HAROLD R. CORNWALL, CORA CORNWALL LOPEZ, MARTHA CORNWALL ROYSTER, DOREEN C. CORNWELL and ROBERT F. CORNWELL vs. ALEXANDER D. FORGER, TRUSTEE.

The plaintiffs herein seek a declaratory judgment as to whether they are the owners of a parcel of real property known as Lot 540 ("locus" or "Lot 540") in the division of common lands in Gay Head in 1878 (Exhibit 1) and later shown on a plan entitled "Red Gate Farm, Gay Head, Mass. as revised May 10, 1982" (Exhibit 11).

A trial was held on June 26 and July 7, 1987 at which a stenographer was sworn to record and transcribe the testimony. Five witnesses testified and nineteen exhibits were introduced into evidence, which exhibits are incorporated herein for the purpose of any appeal.

Based on the above, I find as follows:

1. The defendant, Alexander D. Forger, Trustee, claims ownership of locus through a deed dated January 16, 1978, recorded in the Dukes County Registry of Deeds at Book 353, Page 469.

2. The defendant trustee has filed a Petition to Register and to Confirm Title to said Lot 540. This petition is presently pending in the Land Court as Registration Petition No. 40960.

3. On January 13, 1982, the Land Court appointed Henry H. Thayer, Land Court Examiner, to prepare a Certificate of Opinion and Examiner's Summary with respect to the registration.

4. On August 22, 1982, Attorney Thayer filed his Certificate of Opinion and Summary (Exhibits 2 and 3). This certificate concluded that the petitioner (defendant herein) does not have "a good title as alleged, and proper for registration" (Exhibit 2).

5. Attorney Thayer's summary reveals an "inconsistent chain of title which may or may not affect the premises and which results from the fact that the person to whom the set-off of this parcel was made allegedly went to sea and never returned" (Exhibit 3). As a result of such inconsistency, Attorney Thayer concluded that the plaintiffs should be notified of the registration petition as possible heirs of the original person to whom the land was "set-off" in 1878.

The plaintiffs were so notified and as a result thereof brought this suit.

6. By virtue of a set-off under Chapter 213 of the Acts and Resolves of 1870, William C. Mingo was given fee simple ownership to Lot 540 by a deed dated December 21, 1878, recorded in said Registry at Book 65, Page 306.

7. The Senate Report to the Governor and Council regarding Indians of the Commonwealth in 1861 (the "1861 report") reports that a son was born to Mary C. Jeffers in February of 1860.

8. An 1871 Report of the Commissioner Appointed to Complete the Examination and Determination of All Questions of Title to Land and of All Boundary Lines Between the Individual Owners at Gay Head (the "1871 report") lists William C. Mingo, born February 19, 1862 as residing with Charles H. Mingo and Lydia Jeffers Mingo. William C. Mingo's mother is identified on this report as Mary C. Jeffers. The 1871 report also lists a Mary Ellen Peters as being born on December 17, 1866 to Mary C. Jeffers.

9. The Town of Gay Head was not incorporated until 1870 and from the evidence available, vital statistics for the period prior thereto seem at best "sketchy" and at worse nonexistent.

The defendant claims ownership to Lot 540 through a series of deeds which relate back to a deed executed by Charles H. Mingo in 1901. However, there is no instrument of record establishing that William C. Mingo was related either by blood or adoption to Charles H. Mingo nor of William conveying the property to Charles. The plaintiffs claim an ownership interest by descent through a chain which relates back to Mary C. Jeffers, William Mingo's mother.

The plaintiffs urge the Court to rely on a series of various "listings and censuses" together with obviously incomplete birth, marriage and death records from 1860 forward. However, no death certificate was produced for William C. Mingo nor was an attempt made to locate such record outside of Massachusetts. In addition, while the plaintiffs have attempted to establish a lineal tree to William's alleged mother, Mary C. Jeffers, no exhaustive search for other heirs has been made. I do not imply that such search would reveal anything more than the plaintiffs have established. It is probable that more complete records do not exist but such nonexistence does not exclude other possibilities of kinship.

It is undisputed that both William C. Mingo and Charles H. Mingo were members of the Gay Head Wampanoag Indian tribe. It is by virtue of his Indian status that William Mingo received Lot 540 in the set-off of 1878. William and Charles and other Indian families are listed in the 1861 and 1871 reports of the Gay Head Indians. Here, however, the plaintiffs choose to end their consideration of the Gay Head Indians. The plaintiffs argue that Charles H. Mingo could not be the father of William Mingo thus, the 1901 deed from Charles Mingo was improper and the ownership interest should pass to the plaintiffs.

The plaintiffs carry the burden of proving that William Mingo was not related to Charles Mingo or that he had never been adopted. Powers v. Russell, 30 Mass. 69 , 76 (1832). ''Where the evidence allows conflicting conclusions the burden of proof is significant." Borden v. New York, New Haven and Hartford Railroads, 339 Mass. 266 , 272 (1959). The genealogical expert testified that he was unfamiliar with Indian customs and did not research the Gay Head Indians' customs with regard to families, marriages or adoptions. In particular, the plaintiffs offered no testimony on the Wampanoag Indians' laws or customs with regard to descent and distribution. Documents in evidence indicate that Charles H. Mingo, born in 1832, was the son of William and Olive (Howasswee) Mingo.

The 1861 report on the Gay Head Indians identify an unnamed son born to Mary C. Jeffers in February of 1860. The 1871 report on the Gay Head Indians shows a son, William C. Mingo, born February 19, 1862 to Mary C. Jeffers. William Mingo is reported on the 1871 report as residing with Charles and Lydia Mingo. It is also documented that Charles Mingo married Lydia Jeffers on November 21, 1861.

