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TUCSOST, PBIA COUTYi A... T.j SATURDAY, DECEMBER 9, 1871,
Professional Cards, Adv'ts, Etc..
OFFICE ON PLAZA,
X3T Opposite the Convent aul'2-tf
WEST SIDfM3F PLAZA, TUCSON, A. T.
OPPOSITE THE CONVENT.
Ts?A slate for calls may be found at tlic
Drugstore. ,' 16tf-
-A-TTOia-ISr;- - AT LAW, '
? W ill practice fmlltne otmsfcf
the Territory. Itf
.1. i:. MttCAri RV.
ATTOZEHSTIE-Sr - AT - LAW,
District Attorney for Pima county.'
Office nest door to Custom-honsc.-ltf
ATTOBNET - A.T - LAW,
li traijes under tin. law of 1871.
Office West side of Church Plaza. .
BE. J. A. MAGINITY,
Office two doors nort't -t Tnllv, Ochoa &
DeLonir"-; . ,;,
V Sua. u )(' 'in.: v ntistry
Diseases of the Mouth, Jaw and Palate
ST" Aloperations warranted. fno4tf
-MJjr O IF B7 r
inics and Novels.
or? incut of
Also, a K'
Cigar3, Tobacco, Pipes, Etc.,
constantly on hand.
J. S. MANSFELD,
Lccinsky's block, uongress-st,
Stf Tucson, Arizona
fe5 V ZV DIEGO
TBI - WEEKLY MATT,'
3f OUR HORSE COACHES
. arrive at Tucson everv,
Sunday, "Wednesday and Friday
Mornings ; Depart at 0 p. m. on Tues
days, Thursdays & Saturdays,
Until Farther Notice.
TIME TO SAN DIEGO.. FIVE DAYS.
This will enable the traveling public to
reach San Francisco in EIGHT DAYS.
Fare to Arizona City 550
" San Diego, (iirgold coin or its equiv
JOHN G. CAPRON, Proprietor.
J. E. Bakek, Agent, Tucson.
J. F- BENNETT & CO.,
Ovorland 3 In 11 and Express
ARE NOW RUNNING A .Ca
two-horse vehicle thrceSSSgg
times a week, from Tucson to the Burro
Mines, where they connect with Coaches
For All Parts of New Mexico, Texas,
Chihuahua and Eastern States.
"Particular Attention paid to carry
ing Express Matter, and comfort of Pass
engers. Office at Lasinsky & Co.'s store,
MACHINISTS, or any person wanting
Babbit Metal, can find the best sub
stitute in type-metal, of which this office
.?u spare about fifty pounds very cneap.
TEE ARIZONA CITIZEN
PUBLISHED EVE11Y SATURDAY.
One Copy, one year, 5 00
One Copy, six months 3 00
Single numbers 25
AAvert "wlii-i" Ttal'es:
Twelve lines in this type, one sq.
One square,. ten lines, one . time $: 00
Each subsequent insertion 150
Professional cards, per mouth 3 00
, if Vo -' i '..if
ufuorkd Agents for the Citizen.
L. P. Fisher j n Francisco
SclMK-'.d'- Gr'ci -ri jfc 'o zomiCiiv
)i a W, ! 1 ' -viV - -,ic ..ml r"-; ,
foi niuiicy Jor Tiik Citizen at Prescott.
RIGHTS OF THE PEOPLE.
Judge Titus' Decision tltcreon in the United
States District Court for the First Ju
dicial District of Arizona.
The United States against certain
C. W. C. Howell, District Attorney
of and for the United States, and J. E.
McCafFrv, Attorney for the claimants,
William Bichurd & Co.
This case arises upon petition and
information on behalf of the United
States, filed July 29, 1871, for the
condemnation of certain miscella
neous merchandise therein mentioned,
alleged to have been forfeitable and
seized on the 20th of June preceding,
by Capt Frederick E. Grossman,
special Indian Agent, near the
reservation of the Pima, and Mari
copa Indians, in this District, on a
charge of illegal traffic with the said
On the 21st of Oct. last, William
Bichard it Co. were on their petition
'jiji of 7.!;i.i, wiiiiL 1 a tr
1 prop'ily i 'itrovt iv a
f iitr ' upon apprai : l, tin- uas-
pl'C'C'-i - LijJ Ll-lil,. xuu jl iy 111
contest, including a barrel of whisky
was alleged in the information to
have been seized on the Indian lies
ervation above described. This
allegation, however, has since been
found to be erroneous, and been
abandoned in the stipulations filed in
the present case, which admit the con
clusions of fact on which the judg
ment of the Court is prayed ; for it is
therein stated and agreed by the
attorney tor the United btates, as well
as by tho attorney, for the claimants :
"That the place of business of Wil
liam 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 the said reserve in fact
within a few feet of said line ; that
the lands outside of the said Pima
and Maricopa Reservation, are open
to survey and pre-emption, including
the place of seizure."
