Arizona citizen., 1872-02-10

1 the United States. And the errors all legged of the judgment of the Court below on the argument of the appeal, though not formally presented in this Court, were the denial as matters of law 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 con- troversy.
 It has been conceded by all, in every stage of this case, that Congress has power to dispose of and make all needful rules and regulations respect ing the territory or other property, and to regulate commerce with the Indian tribes, of the United States. Congress has to 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 Ill controversy.
 No other class of ordinary federal legislation is so full of pains, penal ties and forfeitures as that which regulates trade and intercourse with the Indians-a posteriori, therefore, this Court cannot be too cautious in declaring where and to whom 1t ap- plies.
 Throughout this whole case, the United States has relied on the Con- gressional act of June 30, 1884 A Stats. at Large, 729), especially its first section, as entitling 1t to decree for the forfeiture of the property in controversy. That section is as fol- lows: "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 (shalD be taken and deemed to be 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 ill and ty no other, to be for the purpose of this act" itself, so it says-how- ever, whenever and wherever 1t ap- plies and extends. This declaration shows the place of operation, of every pain, of every penalty, of every for feiture, of every license and of every prohibition, which the law authorizes concerning trade and intercourse with Indians. And in this statute, as we'll as in those since enacted, the limita- tion India 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 1t comprehends. Its purpose was obviously to declare what an Indian country should thereafter be. The limitation employed is ito ehich the hdian title has not been ertin- guished." This was and is the badge of law to show an Indian country to all mankind. The territory then and since which could abide this test, was the Indian country and no other.
 Section 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 In- dians, where ?-''in the Indian coun- try" Section allows an Indian Su- perintendent or Agent to refuse license to person of bad character, because it would not be proper for him to re- reside, where r." in the Indian coun- try" Section 4 forfeits the goods of the man who without license, resides as trader, or introduces goods, or trades, where !-"in the Indian coun- try. Such is the limitation through out this whole Act. All its penal con- sequences are referred to the Indian country.
 The same limitation is preserved in later Acts. The Act of June IA, 1858 (11 Stats. at L., 363). authorizes the Marshal to empty @ posse comitatus, not exceeding three persons, in any of the States, respectively, to assist in exc cutting process by arresting and bring ing in prisoners from the Indian coun- try. The Act of March 15, 1864, Sec tion 1 (13 Stats. at L., 29) makes 1t