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1879.]

Opinion of the Court-Hillyer, J.

which in 1850, contained nearly all the law regulating intercourse with Indians, defines the term Indian country and fixes its boundaries. Utah was not then part of the United States, and did not become Indian country by the act of 1834. (U. S. v. Tom, 1 Or. 6; U. S. v. Seveloff, 2 Sawyer, 311.)

The act of 1851, extending the laws regulating intercourse with Indian tribes over the Indian tribes in Utah, does not in terms certainly make Utah Indian country. Certain laws which before that enactment had been confined in their operations to the country described and designated as Indian country by those laws, were extended over the tribes in Utah. The provisions of law applicable to those tribes may be enforced without first being obliged to declare the territories in which those tribes live Indian country. The laws, too, are extended over the tribes and not over any specified territory. So that intercourse with those tribes is regulated even after the territory and state of Nevada has been set off from Utah. The general provisions extending the constitution and laws over Nevada, if they are to be regarded as extending the intercourse laws so far as applicable over the state, do not make it Indian country, but only give force to laws which before were confined to the Indian country as defined by congress.

In my judgment, then, Nevada is not Indian country. If, however, it is admitted to be such it would hardly be necessary to make any argument to show that the sections under which the defendant is prosecuted, are not applicable to the tribes in Nevada outside of the Indian reservations.

The defendant, in one count, is charged with attempting to reside and trade in the Indian country. If Nevada is Indian country, then every trader and every man who introduces goods here is liable to the penalty, unless he has a license from an Indian agent. This is, of course, absurd. The organization of the state and its admission into the union require population. Congress has invited all citizens to explore the public mineral lands, and to make homes upon the agricultural lands. Traders must come with the rest, and goods must be introduced. It is the same as to

Opinion of the Court-Hillyer, J.

[July,

the charge of introducing liquor into the Indian country. All over the state, dealers in spirituous liquors are licensed by the United States, and revenue thus collected. If Nevada is an Indian country, every liquor dealer therein is guilty of a violation of section 2139. It was argued that these sections were so far applicable here as trade with the Indian tribes themselves is concerned. But the answer is, that trading and introducing liquors into the Indian country are offenses which are complete without alleging or proving any dealing directly with the Indians.

We are next to determine whether the Pyramid Lake Indian reservation is legally an Indian reservation. It is said in behalf of the defendant that there is no law of congress setting it apart or giving the president authority to do so. The United States attorney claims that the reservation has been legally established by the following executive order inscribed upon a diagram purporting to be a map of the Pyramid Lake Indian reservation, viz.:

“EXECUTIVE MANSION, March 23, 1874. “It is hereby ordered that the tract of country known and occupied as the Pyramid Lake Indian reservation in Nevada, as surveyed by Eugene Monroe in January, 1865, and indicated by red lines according to the courses and distances given in tabular form on accompanying diagram, be withdrawn from sale or other disposition and set apart for the use of the Pah Ute and other Indians residing thereon. “(Signed)

U. S. GRANT.” In Walcott v. Des Moines Co., 5 Wall. 681, it was held that land reserved from sale by the secretary of the interior for the special purpose of aiding in the improvement of the Des Moines river, and continued by the president and cabinet, was reserved by competent authority for that special purpose. The power of reserving lands is spoken of as a power which has been exercised ever since the establishment of the land department down to the present time.

In Grisar v. McDowell, 6 Wall. 363, the land in question had been exempted from sale and reserved for public purposes by an order of the president. The court say, “from

1879.]

Opinion of the Court-Hillyer, J.

an early period in the history of the government, it has been the practice of the president to order ” lands to be reserved from sale and set apart for public purposes, and that numerous acts of congress recognize the authority of the president in this respect as competent authority.

In that case the reservation was used for military purposes, but establishing a reservation for Indians is equally for a public purpose, and both these cases are authority in support of the legality of the president's order setting apart the reservation in question in this case.

No direct authority to the president to reserve lands and set them apart for public purposes is found in either case, but in each the president's authority is recognized by acts of congress which proceed upon the ground that he has it, and that the reservations so made are made by competent authority.

For instance, the act appropriating money for the Indian service in Nevada, in 1878, appropriates money for the support and civilization of Indians located on the Pyramid Lake reservation. (20 Stat. 85.) The same provision occurs in 1879, 20 Stat. 314, congress thus recognizing the reservation in question by name.

