tribe, some portions to the State and some portions to individual Indians, to be held in severalty by them, by treaties dated September 15, 1795, March 5, 1802, and March 21, 1805, respectively, the last-mentioned treaty disposing of "all the lands belonging to the Oneida Nation along the Fish Creek." (Records, Secretary of State: volume 2, pages 171-173, 191, 213 and 218.) As to the lands about Oneida lake, I understand Mr. Parker has reference to three tracts of land, each one-half mile square on the north shore of Oneida lake, concerning which the said treaty of 1788 says: "and especially there shall forever remain ungranted by the People of the State of New York one-half mile square at the distance of every six miles of the lands along the northern bounds of the Oneida Lake X and to remain as * * well for the Oneidas and their posterity as for the inhabitants of the said state to land and encamp on." I find that the same claim in reference to these three quartersections of land was made in the early 70's and was referred to a committee appointed by the Governor to investigate them. This committee reported (Senate Document No. 79, vol. 4, 1874) that no treaty could be found conveying or releasing the rights of the Oneida tribe in these lands along the north shore of Oneida lake. The committee also reported a considerable amount of testimony, some of the witnesses being aged Indians of the Oneida tribe, all of which testimony tended to substantiate the claim that the Oneidas then owned and had never released their treaty rights in and to these particular three pieces. The committee's report also showed that it had been claimed on the part of some of the State officials that the Oneida's rights to these parcels had been ceded by the treaty, but that the treaty itself could not be found or produced. There is included in this report a copy of a treaty made between the Oneida tribe and the People of the State of New York on September 15, 1795, concerning which the committee's report says: "In the treaty of September 15, 1795, the piece of land on the Onondaga river and the reservations on the north side of Onondaga (meaning Oneida) lake are again reserved, but not mentioned in subsequent treaties." In my judgment this is incorrect. The treaty of 1795 did not again reserve to the Indians the lands on the north shore of Oneida lake, but, on the contrary, this treaty conveyed and released to the People of the State of New York all the Oneida Indians' right, title and interest in and to these three parcels. A careful examination of this treaty of 1795 shows that the Indians ceded a large part of the land within the boundary and on the southern and western sides of the reservation established by the treaty of 1788, but from this tract, ceded by the treaty of 1795, there were excepted certain lands formerly granted to the Stockbridge Indians and there was also excepted one mile square on the east side of the Stockbridge lands, but there was included in the conveyance, not as a part of the lands still reserved, but as a part of the lands ceded and conveyed by this treaty of 1795: "All the lands lying on the north side of the Oneida lake appropriated and set apart to the use, benefit and behoof of the said nation of Indians at the treaty aforesaid (treaty of 1788), and also the land at the fishing place in the Onondaga river, mentioned in the treaty aforesaid." to me. While the language used in the treaty may seem at first to be ambiguous, upon an analysis of the whole language it seems clear Here were tracts of land on the north shore of Oneida lake, on which the Indians had reserved the right to encamp, although it was never claimed they owned them. The parcels were all outside of the boundary of the reservation established by the treaty of 1788 and formed no part of nor were they even contiguous to the lands ceded by the treaty of 1795. If, as stated in the report of the committee above referred to, the treaty of 1795 had not intended to cede and convey these three parcels, there would have been no mention made of them. If the treaty had intended to except these parcels from the conveyance it would have repeated the word "excepting" in the clause describing these parcels, but, on the contrary, the treaty, after conveying a certain tract with certain exceptions, adds to and include in`the lands conveyed these three parcels and the fishing place on Onondaga river. It, therefore, seems to me that the committee above referred to was clearly in error in stating that these lands along the north shore of Oneida lake were again reserved by the treaty of 1795, and I am of the opinion that the Oneida tribe ceded and released all their right, title and interest in and to these three parcels along the north shore of Oneida lake to the People of the State of New York in the treaty of 1795. (See Records Secretary of State, vol. 2, pp. 171-173.) From a conversation had by one of my deputies with Mr. Parker, I am informed that he also desires, on behalf of the Indians, to know why the annual payments provided to be made by the State in the treaty of 