The deposition of Capt. Frederick
E. Grossman referred to iu the stipula
tions filed, was agreed in open Court
on the hearing of the case to be dis
pensed with as containing nothing but
what was and is of judicial notoriety,
" except that the articles " allegod in
the information and iu the said depo
sition, "mentioned 4 as on btorage,'
shall be for the purposes of this trial
considered as intransitu only."
It may be added as of public notoriety
here, that the lands thus described in
tho record as " outside of the Pima
and Maricopa Reservation," and "In
cluding the place of seizure," havo
been partially surveyed and are now
occupied, cultivated and improved,
under the authority ot the United
States, by American and Mexican
residents, either citizens or seekin
and awaiting citizenship under our
laws, that the land,s recently proposed
to be annexed to this reservation,
alone contained as appears from au
thoritative reports made by Congress,
twenty-five of thesp 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 portion of
Arizona. Tho store of the claimants
where tho merchandise in controversy
was seized, is near the principal high-
1 way fipih Tucsjii to Fort Yuma'; and
it is also niatfsi .of publi notoriety
here tha- the cZjmnauts carry on an
active tradu, only with. the. res
idents On tiuM&ila River, but also
-with travelers T this road.
On th,- part Si the Unit d States it
.was ' all -fi;ed JiV the jiresenfc case:
First Tli At tSliol its territory west
ofjtlie AT ippissvpi river, with little' if
ahy;iJe';XfepUoi?s. is' Indian country.
Second- ThatJ H.Q Jwe can lawfully
trade tlierein.frith' an Indian or Tn-
1: 1 1 v u-i..,,,, . a-
hail SniHTUtt'-'ntVat or A..
1 11.: f h. hll mail t
. i. -5 . a'-". jrSsffc yrt' 1 1 V
' 1 iTuR'and Jareopa bidi .
I ' '.cmxu, th' ir men han
me . . - -A.
:ti n. -n desorj i-l, is tb't'oi
'i'-. ni l'inn(-d
11 , .. on ilic ixjXTcy of the
United States! to, secure the. Indian
country tp its! aboriginal oecuiants,
until purchased by the -Ftderal Gov
ernment, or lij-iothei's under its direc
tion. ' The d'S'1 policy of the
United States as also been to secure
the early settlement of its public do
main, by citizens of its own, prepara
tory to the formation of new States and
Territories. Foi ie purposes of the
Indian protection, nearly all the licen
ses,, prohibitions.jfijjrfeitures and pen
alties arising from Indian intercourse
are by law veferrddo the J, - fian country.
This policy, as n othr cases, has
been the parent ' o our laws on this
branch of public" Affairs. The statu
tory exp ssion -of, this policy has,
hoever, bt-en by uo means clear and
consistent by Congress. Even now,
What i an If Han country, presents a
legal question of 110 obvious or easy
solution. This, however, is the es
sential inquiry of ; the present case,
and the careful examination of more
than eighty years, of Congressional
1. i:it: I 1
legislation, comprising by ac
uw''H'wHttnn tlian one h"ii-
Cougrew- tin' . i f"ents, ha- led to'
' the coneiusicu that :u Indian country
1 is one., tht ?ni ? - ti ' ru vhi h htui '
i )i b'; 1. '.f uvuiitstt." .ind which is shows an am;:
:u-tn:;: - inl'H.! 11 i- ,,aian- A I indul'nc' n j
ri" 'ii'le, f ;i. r". a nc ib-'c.- Thi-
. . woiUd 3. y; tV!l.-. li'i
any practical purpose, be considered
an Indian country, even if the Indian
title there could survive tho absolute
absence of its buneficiari s or their rep
resentatives. Anlndiatt lesenution pre
sents conditions quite .similar to those
of the Indian count n , a . 1 may for all
the purposes of the pi-seat case be re
garded as its legal equivalent.
An i ndian title under our law may,
it is .submitted, be defined as the oc
cupancy, jiommon or use of a certain
limited jwrtion of our national domain,
liy some trilte or trib&s of Indians, subject
to an occlusive riylit of pre-emption in
the United StaU. A.i L.itian reserva
tion mar be defined as a certain limited
jmtion of our national domain, assigned
ly the Federal Government to a tribe or
tribes of Indians, to be by them held accord
ing to the terms of the assignment.
