1. In the absence of any different provision by treaty or by act
of Congress, all the country described by the first section of the
Act of June 30, 1834, 4 Stat. 729, as Indian country, remains such
only as long as the Indians retain their title to the soil.
2. Whatever may be the rule in time of war and in the presence
of actual hostilities, military officers can no more protect
themselves than civilians for wrongs committed in time of peace
under orders emanating from a source which is itself without
authority in the premises. Hence a military officer, seizing
liquors supposed to be in Indian country when they are not, is
liable to an action as a trespasser.
3. The difference between the value of the goods so seized at
the place where they were taken and the place where they were
returned to the owners is the proper measure of damages.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
The plaintiff in error, Bates, was a captain in the Army of the
United States, in command at Fort Seward, in the Territory of
Dakota, near the crossing of the James River by the North Pacific
Railroad, and Yeckley, the other plaintiff in error, was a
lieutenant under him at the time of the commission of the trespass
for which the judgment in this case was recovered against them. The
defendants in error, plaintiffs below, were doing a general
mercantile business on the James River, also near said crossing,
when a lot of whiskey, part of their stock of goods, was seized by
defendants. They brought this action to recover damages for the
trespass. The defendants pleaded their official character, that the
place where the
Page 95 U. S. 205
seizure was made was Indian country, and it was therefore their
duty to seize the whiskey which was kept there for purpose of sale,
and that, in accordance with the acts of Congress on that subject,
they had delivered the whiskey to the marshal of the United States
under a writ from the proper court, on a proceeding instituted by
the United States attorney for that district. They further pleaded
that before the commencement of this action, the goods had been
delivered to plaintiffs by the marshal and that plaintiffs had
suffered no damage. They also set up an order of the commanding
officer of the Department of Dakota.
The Act of June 30, 1834, entitled "An Act to regulate trade and
intercourse with the Indian tribes and to preserve peace on the
frontier," which is a very long and important act, begins by
describing in its first section the country or territory in which
that act shall be operative. It 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 Indian country."
4 Stat. 729.
The twentieth section of that act forbids the introduction of
wines or spirituous liquors within this territory. By the act of
1864, amending this section, it is made lawful for any Indian agent
or commanding officer of a military post who has reason to suspect
that spirituous liquors or wines have been or are about to be
introduced into Indian country in violation of law to search for
and seize the same, to be delivered over to the proper officer and
proceeded against by libel in the proper court and forfeited,
one-half to the informer and the other half to the use of the
United States. 13
id. 29.
If this whiskey was seized in Indian country, within the meaning
of the act of 1834 and the amendment of 1864, the plea which set up
that the defendants acted in good faith under that statute ought to
be sustained. This, the principal question in the case, is raised
by the action of the court below in striking out the plea which set
up these defenses as sham and frivolous,
Page 95 U. S. 206
and because the
locus in quo was not Indian country.
This mode of disposing of a plea which fairly raises a most
important issue of law seems to be growing in favor in the
territorial courts. It is an unscientific and unprofessional mode
of raising and deciding a pure issue of law. This should always be
done, when it can, by a demurrer, which is the recognized and
appropriate mode in the common law; or by exception, which amounts
to the same thing in the civil law, as it is applied to answers in
chancery practice. A motion to strike out a plea is properly made
when it has been filed irregularly, is not sworn to, if that is
required, or wants signature of counsel, or any defect of that
character; but if a real and important issue of law is to be made,
that issue should be raised by demurrer.
In the present case, this is unimportant, as the same question
is presented by the prayer for instructions and by the charge of
the court.
What, then, is Indian country, within the meaning of the acts of
Congress regulating intercourse with the Indians?
The first act of Congress on the subject is that of March 30,
1802. 2 Stat. 139. The first section of that act describes a
boundary, the description occupying over a page of the statute
book, and declares that this shall be distinctly marked under
orders of the President, and considered as the line of the Indian
territory, or Indian country as it is called indifferently in
several sections of the act. The country west of the Mississippi
then belonged to France or Spain. The boundary above mentioned,
commencing at the mouth of the Cayahoga River on Lake Erie, now
Cleveland, runs in a wonderfully tortuous course through the
country northwest of the Ohio River to the falls of that river, now
Louisville, then down that river to a point between the mouths of
the Cumberland and Tennessee Rivers, and thence through Kentucky,
Tennessee, and Georgia, to the St. Mary's River, pursuing all the
way the lines represented by treaties with various Indian
tribes.
Though many statutes concerning intercourse with the Indians and
prescribing offenses within the Indian country were passed, no
other attempt to define what was Indian country was made by
Congress until the act of 1834, the first section of which we have
given verbatim. In the meantime, we had
Page 95 U. S. 207
purchased the country west of the Mississippi, and had organized
two states and a territory there, and most of the Indians with whom
we had to deal lived there. The country east of the Mississippi,
and not within any state, was the region north of Illinois and
Indiana, and northwest of Ohio, now constituting the States of
Michigan and Wisconsin, and then under the government of the
Michigan Territory.
