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ARIZONA CITIZEN. TUCSOK PIMA COUNTY, A. T., SATURDAY, FEBRUARY 10, 1872. pro. 18. Vol. n. J CITIZEN SATURDAY. Siibscrrptloix Itates: One Copy, one year, - - - $5 00 One Copy, six months - - o 00. Single numbers - - - 5 Advertislns Kates: "Twelve lines in this type, one sq. One square, ten lines, one time ?d 00 Each subsequent insertion 150 Trpfcssional cards, per month 3 00 Plain death notices, free. Obituary re marks in prose, 53 per square; in poetry. $2 50 per line. l'Jiiisiness Advertisements at Jieduced Rates. Office in northeast corner of Congress Hall Mock. JOE2T WASSON, Proprietor. Authorized Agents for The Citizen T. V FiRlinr San Francisco Schneider Grierson & Co Arizona City H. A. Bigelow will receive and receipt for money for Thk Citizen at Prcscott. Professional Cards, Adv'ts, Etc. "W HANCOCK, NOTARY PUBLIC. Conveyances and all Legal papers made out -with correctness anuaispaicn. Lecal Blanks and Blank Declaratory Statements always on hand. Phenix, A. T., Dec. 20, '71. jaO-tf OFFICE ON PLAZA, J3f Opposite the Convent, aul'2-tf It. A. O IF IF I C IB: WEST SIDE OF PLAZA, TUCSON, A. T. OPPOSITE THE CONVENT. -A slate for calls may be found at the COLES BASHFOBD, TUCSON AKIZONA. Will practice in all the courts of the Territory. ltf ,T. 33. MoCATTJTirsr, f District Attorney for Fima county.' TCCfON, ARIZONA. Office next door to Custom-housc.-ltf JOHN ANDERSON. TUCSON, ARIZONA. E special attention given to Chattel Mo rt "aes unaer mt mw ui ion. Office West side ot Uhurcn riaza. 21tf PIONEEK NEWS D E POT AND CIGAE STORE. o mHE LATEST NEWSPAPERS, PERI X odicals, -Magazines anu iovci&. , Also, a line assortment of Cigars, Tobacco, Pipes, Etc., constantly on uamL Lecinsky's block, Jongrcss-st, Stf Tucson, Arizona R TJ Visn. S SlLVEKBERG. Tucson. San Francisco, Jos.- Collingwood, 1 lorence. E. N. FISH & CO MAIN ST., FLORENCE, A. T. Wholesale and. Retail DEALERS IN General Merchandise. TTAVE constantly on hand a large and I 1 well selected stock ot Dry Goods, Clothing, Boots and Shoes, Groceries, rnvisions. Liauors. Cijrars and Tobacco, TTn.rdwarc. etc.. which we will sell at the tfcry lowest prices. We have, also, Hay t;nd Grain, constant ly on hand to supply the Public 5-tt'L Notice. milE COLORADO STEAM NAVIGA JL tion Company's Steamsliip Newborn Leaves San Francisco for mouth of Col orado river on first of every month, con necting witli river boats. Freight landed at Yuma in twelve (12) days from San Francisco. Agencies of the Company 010 Front street, San Francisco, California; Yuma and Ehrenbcrg, A. T. J. POLHAMUS, Jr., j irttMv General Superintendent, j THE ARIZONA IS PUBLISHED EVERY RIGHTS OF THE PEOPLE. Supreme Court Decision in What is Popularly Known as the Bicliard Confiscation Case. The United States, plaintiff and ap pellant vs. Certain Property. Wil liam Bichard & Co., respondent. This proceeding was instituted July 29, 1871, by petition ana niiorination in the District Court ot the lurst du dicial District of Arizona, for the con deiunation of certain merchandise therein described, alleged to have been forfeitable and seized as such June 20 lb71, near the reservation of the Pima and Maricopa Indians, by Capt. lred erick E. Grossman, Special Indian Agent, on a charge, of illegal traffic with the said Indians On the 21st of October last, Wil liam Bichard & Co. were, on their pe tition and claim as sole owners, ad inittcd to defend the said property against the decree of condemnation thus prayed for; and having tiled their bond, with sufficient sureties, in the sum of seven thousand dollars (7, 000) which was the value of the prop erty in controversy, as found upon appraisement, the case proceeded upon that. The property in contest, including a barrel of whisky, was alleged in the information, to have been seized on the Indian reservation above described This allegation, nowever, nas since been found to have been erroneous and been abandoned, as appears by the stipulations tiled of record in the present case, which admit the con elusions of fact on which the judg ment of the Court below was prayed for it is therein stated and agreed, by the attorney for the United States, as well as by the attorney ior the claim- ants, "that the place of business of William 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 ot the said reserve in tact. within a few ieet of said line ; and that the lands outside of the said Pima and Maricopa reservation are open to survey and pre-emption, including the place ot seizure. The