Of our large mass of Congressional
Indian legislation, the three Acts of
March 3D. 102 (2d Sts. at L., 141) ;
June 30, 134 (4th Sts. at L., 729) ;
and March It, 1804 (13th Sts. at L.,
29), must be referred to as specially
operative or instructive in the present
The Act of 1834, regulating trade
and intercourse with the Indians, re
peals, mO'Ufi - or limits much of the
prc-cxisthi iugidlatiou 1: his subject.
It presents by no means very clearly,
however, a descriptive definition of the
Indian coim'ryas follows : " Section 1.
That all that part of the United States.
west of the Mississippi, not within the
Sta'tes of Louisiana and Missouri or
the Territory of Arkansas, and also
that part of the United States east of
the Mississippi river, and not within
any State, to winch tho unban title
.oas not been extinguished, for the pur
poses of this Act be taken and deemed
to ho the Indian country.
The essence of this definition exists
in the phrase, " To which the Indian
title has nc' 1). en extinguished." By
the structure of this provision, by all
its exigencies, and by the whole of our
laws in pari , jfeia, as will be more
fully shown hereafter, the qualifica
tion of tho phrase just cited must have
been intcmlf d by the framers of this
provision to extend to the public do
main west as well as cast of the Mis
sissippi river. lii'J tnaianutle had at
the date of this enactment been ex-
tincruished to portions of the national I
domain west of that river, not in- !
cluded in Missouri, Louisiana and Ar- J
kansas, as well as east of it; and
white settlements were advancing on
the territory thus freed from Indian
claim. It was beyond question to free
these settlers, as well as those simi
larly situated east 01 that river, from
the prohibitions and penalties of the ex
isting intercourse laws that this quali
fying phrase was inserted in this first
section of the Act of 1834.
It was not necessary to exclude the
States east of the Mississippi from
.tun" !y i'n- . x ot within ai.y
i.r ' ,;iii whu ': L io to k11:'i"
t,-. 1 cas; -jf lit . :v wy.hwai 'I: --i-
: 111:1. Il wua uofc iife-sary to
i Missouri, Luuinna and A;
ka, 1-. tom these dis.-t!.. ities. for ths"
iicia Ik en '(.an; by ' , ' nuuieratifi!
T- ' ;"Ti-- wLi.-L 10-
quires every part to have if posssible
its ojierativc effect in the main design
of a doubtful statute, impels irresisti
bly to the conclusion that this clause
of exclusion was inserted in the Act of
1834, to save all those parts of our
public domain wherever situated,
which were or should be relieved of
the Indian title, from all those licen
ses, prohibitions, forfeitures and pen
alties which were by our Indian inter
course laws referred to the Indian
An examination of our Indian in
tercourse laws for more than eighty
years, establishes the conclusion to
which this simple analysis of the pro
vision cited has led.
The first Congressional Act requir
ing licenses to trade with the Indians,
was that of July 22, 1790 (1st Sts. at
L., 137). That Act is concluded by
the following proviso: "That the
President may make such order re
specting tribes, surrounded in their
settlements by the citizens of the
United States, as to secure an inter
course without license if lie mar deem
- Ti. , -1
Ai . mteu'i- i, were th-.
t, affected by Indian tith
'1 :y t 1 t. n
iicd in -pt-rati" :i
The next Congressional Act on this
subject, was that of March 1, 1793
(1st Sts. at L., 339). This Act pro
vides: "Sec. 13. And be it further
enacted, That nothing in this Act shall
be construed to prevent any trade or
intercourse with the Indians living on
lands surrounded by citizens of the
United States, and being within the
jurisdiction of any individual State."
This Act was also limited to two years.
The next Indian intercourse Act was
that of May 19, 179(5 (1st Sts. at L.,
469), which enacts : "Sec. 19. And
be it further enacted, That nothing in
this Act shall be construed to prevent
any trade or intercourse with Indians
living on lands surrounded by settle
ments of citizens ot the united State
and living within the ordinary juris
motion ot am- ot the individual States
This Act also expired by its own lim
itation m two years.
The next Indian intercourse Act of
March 30, 1802 (2d Sts. at L., 139)
unlimited in duration, thus makes tin:
provision a permanent part of ou
law : " Sec. 19. And be it further en
acted, That nothing in this Act shall
be construed to prevent any trade or
intercourse with Indians living on
lands surrounded by settlements of
the citizens of the United States, and
bjing within the ordinary jurisdictio:
ot any of the individual States.
