United States v. 196 Buffalo Robes

• Decision Date: 31 August 1872
• Citation: 1 Mont. 489
• Parties: UNITED STATES, respondent, v. 196 BUFFALO ROBES, ETC., appellants.
• Court: Montana Supreme Court

1 Mont. 489

UNITED STATES, respondent,

v.196 BUFFALO ROBES, ETC., appellants.

Supreme Court of the Territory of Montana.

August Term, 1872.

Appeal from the Third District, Lewis and Clarke County.

IN January, 1871, Langler and Carson, the claimants in this action, demurred to the libel of information, and assigned three causes therefor, to wit: That the goods were not seized in an Indian country; that the goods were purchased and procured in a regularly organized county, subject to settlement and occupation by citizens of the United States; and that the libel did not state facts sufficient to constitute a case of forfeiture. This demurrer was overruled by the court, WARREN, J., and claimants excepted.

The cause was tried in March, 1871, by a jury that returned a verdict for the United States. After the evidence for the respondent had been introduced, the claimants filed their motion for a nonsuit, on grounds similar to those assigned in the demurrer. The court, WARREN, J., overruled the same, and claimants excepted.

During the trial the claimants excepted to the rulings of the court in refusing to allow them to prove the contents of a certain license and receipt; and also that the country where the goods were traded for had been settled for several years by the whites; that it was in Choteau county, Montana; that the government was surveying the same into townships and sections; and that the land office in Helena was receiving filings upon the same from settlers in Choteau county.

Claimants filed their motion for a new trial, which was overruled, in December, 1871, by the court, WADE, J., and claimants appealed. The attorneys stipulated that the case should be tried on its merits as disclosed by the transcript, and waived the notice of appeal and undertaking. The other facts appear in the opinion.

SHOBER & LOWRY, and E. W. TOOLE and W. F. SANDERS, for appellants.

The court erred in overruling the demurrer. Courts take judicial notice of towns, counties, etc. 1 Greenl. on Ev., § 6; Organic Act, § 1. The organic act opened all of Montana Territory to settlement by citizens, with all the rights incident thereto. Organic Act, § 6, relating to legislative power; Acts 1865, 531, § 8, organizing Choteau county.

The information shows that Choteau county is not Indian country. If Choteau county is Indian country, then Helena is, and the property of its citizens is liable to confiscation. Such a doctrine is repugnant to justice and law.

The claimants had procured a license to trade, and the Indian agent, Reed, permitted them to trade under it. 1 Brightly's Dig. 427, §§ 52-54. Claimants acted in good faith under the permit of the superintendent of Indians. Forfeitures are odious in law. Persons acting in good faith, like claimants, should not suffer because officials authorized them to do what they did.

The evidence as to the surveys and settlement of the country, in which the goods were traded for, was competent. Would land be Indian country after a person had entered a quarter section in Choteau county and procured the government title thereto? The law on which respondent relies is not applicable to this case. It relates to an Indian reservation, or a country that is strictly Indian, in which settlements by whites are prohibited by law. 3 Kent's Com., Lecture 51.

If Choteau county is Indian country, within the meaning of the act regulating intercourse between the Indians and whites, courts, merchants and citizens are all trespassers. Spirituous liquors cannot be introduced into the Indian country except through the military department.

C. HEDGES, United States Attorney, for respondent.

The information alleges that the acts complained of were committed in the Indian country in Choteau county. The name of the county was added for local description. County lines were established by the legislature. The organic act expressly reserves the rights of Indians. Organic Act, § 1. It is conceded that this place, where the goods were traded for, is under the control of the Blackfoot nation. The treaty with that tribe has never been extinguished. The legislature of Montana cannot act in the premises. See Treaty, 11 U. S. Stats. 657. Indian country is defined in 1 Brightly's Dig. 427, § 51.

The court properly refused to allow claimants to prove the contents of a license. The license relied on was not valid. It had never been approved by the commissioner of Indian affairs. Regulations War Department, Nov. 9, 1847, § 7. The proof of its contents was immaterial.

The evidence relating to United States surveys and preemptions in Choteau county was properly excluded. It could only go to the extent of showing that the government had acted inconsistently with treaty stipulations. The force of such evidence cannot be extended beyond the point of immediate inconsistency. Such evidence, to have any value, must show that the locality, where trading was proved to have been done, had been surveyed and thrown open to pre-emption.

The claimants should have proved that they had a valid license to trade with Indians. In this they failed.

KNOWLES, J.

The facts appearing in the record are that the claimants, Carson and Langler, traded for one hundred and ninety-six buffalo robes, one elk robe, two beaver skins, one kit beaver, four wolf skins, and one buffalo cow skin, dressed for lodge, at or near a place known as Camp Cook, within the bounds of Choteau county, Montana Territory. That T. C. Powers made application for a license to trade with the Crow Indians, near Camp Cook, of Gen. Sully, the Indian superintendent for the Territory, for himself and McKnight. The license was made out by Sully, but it does not appear that it was ever approved by the Indian commissioner at Washington. It was sent to Parker, who then occupied that position, and by him returned to Viall, the present superintendent of Indian affairs, and by him lost. In this application Langler was named as a trader at Camp Cook. It also appears that McKnight had a license to trade with the Crow Indians at or near Camp Cook, but it does not appear that in this transaction Carson or Langler were acting for him or had any connection with his license. Powers testified as follows: “They (Carson and Langler) procured the goods from me that they traded for the goods described in the information. They were general Indian goods; no whisky. They were to pay me in furs for the goods they purchased of me, and were bringing them to me at the time they were seized.”

The attempt to prove the contents of a license to Powers and McKnight was properly refused. First. For the reason that a license is of no validity to trade with Indians without the approval of the Indian commissioner. See 4 Stats. at Large, 735, § 2, and Regulations of War Department, Nov. 9, 1847.

Second. Because a license to Powers and McKnight, although Langler may have been named therein as a trader, would not have been a sufficient warrant for Carson and Langler to trade with Indians in their own right, as it clearly appears from the evidence of Powers they did. Powers and McKnight could not give them authority to trade under their license. A license gives a personal privilege to those named therein to trade, and the privilege cannot be transferred to others. It does not appear, however, that there was any attempt to do any thing of this kind.

For the same reason as the last named, the court properly excluded the license to McKnight. It was not pretended that Carson and Langler traded under it for McKnight, but for themselves, and they could have received no authority to trade under it for themselves. Neither does it appear that Carson or Langler were named in it as traders. The court properly excluded the evidence of the settlement of white men in the region of country where the trading took place. The question of whether there were one or thirty other white men between Benton and Camp Cook would not determine the point as to whether it was an Indian country or not.

The claimants, then, were trading with the Crow Indians, at or near...