Again, in 1874, money is appropriated to assist the Indians in Nevada to locate in permanent abodes. By section 462 of the R. S. the commissioner of Indian affairs "shall,

agreeably to such regulations as the president may prescribe, have the management of all Indian affairs and all matters arising out of Indian relations." Again, section 465: “The president may prescribe such regulations as he may see fit for carrying into effect the various provisions of any act relating to Indian affairs.”

Many other acts of congress might be cited of like tenor, but these show, it seems to me, enough to warrant and require the conclusion that the Pyramid Lake reservation has been established by competent authority.

The very extensive powers given to the president by sections 462–465 in the management of Indian affairs might well be held to include the power to establish a reservation if there were no other acts in relation to the matter. The Opinion of the Court-Hillyer, J.

(July,

authority given the president to set apart five military reservations for Indian purposes by the act of March 3, 1852, had especial reference to the Indians in California. (10 Stat. 238, 332, 699, and 13 Stat. 39.) But were this not so, the repeated recognition by congress of the reservations established in Nevada by the president would be enough, along with the general powers given the president in Indian affairs to show his authority.

The third point made by the defendant is that if this be an Indian reservation it is not “Indian country," as that term is used in sections 2133 and 2139 of the R. S.

It must be conceded that there is no act of congress making the reservation in terms "Indian country," and that it is not within the boundaries established by section 1 of the act of 1834.

A large portion of the act of 1834 is included in the R. S., but section 1, defining the boundaries of the Indian country, is not. The act of 1834 is therefore repealed by section 5596, R. S., and section 1 not being incorporated into the R. S. is repealed also, unless it is a provision of a “private, local, or temporary character,” and so by virtue of the proviso to section 5596, still in force.

Section 1 is in these words: “Be it enacted, that all that part of the United States west of the Mississippi and not within the states of Missouri and Louisiana or the territory of Arkansas, and also that part of the United States east of the Mississippi river and not within any state, to which the Indian title has not been extinguished for the purposes of this act, be taken and deemed to be the Indian country.” (4 Stat. 729.)

This is neither private nor temporary, certainly. Then is it local?

The act of which it is a part is entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.”

This title indicates an act of a general and permanent character, and not local and temporary.

Although the first section defines Indian country, it is not restricted in its operation to that locality. It is, it

1879.]

Opinion of the Court-Hillyer, J.

seems to me, a part of the general law applicable everywhere in the nation as a definition of Indian country.

The case of Bates v. Clarke, 5 Otto 204, arose before the adoption of the R. S., and before December 1, 1873, while section 1 of the act of 1834 was in force, and can not be regarded as recognizing the definition of Indian country in that statute as still a part of our law.

I consider that the provisions of section 1 of said act are not within the proviso to section 5596, R. S., and must therefore be considered as repealed. It seems to me that the changed condition of the region embraced in that definition of Indian country no doubt induced congress to leave it out as no longer applicable.

There is, then, if I am right in this, no longer any statutory definition of Indian country, and at the same time the term is retained in a number of important sections of the R. S., and the question is, to what does the term now apply, and does it include an Indian reservation ?

As early as July 22, 1790 (1 Stat. 137), congress used the expression “Indian country,” in the first act “to regulate trade and intercourse with Indian tribes." No definition of it is given, but the tenor of the act shows that it was used as meaning country belonging to the Indians, occupied by them, and to which the government recognized them as having some kind of title and right. In the next act of 1793 (1 Stat. 329), Indian country and Indian territory are used as synonymous. The act of 1796 fixed a line, according to Indian treaties, from Lake Erie down to St. Mary's river, and speaks of the country over and beyond said boundary line as Indian country. (Sec. 16, 1 Stat. 459.) The act of 1799 (1 Stat. 743) fixed the same line, and prescribed a penalty for crossing or going within the boundary line to hunt, etc., or driving stock to range on “any lands allotted or secured by treaty with the United States to any Indian tribes.” The territory over the line is called "Indian country.” sections territory belonging to Indians is spoken of. So the act of 1802 (2 Stat. 139) uses the words Indian country and Indian territory as meaning the same thing, and in both instances it is the country set apart by treaties or otherwise

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