deposition of the said Captain Grossman, referred to m the stipula tions filed, was agreed in open Court, on the hearing below, to be dispensed with as containing nothing but what was and is of judicial notoriety, " ex cept that the articles " alleged in the mlorination and in the said deposi tion "mentioned 'as on storage,' shall be for the purposes ot this trial con sidered as intransitu only." It may bo added as of public noto riety here, that the lands thus describ ed in the record as "outside of the Pima and Maricopa Eeservation " and " including the place of seizure," have been partially surveyed, and are now occupied, cultivated and improved under the authority of the United States by American and Mexican resi dents, either citizens or seeking and awaiting citizenship under our laws that the lands recently proposed to be annexed to the said reservation, alone contain, as appears from authoritative reports made by Congress, twenty-five ot these American and Mexican resi dents, and that the whole valley of the Gila Hiver, including the place of seizure, round it and outside of the reservation, is better settled with per manent residents, excluding Indians, than any other rural portion of An zona. The store of the claimants where the merchandise in controversy was seized, is near the principal high way from Tucson to Fort Yuma : and it is also matter of public notoriety here, that the claimants carry on an active trade, not only with the resi dents on the Gila river, but also with travelers by the same road. On the part of the United States, it was alleged upon the hearing of this case, in the Court below h irst That all the Territory of the United States west of the Mississippi Hiver, with little if any exception, is Indian country Second: That no one can Lawfully trade therein with an Indian or Indians, witnout a license irom some Indian Superintendent or agent and, Third: That the claimants, William Bichard & Co., having traded with the Pima and Maricopa Indians without such, license, their merchan dise seized as above stated and des- cribed, is forfeitable and ought to be J condemned. i The District Court, after argument upon the record of the case, refused j the decree of condemnation prayed for. An appeal was taken from its judgment to this Court, on behalf of the United States. And the errors al leged 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 a 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 in 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 bo too cautious declaring where and to whom it ap ftlies. Throughout this whole case, the United States has relied on the Con gressional act of June 30, 1834 (4 Stats, at Large, 729), especially its first section, as entitling it to a 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 Mississipp Biver and not within any State, to which the Indian title has not been extinguished, for the purposes of this act (shall) be taken and deemed to be Indian country." This provision must bo regarded as a description by the highest legislative authority, of what an Indian country is. It special purpose is declared, as in and by no other, to be " for the purpose ot this act itself, so it says how ever, whenever ana wherever it ap plies and extends. This declaration shows the place of operation, of every pain, ot every penalty, ot every tor- feiture, of eveiy license and of every prohibition, which the law authorizes concerning trade and intercourse with Indians. And in this statute, as well as in those since enacted, the limita tion Indian 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 it comprehends. Its purpose was obviously to declare what an Indian country should thereafter be. The limitation employed is "to which tlie Indian title has not been cxtin 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 2 of the same Act proceeds to apply this test. It is as tollows No person shall be permitted to trade without license with any ot the In dians, where? "in the Indian coun try." Section 3 allows an Indian Su perintendent or Agent to refuse license to a person ot bad character, because it would not bo proper for him to re- reside, where i " in the Indian coun try." Section 4 forfeits the goods of the man who without license, resides as a trader, or introduces goods, or trades, where 'i "in the Indian coun try. Such is the limitation through out this wholo Act. All its penal con sequences are referred to the Indian country. The same limitation is preserved m later Acts. The Act of June 14, 18o (11 Stats, at L., 