Bates v. Clark

• Decision Date: 01 October 1877
• Citation: 24 L.Ed. 471,95 U.S. 204
• Parties: BATES v. CLARK
• Court: U.S. Supreme Court

95 U.S. 204

24 L.Ed. 471

BATESv.CLARK.

October Term, 1877

ERROR to the Supreme Court of the Territory of Dakota.

The facts are stated in the opinion of the court.

Mr. Assistant Attorney-General Smith for the plaintiffs in error.

Mr. John B. Sanborn, contra.

MR. JUSTICE MILLERdelivered 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 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 withi 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 defences as sham and frivolous 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 north-west 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 offences 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....