PROPERTY, AND WILLIAM BICHARD & CO.,
RESPONDENTS.

CONGRESS HAS POWER TO REGULATE TRADE AND INTERCOURSE WITH INDIAN TRIBES inhabiting any portion of the public domain of the United States.

INDIAN COUNTRY IS PORTION OF TERRITORY INHABITED BY INDIANS whose title has not been extinguished by the United States.

LICENSE TO ENABLE CITIZEN TO TRADE WITH INDIANS is not required except in an Indian country.

SEC. 19 OF ACT OF CONGRESS OF 1802, ALLOWING TRADE and intercourse with Indians living on lands surrounded by settlements of the citizens of the United States, is in force in Arizona, because its provisions are applicable to the condition of affairs existing therein.

PROPERTY OF TRADER SEIZED OUTSIDE OF INDIAN RESERVATION is not forfeitable by reason of the fact that he has no license to trade, from an Indian superintendent or agent.

INDIAN RESERVATION IS CERTAIN LIMITED PORTION of our national domain, assigned by the federal government to a tribe or tribes of Indians, to be held by them according to the terms of the assignment.

CERTIFICATE OF PROBABLE CAUSE SHOULD NOT BE GIVEN BY COURT, where the facts in the case show no reasonable cause for making the seizure.

THE facts are stated in the opinion.

C. W. C. Rowell, for the appellant.

Certificate of "probable cause" should have been granted by the court below. It is claimed by the appellant that if error existed at all in making the seizure, it arose from an improper construction of the intercourse act of 1834, and was error of law, therefore the certificate should have been granted. See Conkling's Treatise, 501, 502, 503; United States v. Riddle, 5 Cranch, 311.

It is claimed by appellant that all the territory within the United States, except that specially exempted, is, by the act of 1834, Indian country for the purposes of that act alone. See Intercourse Act of 1802, 2 Stats. at Large, 139, which specifies the boundaries of the Indian country as defined by that act, and also the act of 1834; 4 U. S. Stats. at Large, 729, which defines the lines as they now exist; also American Fur Co. v. United States, 2 Pet. 358; Cherokee Nation v. State of Georgia, 5 Pet. 1.

These cases show the status of the Indians in their relations with the government, as well as the interpretation of the act of 1802.

The case of United States v. Holliday, 3 Wall. 407, the most important case bearing upon this question since the act of 1834 was passed, settles the question of trade and intercourse with the Indians under the last-named act.

See also, Constitution of the U. S., sub. 8 of art. 3, as to rights of congress to regulate that trade.

J. E. McCaffry, for the respondent.

By Court, TITUS, C. J.:

This proceeding was instituted July 29, 1871, by petition and information, in the district court of the first judicial district of Arizona, for the condemnation of certain merchandise, therein described, alleged to have been forfeited and seized as such, June 20, 1871, near the reservation of the Pima and Maricopa Indians, by Capt. Frederick E. Grossman, special Indian agent, on a charge of illegal traffic with the said Indians.

On the twenty-first of October last, William Birchard & Co. were, on their petition and claim as sole owners, permitted to defend the said property from the decree of con

demnation thus prayed for; and they having filed their bond for seven thousand dollars, the value of the property, with sufficient sureties, the case proceeded.

The property in contest, including a barrel of whisky, was alleged, in the information, to have been seized on the Indian reservation above mentioned. This allegation, however, was afterwards found to be erroneous, and was abandoned, as appears by the stipulations filed and of record in the present case; which stipulations admit the conclusions. of fact on which the judgment of the court below was prayed-it being therein stated by the attorney for the United States as well as by the attorney for the claimants, "that the place of business of William Bichard & Co., wherein the goods, against which this action was brought, were seized, was and is off the limits of the described Indian reservation, very close to the southern boundary of said reserve-in fact within a few feet of the line; and that the lands outside the said Pima and Maricopa reservation are open to survey and pre-emption, including the place of seizure."