This provision of tho law has never
been repealed. It was by tue Indian
intercourse' Act of 1834, limited to
tribes east of the Mississippi as foi
lows : " Sec. 29. Provided, however.
that such repeal shall not affect any
rights acquired, or punishments, pen
alties or forfeitures incurred under any
ot the Acts or parts of Acts (thus re
pealed), nor impair or affect the inter
course Act ot ISOld, so tar as tne same
relates to or concerns Indian tribes re
siding east of the Mississippi."
It is proposed to show that this pro
vision has been applied to every Tor-
ritory organized since the Act of 1834,
above cited, and that the same is part
of the law ot Arizona.
Policy, as already . stated, is the
parent of law. In any doubtful
statute, not only the policy which
directly gave rise to it, may be in
voked to ascertain its true construction,
but also any cognate policy or branch
of nolicv. And while it is very true
that tho nolicv of the Federal Govern-
meut has always been to protect the
Indians and their lands from all
wrongs and invasions as far as prac
ticable, tho cognate policy of settling
the .public domain with citizens of the
United States, native or naturalized,
lias been one of the most cherished of
all our public affairs. In the Eevolu
tion, which resulted in or indepen
dence, the sparseness of our popula
tion was felt as a national calamity.
Our country subsequently started
it.1? nir,.i r . 1 . ;, Ci--
iy but lew
;.ii , u h ;t tr-uui
s- njT.-iy :nlurse
teiu iii ""-t-'i li i. 11 ;
Gr -i b.it un !
. witl- th--
1 .a'o. tii" Th- . l
01 p .ti . . . 1 .j-cui coionizers
on tins Heniisphere. The keen sense
of our popular weakness led the Fed
eral Government to invite European
immigration for territorial settlement
with the most liberal inducements.
This apprehension has passed away.
Notwithstanding, with a great and
growing population, and a Continent
if not a Hemisphere m contemplation
as its ultimate domain, the grasp
which the Federal Government has al
ways extended to European immigra
tion was never warmer than it is to
day ; and its policy for the settlement
of its public domain was never more
liberal than now.
The extension of licenses and other
prohibitions to any part of that do
main finds no encouragement in this
policy of the Federal Government
either past or present. Licenses are
necessary for the collection of revenue
in certain police regulations and in
some other cases. In all doubtful
cases, however, like their offspring
monopoly, they have been regarded as
1 'T -1 1 1? 1
dom, not to be encouraged by iiprov
ident legislation, or hasty judicial
hi the e.utious spirit v.hifb n"
01 iggtist, the question of li' nse
Ifpr'ii . - is, to bepurstt.il. Vl -i'
' !-'--!'- o i 1 " -it.-l a ""u T -iiia.
tin 1 SK'J, it wis - nnfessedly tn' . .
'n 1 the hind, aii-jlica le i -eve; Stat-.-
A- air. Lij jitcd, - (S. e -
that " Nothing in (that) Act '-!
construed to prevent any traue or in
tercourse with Indians -living on lauds
surrounded by settlements of the citi
zens cf the United States, and being
within the ordinary jurisdiction of any
of the individual States." This was
then as much a law of the United
States as if it had been applicable and
applied to every inch of the national
domain. It was limited to the States
east of the Mississippi by the Act of
1834, already cited, because the In
dians there were surrounded by settle
ments of citizens of the United States,
and because it was not then thought
by Congress either right or expedient
to fetter these citizens in their trade
with the Indians or any one else.
The citizen might then, as he may
now there, buy the game, peltry, furs,
fabrics of art, or the labor of an In
dian, or with few exceptions, any thing
else which he had to sell ; and pay him
in money, food, clothing or any other
property, with few exceptions, which
the Indian chose to take, without the
written or oral permission of an In
dian Superintendent, Agent or any
This law was not applied to terri
tory west of the Mississippi, except to
Missouri, Louisiana, Arkansas and other
ien-itory to which the Indian title had leen
extinguislied, because the Indians there
were not surrounded by citizens of the
United States. The whites in contact
with the Indians in the Indian
country, were fur traders, hunters.
trappers and others fitter, perhaps, for
savage than civilized association. It
would seem to be very proper, that if
these were allowed to trade with the
Indians, that they should be subjected
to the restraints of license.
All laws, whether fundamental or
derivative, with few or no exceptions,
pvTirpw nlon"- with the determination,
the desire or aversion of the law-niak-in"-
power. To the former class belong
ail laws for the encouragement ot
certain classes of labor or production,
rhp m-omotion of special interests,
real or personal or social improvement.
To the latter class may be assigned
all criminal laws, and those of civil
prevention or prohibition. The results
of any law ought to be and generally
are foreseen and contemplated by the
Legislature which passes it.
In Ar. TV., Sec. in., 01. 2, ot the
CONTINUED ON FOUKTII 1'AGE.