1788 are no longer paid to the Oneida Indians. The obligation of the payment of this sum annually, together with the payments of similar sums on account of various other treaties made with the Oneida tribe, was fulfilled by the payment in full of sums of money representing a principal sum, on which these annual payments were considered to be annual interest, by the State in the years 1838, 1839 and 1840, and all claims of the Oneidas on account of annual payments of money by virtue of the terms of treaties with the State of New York were thus settled and discharged. (Annual Report of Comptroller, 1840.) I return herewith Mr. Parker's letter, together with the enclosure. Very respectfully yours, EDWARD R. O'MALLEY, Attorney-General. Executive Law Sections 7, 8-State Board of Embalming Examiners. Re expenses, salary of Secretary and per diem allowance with mileage to members of Board. STATE OF NEW YORK, ATTORNEY-GENERAL'S OFFICE, ALBANY, September 3, 1909. Το THE HONORABLE, THE GOVERNOR, Executive Chamber, Albany, N. Y.: Dear Sir. I have your communication of June 21st in which you request my opinion as to whether certain expenditures made by the State Board of Embalming Examiners are within its powers. I note that complaint was made to you with respect to the management in affairs of this Board and that you appointed Owen L. Potter, Commissioner, to make examination and report pursuant to section 7 (now section 8) of the Executive Law. I also note that one of the grounds of complaint was that the Board had been extravagant in its expenditures, and that this involves the consideration of certain amounts paid to members of the Board. I further note from the extracts from the report of the Commissioner quoted in your letter, that this Board adopted by-laws under the provisions of the statute as follows: "9. The members of the board, with the exception of the secretary, shall receive ten dollars ($10) per diem for every day that the board is in session. 10. The members of the board shall also receive three cents mileage each way for traveling expenses. The compensation of the secretary for his manifold duties. shall be fixed by the board at its annual meeting for the ensuing year." It also appears from this report that the per diem compensation of ten dollars ($10) fixed by the Board on December 6, 1899, when the above resolutions were adopted, continued in force until July 17, 1900, when it was increased to fifteen dollars ($15). On May 11, 1904, it was again increased to twenty-five dollars ($25), and on July 30, 1907, reduced to fifteen dollars ($15), at which figure it now stands. The Commissioner also states: "It appears from the evidence that the per diem allowance to members for attending meetings of the Board was governed largely by the balance the Board had in its treasury." "On the examination, every member of the Board who testified, said that he had spent more money than he received by way of per diem and allowance for mileage, but no one specified the items that would show a greater expenditure than the per diem and mileage received.” The Commissioner then points out that at certain meetings at which sessions lasting into the night were held, the Board allowed itself a double per diem allowance, the night session being regarded as an extra day. The Commissioner reports that the allowance for mileage to members of the Board from December, 1898, to September 30, 1908, amounts to $1,638.42, and that this amount was paid without regard to the amount actually spent for traveling. The Commissioner also reports that the Secretary of the Board, required by the statute to be a member thereof, has received a salary varying from $1,000 per annum at the time of the organization, to $1,500 in 1904, the amount at the present time being $1,200 per annum. It also appears from this report “that the secretary spent three or four hours almost every day and sometimes the whole day up to ten or eleven o'clock at night in the performance of his duties." The Secretary also receives mileage and per diem in addition to this salary. The Commissioner adds to his report: "Whatever may be the legal right of the Board of Embalming Examiners to draw money for per diem services and mileage, I am of the opinion that they acted honestly and with the firm belief that they had the right to make the expenditures." Upon the foregoing facts and in view of the claim made by the Board that the payments referred to are within its authority, you ask my opinion upon the following questions: (1) "Whether the State Board of Embalming Examiners, under the law, is entitled to provide for, and its members are entitled to receive, a per diem payment for days that the Board is in session?" (2) "Whether the State Board of Embalming Examiners, under the law, is entitled to provide for, and its members are entitled to receive, a sum computed at a flat mileage rate for traveling expenses?" (3)Whether the State Board of Embalming Examiners, under the law, is entitled to provide for, and its Secretary, a member of the Board, is entitled to receive, a salary for his services?" |