho for want of seeing any of these Town Orders respecting the other Inhabitants, I don't know whether there are any Words in any of them alloting the Lands to the persons for ever &c, yet I observe there is nothing in the Entry relating to the Indians, from whence it can be inferred (unless the Form of the Orders respecting the Inhabitants are in this Respects also deficient) any Thing more was intended than a Licence to settle and inhabit this peice of Land as Tenants at Will to the Inhabitants. If this Order should invest the Indians with a Fee simple in these Lands in severalty, as fully as the other Inhabitants are by similar Orders, yet I am informed, that in Consequence of the verbal Exchange made in the year 1691 the Indians settled on Indian Neck, and that they never settled at South Harbour if so, the Statute of Limitations, I fear will bar their Right to the Lands at South Harbour, And I doubt whether it will be thought by the Judges, (allowing the utmost for the Ignorance of those Times) that a bare parole agreement can so operate as to give them a Right to the Lands at Indian Neck, if it has been possessed against the Indians within Sixty Years. I am also farther informed that there is some Instrument executed between the Indians and Inhabitants respecting one or other of these peices of Land, but I cannot find out the purport of it, nor where it is to be found, The operation of that is proper to be known before a Suit is commenced. Your Honor will permit me further to observe that this Tribe of Indians are the Kings natural born Subjects, and have a Right to be redressed by the Laws of the Land, and by the same Method of proceeding as any other of the Kings Subjects and that I may be guilty of Maintenance should I sustain the Suit of one Subject against another, and that as a public Officer (if this is not a Governmental Affair as I conceive it is not) by maintaining the Cause of one Subject against another I am liable to very grievous Punishment, For by the first Rich. 2d "It is "enacted that no Person whatsoever shall take or sustain any "Quarrel by maintenance in the Country or elsewhere on "grievous pain, that is to say the Kings Counsellors and great "Officers on a pain that shall be ordained by the King himself "by advice of the Lords of his Realm, and other officers of "the King on pain to lose their Offices and to be imprisoned "and ransomed and all other persons on pain of Imprisonment "and Ransom &c." Upon the whole from the present View I have of the Indian Claim it appears to me to be very doubtfull on their side but it is possible it may be cleared up by better Information I hope I shall be excused in giving my opinion that as they are poor, and cannot bear the Expence of a Law Suit, when by sufficient Information their Titles shall appear good, and it can be known in what Method they should proceed, they ought to make application to sue in Forma pauperis, when they will meet with the same Indulgence as the rest of his Majesty's Subjects, and have an Attorney and Council appointed to prosecute for them. I have the Honor to be Sir New York Sept 27th 1764. Your most obedient and most humble servant, J. T. KEMPE. Dec 5-1764 Read in Council; the Council advised his Honour to recommend to the Indians to sue in Chancery for their Right and to inform them that on their application they will be assigned Council as paupers. |