Based upon the 1871 report, the plaintiffs allege that Mary C. Jeffers on December 17, 1866 gave birth to another child, named Mary Ellen Peters. This report shows a Mary Ellen Peters residing with Moses and Julia Ann Pocknet in Gay Head. Later records from the Town of Randolph establish that a Mary Alice Peters age 18, a Brockton resident born in Gay Head, married Haniford T. Cornwall in Randolph, Massachusetts on September 20, 1885. Her mother's name is not listed on the marriage certificate while her father's name is shown as Samuel Peters. The plaintiffs' title flows from this marriage and the assumption that Mary Alice Peters is the daughter of Mary C. Jeffers. While it is possible that Mary Alice Peters and Mary Ellen Peters are one in the same, it is just as possible that they are not. The plaintiffs' expert admitted that Peters was and is a fairly common surname in southeastern Massachusetts.

At best, the genealogical records entered into evidence are incomplete and ambiguous. Inaccuracies in color, age and status can be found in birth, marriage and death records of the same individual. While such records are admissible, these inaccuracies bear upon the weight such evidence will be afforded. It is unclear what procedure was utilized to record vital statistics on Gay Head families in the 1800's and by whom such information was reported, particularly as to the Indian inhabitants. The best indicators appear to be, the Special State Census of 1861 and the Federal Census of 1871 which are based upon personal interviews with various members of the Gay Head tribe and which categorize relationships by household rather than by family.

In this instance neither the plaintiffs nor apparently any other party is, or as far as can be determined from the evidence, has been in actual possession of locus. Accordingly, this is not a matter where one is claiming title by adverse possession and need show, as to adverse parties, that no such party is in possession and that diligent efforts have been made to notify all possible owners of record.

The plaintiffs have not established clear record title to locus. What the plaintiffs have presented is a series of facts connected by various assumptions, which if given full credibility and absent additional facts or equally credible assumptions adverse to their claim, could support a finding of record title in locus. While the plaintiffs need not extinguish every possible hypothesis adverse to their claim, the plaintiffs must overcome theories and assumptions which are as equally credible as their own reasoning.

Essential to the plaintiffs' case is a finding that William C. Mingo died with no heirs but Mary Ellen Peters and that Mary Ellen and Mary Alice are the same person. On the evidence presented, I cannot make that finding. The evidence presented shows that Mary C. Jeffers bore a son in 1860 or in 1862 or perhaps one son in each of those years and a daughter, Mary Ellen Peters in 1866. Moreover, I find it more probable than not that Charles Mingo was the natural father of William C. Mingo based upon the fact that both Charles and William Mingo claimed membership in the Gay Head tribe of Wampanoag Indians, that William resided in the household of Charles and that he was given the name of Charles' father. From this finding, it is not at all clear that Charles was not a successor in title to William.

Jurisdiction over the domestic relationships between Indians living in tribal societies is anything but clear. There are, however, federal cases which indicate that property relations as between family members are governed by tribal custom. See Yakima Joe v. To-is-lap, 191 Fed. 516 (D. Ore 1910). See also the language of Justice VanDeventer in United States v. Quiver, 241 U.S. 602, 603 (1916) "at an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians within each other to be regulated according to their tribal customs and laws." While I make no finding as to such tribal customs if indeed there were any, the burden is upon the plaintiffs in view of the known facts to demonstrate that there were no such customs as to defeat their claim. The plaintiffs rely on certain census records, which considering finding #9 above, are probably the only governmental records in existence. While these records have been admitted into evidence, I do not accept their content as absolute and I cannot draw the same conclusions as do the plaintiffs. Indeed, if I took such records as absolute, they would establish that Mary C. Jeffers gave birth to three children and not to two as the plaintiffs assert.

A further question is raised by the recent case of Doe v. Roe, 23 Mass. App. Ct. 590 , 592-593 (1987) where it is stated that:

It now appears to be well established that discriminatory treatment (at least by statute) of children born out of wedlock as compared with children born to parents married to each other, in matters of ... intestate succession ... usually will result in an unconstitutional denial of equal protection of the laws under the Fourteenth Amendment of the Constitution of the United States. The cases of the Supreme Court of the United States have increasingly treated as unconstitutional discriminatory treatment (at least by statute) of children born out of wedlock.

Cases cited. In this case, it is the father rather than the child who would be discriminated against. I do not decide whether or not the principal differs, nor do I attempt to address this point herein.

Moreover, the plaintiffs' evidence falls short of proving that William C. Mingo died at sea, unmarried, and without heirs (other than those mentioned herein).

The defendant argues that the plaintiffs have not established that William C. Mingo was not a relation to Charles H. Mingo and have requested that the Court apply a twenty year "lost deeds" statute of limitations or the doctrine of laches to bar the plaintiffs' claims of ownership interest in Lot 540. While the statute might apply if the defendant was seized and in actual possession of the property, this locus is open wild land and there is no "open and notorious" evidence of anyone being in possession. Thus, the Statute of Limitations and the laches defenses do not apply. The plaintiffs carry the burden of establishing themselves as sole heirs to William C. Mingo. This burden had not been met.

I find and rule that the plaintiffs have not established an ownership interest in Lot 540 located in Gay Head, Dukes County, Massachusetts.

The plaintiffs have submitted thirty requests for findings of fact and thirty-one requests for rulings of law. I have not attempted to rule on each of said requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Judgment accordingly.