of any spirituous liquor or wine to any Indian under the charge of any Indian superintendent or Indian agent appointed by the United States, or shall introduce or attempt to introduce any spirituous liquor or wine into the Indian country, such person, on conviction thereof before the proper district or circuit court of the United States, shall be imprisoned for a period not exceeding two years, and shall be fined not more than three hundred dollars. Provided however, That it shall be a sufficient defense to any charge of introducing or attempting to introduce liquor into the Indian country if it be proved to be done by order of the war department, or of any officer duly authorized thereto by the war department. 10 And if any superintendent of Indian affairs, Indian agent or sub-agent, or commanding officer of a military post, has reason to suspect or is informed that any white person or Indian is about to introduce or has introduced any spirituous liquor or wine into the Indian country, in violation of the provisions of this section, it shall be lawful for such superintendent, agent, sub-agent, or commanding officer, to cause the boats, stores, packages, wagons, sleds, and places of deposit such person to be searched; and if any such liquor is found therein, the same, together with the boats, teams, wagons, and sleds used in conveying the same, and also the goods, packages, and peltries of such person, shall be seized and delivered to the proper officer, and

the way of clothing, provisions, and agricultural implements will be given to them." -Circular Letter, June 12, 1869, from Commissioner of Indian affairs.

"Inasmuch as the military authorities, under the construction given to circular letter of this office to superintendents and agents, dated the 12th of June, 1869, are unwilling to pursue and arrest criminal and predatory Indians when within the Indian Territory, and to recover from them stolen property and captives taken into said Territory, it has been deemed advisable and expedient that the circular letter in question shall be so far modified as to permit hereafter, and until it shall be deemed necessary to direct otherwise, the military to enter into the Indian Territory and upon the reservations therein at all times for these purposes. I am advised by the secretary of the interior to so inform your department, and to suggest that on such occasions the military take with them, when practicable, an Indian agent or superintendent to witness the proceedings."

"In accordance with this determination, all superintendents and agents, affected by the modification indicated of the circular letter referred to, will be duly notified thereof, and instructed to act in harmony with the military in the premises."-Indian Commissioner to Secretary of War, June 21, 1871.

10 Nothing in this section "shall be construed to extend to any Indian committing said offenses in the Indian country, or to any Indian committing any offense in the Indian country, who has been punished by the local laws of the tribe, or in any case where, by treaty stipulations, the exclusive jurisdiction over such offenses may now of hereafter be secured to said Indian tribes, respectively; and anything in said act inconsistent with this act be and the same is hereby repealed."-Sec. 3, March 27, 1854, chap. 26. Under this section it is penal to sell liquors to an Indian, under charge of an Indian agent, though within the limits of a State.- United States v. Holliday, Wallace, 407. If spirits be found among the goods of a trader, in the Indian country, it is prima facie evidence of a violation of the act of Congress.-American Fur Company v. United States, 2 Peters, 359.

shall be 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; and if such person be a trader, his license shall be revoked and his bond put in suit. And it shall, moreover, be the duty of any person in the service of the United States, or for any Indian, to take and destroy any ardent spirits or wine found in the Indian country, except such as may be introduced therein by the war department.10 And in all cases arising under this act Indians shall be competent witnesses.-Sec. 20, as amended by act of March 15, 1864, chap. 33.

852. If any person whatever shall, within the limits of the Indian country, set up or continue any distillery for manufacturing ardent spirits, he shall forfeit and pay a penalty of one thousand dollars; and it shall be the duty of the superintendent of Indian affairs, Indian agent, or sub-agent, within the limits of whose agency it shall be set up or continued, forthwith to destroy and break up the same; and it shall be lawful to employ the military force of the United States in executing that duty.-Sec. 21, June 30, 1834, chap. 161.

853. In all trials about the right of property in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership.-Sec. 22, ibid.

854. It shall be lawful for the military force of the United States to be employed in such manner and under such regulations as the President may direct, in the apprehension of every person who shall or may be found in the Indian country, in violation of any of the provisions of this act, and him immediately to convey from said Indian country, in the nearest convenient and safe route to the civil authority of the Territory or judicial district in which said persons shall be found, to be proceeded against in due course of law; and also, in the examination and seizure of stores, packages, and boats, authorized by the 20th section of this act, and in preventing the introduction of persons and property into the Indian country contrary to law; which persons and property shall be proceeded against according to law. Provided, That no person apprehended by military force as aforesaid shall be detained longer than five days after the arrest and before removal." And all officers and soldiers who may

(a.) For disposition of persons arrested under this section see ¶ 854.

Persons apprehended by the military for unlawful traffic with the Indians, and also the property taken with them, should be placed in the custody of the marshal of

have any such person or persons in custody shall treat them with all the humanity which the circumstances will possibly permit; and every officer or soldier who shall be guilty of maltreating any such person while in custody shall suffer such punishment as a courtmartial shall direct.-Sec. 23, ibid.

855. So much of the laws of the United States as provides for the punishments of crimes committed within any place within the sole and exclusive jurisdiction of the United States shall be in force in the Indian country. Provided, The same shall not extend to crimes committed by one Indian against the person or property of another Indian.-Sec. 25, ibid.

12

856. If any person who shall be charged with a violation of any of the provisions or regulations of this act shall be found within any of the United States, or either of the Territories, such offenders may be there apprehended, and transported to the Territory or judicial district having jurisdiction of the same.-Sec. 26, ibid.