363), authorizes the Marshal to empty a posse comitatus, not exceeding three persons, in any of the States, respectively, to assist m exe cuting 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 it penal for any person to sell, exchange, give, barter or dispose of any spirit- uous liquors or wine to any Indian under the charge of any Indian Su- perintendent or Agent, or to introduce the same into the Lodian country. Thus by an analysis of our laws regulating trade and intercourse with the Indians, the conclusion is reached that an Indian country as declared by the first section of the Act of 1834, is one " to which the Indian title has not been extinguished;" that there it is that a license is required to enable the citizen to trade with the Indians, and that in the Indian country as thus de scribed, apply the pains, penalties, prohibitions and forfeitures declared by our Acts regulating trade and in tercourse with the Indians. The venerable maxim of legal con struction expressio imhis est exclusio al terius which thus ordains that when in a statute one or a few of a class of par ticulars are enumerated, it must be taken that all the rest of this class not enumerated, are intended to be exclud ed from its operation, impels to the conclusion that in no other but the In dian country, as described by the Act of 1834, is a license required to enable the citizens to trade with the Indians, and that in no other do tho pains, pen alties, prohibitions and forfeitures de nounced by the laws regulating trade and intercourse with the Indians, ap ply at all. On this conclusion alone, the condemnation prayed for in this case might be denied. The magnitude of tho question involved, however, it is submitted, requires a more exhaus tive examination of the law ; and by different mode of investigation, of an other class of legal provisions, the judicial mind is carried to the same conclusion. The Act of 1834, already examined was the consummation of more than forty years of tentative Indian legis tion; the Act of 1802, of thirteen years of similar legislation under the Constitution. The Act of March 30 1802 (2 Stats, at L., 141), provides "Section 19. Nothing in that Act shall bo construed, to prevent any trade or intercourse with Indians liv ing on lands surrounded by settle ments of the citizens of the United States, and being within the ordi nary jurisdiction of the individual States." The same provision is found in the Act of July22, 1790 (1 Stats at L., 13 n; in the Act ot March 1793 (Sec. 13, 1 Stats. atL., 339), and in the Act of May 19, 1796 (Sec. 19, Stats, at L., 469), which was the last Act on the subject' preceding that of 1802, from which the citation under immediate consideration is taken. In reference to this provision, the Act of 1834, thus provides in its repealing clause: Sec. 29. "That such repeal shall not impair or aftect tho inter course Act of 1802, so far as the same relates to or concerns Indian tribes east of the Mississippi river." Why it may Tau asked, was this reservation in the Act of 1834, made in favor of States and citizens east of the Missis sippi river? It was because they comprised great numbers of citizens on lands of their own or of the United States, settled round Indians, which the Federal Government did not mean should be embarrassed by tho monop olies of licenses in their trade with. the Indians or with others. The Act of 1834, regulating trade and intercourse with the Indians, can also be traced partly as a consequence to the then recent cases ot the American ur Co, vs. The United States (2 Pet., 358) Cherokee Nation vs. The State ot Georgia (5 Pet., 7), and Worcester vs The State of Georgia (6 Pet., 547) the last of which was decided in the Supreme Court of the United States, only two years before the passage of the Act of 1834. At the date of tho act of 1834, there wero but two organized Territories, Michigan and Florida, east of the Mississipi Eivor. In these, however. as well as on the vast domain west of that river, were increasing com munities of citizens on lands of their own or of the United States, round Indian settlements: and it was to prevent these and similar ones, certain to arise from being cramped and em barrassed in their trade and intercourse, that the Indian country was so severe ly defined and described as already shown by the Act ot 1834, which cir- cumscribes it to territory m " which the Indian title has not been extin guished." The protection and improvement of the Indians has been a cherished policy of the United States. Not