Notwithstanding the immense changes which have since taken place
in the vast region covered by the act of 1834, by the
extinguishment of Indian titles, the creation of states and the
formation of territorial governments, Congress has not thought it
necessary to make any new definition of Indian country. Yet during
all this time, a large body of laws has been in existence, whose
operation was confined to the Indian country, whatever that may be.
And men have been punished by death, by fine, and by imprisonment,
of which the courts who so punished them had no jurisdiction, if
the offenses were not committed in the Indian country as
established by law. These facts afford the strongest presumption
that the Congress of the United States, and the judges who
administered those laws, must have found in the definition of
Indian country, in the act of 1834, such an adaptability to the
altered circumstances of what was then Indian country as to enable
them to ascertain what it was at any time since then.
If the section which we have given
verbatim be read
with a comma or semicolon inserted after the word "state," or if,
without the insertion of any point there, we read it so as to apply
the words, "to which the Indian title has not been extinguished,"
to all the region mentioned in the section, we have a criterion
which will always distinguish what is Indian country from what is
not, so long as the existing system governing our relations with
Indians is continued. Read hastily, it might appear that these
words were limited in their application to that part of the United
States east of the Mississippi River. But a strict reading in that
sense is that it is the state to which the Indian title has not
been extinguished that governs the matter. "And not within any
state to which the Indian title has not been extinguished" implies
that Indians had title to some state then in existence, and that
there were other states
Page 95 U. S. 208
to which their title had been extinguished. This meaning is too
absurd to be considered.
On the other hand, if the section be read as describing lands
west of the Mississippi, outside of the States of Louisiana and
Missouri and of the Territory of Arkansas and lands east of the
Mississippi not included in any state, but lands alone to which the
Indian title has not been extinguished, we have a description of
the Indian country which was good then and which is good now and
which is capable of easy application at any time.
The simple criterion is that as to all the lands thus described,
it was Indian country whenever the Indian title had not been
extinguished, and it continued to be Indian country so long as the
Indians had title to it, and no longer. As soon as they parted with
the title, it ceased to be Indian country, without any further act
of Congress, unless by the treaty by which the Indians parted with
their title, or by some act of Congress, a different rule was made
applicable to the case.
In the case of
American Fur Company v. United
States, 2 Pet. 358, decided in 1829, the goods of
the company had been seized for violating the laws by their
introduction into the Indian country under the act of 1802. This
Court held that if, by treaties made with the Indians after the
passage of that act, their title to the region where the offense
was committed had been extinguished, it had thereby ceased to be
Indian country, and the statute did not apply to it.
So in the case of
United States v. Forty-three Gallons of
Whiskey, decided at the last term,
93 U. S.
188, where this act of 1834 was fully considered; while
the Court holds that by a certain clause in the treaty by which the
locus in quo was ceded by the Indians, it remained Indian
country until they removed from it, the whole opinion goes upon the
hypothesis that when the Indian title is extinguished, it ceases to
be Indian country unless some such reservation takes it out of the
rule. When this treaty was made in 1864, the land ceded was within
the territorial limits of the State of Minnesota. The opinion holds
that it was Indian country before the treaty, and did not cease to
be so when the treaty was made, by reason of the special
Page 95 U. S. 209
clause to the contrary in the treaty, though within the
boundaries of a state.
It follows from this that all the country described by the act
of 1834 as Indian country remains Indian country so long as the
Indians retain their original title to the soil, and ceases to be
Indian country whenever they lose that title, in the absence of any
different provision by treaty or by act of Congress.
The plaintiffs below violated no law in having the whiskey for
sale at the place where it was seized, and the twentieth section of
the act of 1834, as amended by the act of 1864, conferred no
authority whatever on the defendants to seize the property.
It is a sufficient answer to the plea, that the defendants were
subordinate officers acting under orders of a superior, to say that
whatever may be the rule in time of war and in the presence of
actual hostilities, military officers can no more protect
themselves than civilians in time of peace by orders emanating from
a source which is itself without authority. The authority of the
commandant of the post in the case was precisely the same as the
Indian agent or sub-agent, or superintendent, and it will hardly be
maintained that if either of them, wholly mistaking their powers,
had seized the goods, he would have incurred no liability.
So the plea that they had good reason to believe that this was
Indian country, and that they acted in good faith, while it might
excuse these officers from punitory damages, is no defense to the
action. If it had been Indian country, and it had turned out that
the plaintiffs had a license, or did not intend to sell or
introduce the goods, the fact that defendants acted on reasonable
ground would have exempted them from liability.
But the objection fatal to all this class of defenses is that in
that locality they were utterly without any authority in the
premises, and their honest belief that they had is no defense in
their case more than in any other, where a party mistaking his
rights commits a trespass by forcibly seizing and taking away
another man's property.
There was here no process from a competent court, nor any order
from any source having authority, and there is therefore no
defense.
As the damages found in the verdict are measured by the
Page 95 U. S. 210
difference in value of the property at the time and place where
seized, and the time and place where returned to the possession of
the plaintiffs, we see no error in the rule by which they were
ascertained.
Judgment affirmed.