The deposition of the said Capt. Grossman referred to in the stipulations filed, was agreed in open court, on the hearing below, to be dispensed with as containing nothing but what was and is of judicial notoriety, "except that the articles alleged in the information and the said deposition mentioned as on storage shall be for the purposes of this trial considered as in transitu only."

It may be added as of public notoriety here, that the lands thus described in the records as "outside of the Pima and Maricopa reservation” and “including the place of seizure" have been partially surveyed, and are now occupied, cultivated, and improved, under the authority of the United States, by American and Mexican residents, either citizens, or seeking and awaiting citizenship under our laws; that the lands recently proposed to be annexed to the said reservation, alone contain, as appears from authoritative reports made by congress, twenty-five of these American and Mexican residents, and that the whole valley of the Gila river, including the place of seizure round it and outside of the reservation, is better settled with permanent residents, excluding Indians, than any other rural portion of Arizona.

A. T. REPS. I-3

The store of the claimants, where the merchandise in controversy was seized, is near the principal highway from Tucson to Fort Yuma; and it is also matter of public notoriety here that claimants carry on an active trade, not only with the residents on Gila river, but also with travelers by the said road.

On the part of the United States, it was alleged upon the hearing of this case, in the court below: First, that all the territory of the United States west of the Mississippi river, with little, if any, exception, is Indian country; second, that no one can lawfully trade therein with an Indian or Indians, without a license from some Indian superintendent or agent; and third, that the claimants William Bichard & Co. having traded with the Pima and Maricopa Indians without such license, the merchandise seized as above stated and described is forfeitable and ought to be condemned.

The district court after argument upon record of the case refused the decree of condemnation prayed for. An appeal was taken from its judgment to this court on behalf of the United States; and the errors alleged in the judgment of the court below, on the argument of the appeal, though not formally presented in this court, were the denial of the three propositions above cited, and the omission of that court to certify that there was probable cause for the seizure of the property in controversy.

It has been conceded by all in every stage of this case that congress has power to dispose of and make all useful rules and regulations respecting the territory or other property, and regulate commerce with the Indian tribes of the United States. Congress has to a considerable extent exercised both these powers.

It is not necessary to inquire whether congress has exhausted the whole of these two classes of powers, in its legislation thereupon. It is quite sufficient for the present case to determine whether or not it has passed any law which authorizes us to condemn the property in controversy. No other class of ordinary federal legislation is so full of pains, penalties, and forfeitures as that which regulates trade and intercourse with the Indians, a posteriori, therefore this court can not be too cautious in declaring where and to whom it applies.

Throughout this whole case the United States has relied on the congressional act of June 30, 1834, 4 U. S. Stat. at L. 729, especially its first section, as entitling it to a decree for the forfeiture of the property in controversy.

That section is as follows:

"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 other parts 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 (shall) be taken and deemed to be the Indian country."

This provision must be regarded as a description, by the highest legislative authority, of what an Indian country is. Its special purpose is declared, as in and by no other, to be "for the purpose of this act" itself, so it says, however, whenever and wherever it applies and extends. This declaration shows the place of operation, of every pain, of every penalty, of every forfeiture, of every license, and of every prohibition which the law authorizes concerning trade and intercourse with Indians.

And in this statute, as well as in those since enacted, the limitation Indian country, as here declared, is the place, and no other, to which all their consequences, whether lenient or severe, are applied.

A brief analysis of this provision will show us what it comprehends. Its purpose was, obviously, to declare what an Indian country should be thereafter. The limitation employed is, "to which the Indian title has not been extinguished." This was and is the badge of law to show an Indian country to all mankind. The territory, then and since, that could abide this test, was the Indian country, and no other.

Section 2 of the same act proceeds to apply this test. It is as follows: "No person shall be permitted to trade without license with any of the Indians." Where? In the Indian country.

Section 3 allows an Indian superintendent or agent to refuse license to a person of bad character because it would not be proper for him to reside-where? In the Indian country. Section 4 forfeits the goods of the man who