less so has been the settlement of the public domain by citizens, its organ ization and development as Terri tories, and their admission into the Union as States coequal with those already there. Tho laws regulating trade and intercourse with the Indians are the offspring of both tranches of this policy, and any construction of these laws, must be vicious which. ex cludes either branch of this policy from its consideration. The act of 1834, Sec. 29, we have seen, limited to the States east of the Mississippi river, the Act of 1802, Sec. 19, which allowed free "trade or inter course with Indians living on lands surrounded by settlements of the citi zens of the United States." The act of 1802, though thus limited, has never been repealed. After the passage of the Act of 1834, tho next Territorial establishment was that of Wisconsin, organized April 20, 1836 ; and the last has been that of Wyom ing, organized July 26, 1868. In the organic Acts of each of the fifteen Territories established since the Act of 1834, will be found a provision sub stantially if not literally as follows : " That the constitution and laws of the United States, which are not local ly inapplicable, shall have the same force and effect within the said Ter ritory, as elsewhere in the United States." This is the provision on the subject of the organic Act of New Mexico, which with its legislation at tho date of our organic Act, was by its second section, made applicable to the Territory of Arizona. Now the only test provided here, in regard to tho Constitution and laws of the United States, is their appli cability to the Territory of Arizona. The Constitution and laws of the United States, and all parts of them which are applicable to Arizona, have the same force and effect here as else where. Was tho 19 th Section of the Act of 1802, allowing free trade to citizens of the United States, settled round Indians, limited to the east of the Mississippi by the 29 th section of the Act of 1834, applicable to Ari zona ? If so then it must govern the present case. Still further, the Act of February 27, 1851, (Sec. 7, 9 Stats, at L., 519), is as follows: "All the laws in force, regulating trade and intercourse with the Indian tribes, or such provisions of the same as may be applicable, shall bo and the same are hereby extended over the Indian tribes in the Territories of New Mexi co and Utah." By the act of August 4, 1854 (Sec. 1, 10 Stats, at L., 575) the territory now comprised in Arizona was annexed to New Mexico. The law regulating trade and intercourse with the Indians was therefore the law of Arizona, so far as applicable, for more than eight years prior to its organic Act of February 24, 1863, (12 Stats, at L., 664), and would havo so remained after its organization as a Territory without a special provision on the subject. The question then recurs, is Sec. 19 of the Indian intercourse Act of 1802, allowing free trade with Indians, to citizen settlers round them, in force in this Territory ? Mere inspection, it is submitted, shows it to be so applicable, by all tho exeencies which made it universal in 1802, and applied it east of the Mississippi river, after 1834. In this Territory, there are settlements of citizens on lands of their own or so to become, unaffected by any Indian title, and round Indians. The store of William Bichard & Co., where tho controverted property was seized, is one of them. It cannot be for the benefit of either the Indians or the citizens, under such circumstances, to compel tho one class to buy of some monopolist, relieved of all competition by his license, or to compel the others to purchase licenses before they can sell to an Indian or Indians who choose to purchase where they can do so the cheapest or the best. Tho conclusion therefore is that William Bichard and Co. required no license to enable them to trade with tho Indians outside of any Indian res ervation, on land unaffected by Indian title, and that the proporty con troverted in this case, seized as it was on neither, is not forfeitable by reason of their omission so to do. To prevent misconception, it may not be improper to state some limita tions of a few of the foregoing terms and conclusions. An Indian title is one of mere oc cupancy, possession or use, subject to the right of preemption in tho United States. An Indian country is a portion ot Territory subject to an Indian title. inhabited by Indians. A mere solitude, ' or a country without Indians, could hardly be considered an Indian coun- CON'TIN'UED ON rOUKTU PAGE.