857. All penalties which shall accrue under this act shall be sued for and recovered in an action of debt, in the name of the United States, before any court having jurisdiction of the same (in any State or Territory in which the defendant shall be arrested or found), the one half to the use of the informer, and the other half to the use of the United States, except when the prosecution shall be first instituted on behalf of the United States, in which case the whole shall be to their use.-Sec. 27, ibid.

858. When goods or other property shall be seized for any violation of this act, it shall be lawful for the person prosecuting on behalf of the United States to proceed against such goods, or other property, in the manner directed to be observed in the case of goods, wares, or merchandise brought into the United States in violation of the revenue laws.-Sec. 28, ibid.

859. Any white person who shall hereafter set fire, or attempt to set fire, to any house, outhouse, cabin, stable, or other building in

the Territory or judicial district in which the capture occurred, whereupon it will be the duty of the United States attorney to institute proceedings for the recovery of the penalty and for the forfeiture of the property, under the statutory provisions already cited."

"Where the party apprehended has not only been engaged in unlawful traffic with the Indians, but in violating the articles of war (e. g. relieving the enemy with ammunition, etc.), he may be tried and punished by court-martial, or be turned over to the civil authorities to be proceeded against as above mentioned."—Attorney-general, July 19, 1871. See also 733, and note.

12 Nothing in this section, however, is to be construed as extending to the Indian country any of the laws enacted for the District of Columbia. See sec. 3, March 27,

said Indian country, to whomsoever belonging; and any Indian who shall set fire to any house, outhouse, cabin, stable, or other building in said Indian country, belonging to or in lawful possession of a white person, in whole or in part, and whether the same be consumed or not; shall be deemed guilty of a felony, and shall be punished by confinement and imprisonment, with hard labor, for not more than twenty-one nor less than two years.-Sec. 4, March 27, 1854, chap. 26.

860. Any white person who shall make an assault upon an Indian or other person, or any Indian who shall make an assault upon a white person, within said Indian country, with a gun, rifle, sword, pistol, knife, or any other deadly weapon, with intent to kill or maim the person so assaulted, shall be deemed guilty of a felony, and shall, on conviction, be punished with confinement and imprisonment, with hard labor, for not more than five years nor less than one year.-Sec. 5, ibid.

861. Any person who may drive or remove, except as hereinafter provided, any cattle, horses, or other stock from the Indian Territory for the purposes of trade or commerce, shall be guilty of a felony, and on conviction be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding three years, or by both such fine and imprisonment.-Sec. 8, March 3, 1865, chap. 127.

862. That the agent of each tribe of Indians, lawfully residing in the said Indian Territory, be and he is hereby authorized to sell for the benefit of said Indians any cattle, horses, or other live stock belonging to said Indians, and not required for their use and subsistence, under such regulations as shall be established by the secretary of the interior. Provided, That nothing in this and the preceding section shall interfere with the execution of any order lawfully issued by the secretary of war, connected with the movement or subsistence of the troops of the United States.-Sec. 9, ibid.

863. Any loyal person, a citizen of the United States, of good moral character, shall be permitted to trade with any Indian tribe upon giving bond to the United States in the penal sum of not less than five nor more than ten thousand dollars, with at least two good securities, to be approved by the superintendent of the district within which such person proposes to trade, or by the United States district judge or district attorney for the district in which the obligor resides, renewable each year, conditioned that such person will faithfully observe all the laws and regulations made for the government of trade and intercourse with Indian tribes, and in no respect violate

the same.18 Provided, That the laws now in force regulating trade and intercourse with Indian tribes, affecting licensed traders, and prescribing the powers and duties of the commissioner of Indian affairs, superintendents, agents, and sub-agents in connection therewith, shall be continued in force and apply to traders under this provision, except as herein otherwise provided."-Sec. 4, July 26, 1866, chap. 266.

864. Hereafter no contract or agreement of any kind shall be made by any person with any tribe of Indians, or individual Indian or Indians, not a citizen of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him or her, or any other person or persons in consideration of services for said Indians relative to their lands, or to any claims growing out of, or in reference to, annuities, installments, or other moneys, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be in writing, and executed and approved in the manner hereinafter directed. Sec. 1, May 21, 1872, chap. 177.

865. All contracts or agreements between such parties and for such purposes as named in the 1st section of this act shall be in writing, a duplicate or copy of which shall be delivered to each party thereto, as hereinafter provided. All such contracts shall be executed before a judge of a court of record and approved in writing thereon by the secretary of the interior and commissioner of Indian affairs. Such contract or agreement shall contain the names of all parties in interest, their residence and occupation; but those made with a tribe by their tribal authorities, the scope of authority and the reason for exercising that authority shall be given specifically. Such contracts or agreements shall state the time when and place where made, the particular purpose for which made, the special thing or things to be done under it, and, if for the collection of money, the basis of the claim, the source from which it is to be collected, the disposition to be made of it when collected, the amount or rate per cent. of the fee in all cases; and if any contingent matter or condition constitutes a part of the contract or agreement it

13 The right to regulate trade with the Indians resides exclusively in the general government. Congress has power to prohibit all intercourse with the tribes, except under a license, and such power does not necessarily cease upon their being included within the limits of a State. See 1 McLean, 254; 6 Peters, 515; and 3 Wallace, 407. 14 See ¶¶831-834 for antecedent legislation in reference to traders.