'UNITED STATES V.
POUNDS OF RISING STAR TEA, ETC.
it might well be regarded as' an abandonment of the judgment, and as rendering it null and void,or liable to be declared so by the court. I
am constrained to hold, therefore, that since the act of congress of 1872 it has heen the duty of the clerks of the United States circuit and district courts in New Jersey to provide judgment books for recording all judg. ments in suits at common law in the same manner as is done in the courts of the state,and that they are entitled to charge for such recording the fees allowed by the of the act of congress, and that the party chargeable with the expense thereof is the successful party in each suit in whose favor the judgment was rendered. My conclusion therefore is that the plaintiffs in the above cases are liable for the costs of recording the proceedings and judgments therein, and that the clerk is entitled to collect the eame accordingly.
UNITED E;TATE8 t7. FORTY-EIGHT POUNDS OJ' RI!"'NG STAR
.Di,triet (JOUf't. No D. Oali[ornia. June 7. 1888.)
IN THE hmrAN COUNTRy-ABANDONED RESERVATION-KLARESERVATION. By act Congo April 8, 1864. the president was authorized to set Apart not exfour tracts of land in California for Indian reservatiolls, and in his discretIon to include therein existing reservations. The lands in existing reservations not thus r.etained were to be sold as therein prescribed. !<'our reservations were accordingly set apart, among which the previously existing Klamath reservation was not included; but possession of the latter, which contained about 40. square miles, and on which were about 200 Indians. was retained by the United Statelil. and SOme steps were taken towards its disposi· tion·. Held, that the Klamath reservation was not "Indian country" within the meaning of Rev. St. U. S. § 2133; prescribing the penalty for unlicensed trading in the Indian country. .
At Law. Seizure for violAtion of Rev. St. U. S. § 2133, providing that "any person other than an Indian who shall attempt to reside in the Indian country as a trader, or to intruduce goods or to trade therein without such license, shall forfeit all merchanJise offered for sale to the Indians ·ar found in his possession, and shall moreover be liable to a penalty of five hundred dollars." J. E. McElrath and D. T. Sullivan, for claimant. Joh'1l. T. CJarC!h for the United States.
HOFFMAN,J. It is not denied that the claimant traued with the lridians residing on what has been known as the" Klamath River Reservation" in this state. The question, to be considered is, is the land so "Indian country" within the meaningofthe section referred to. The Klamath Indian reservation wascreated.by executive order, dated
November 16,1855, pursuant to the act of March a, Itemhraced a tract of land extending 20 miles up the river from its mouth, and one mile in width on each side of the river. It would seem from official re., ports that du'ring the years following the establisbment of the reservation some 2,500 Indians were collected upon it. In 1861 nearly all its arable lands, with the improvements thereon, were destroyed by floods, and the reservation was rendered almost worthless. In tbis condition of affairs the Indian agent, Mr. Hanson, strongly urged tbe selection ofa new to replace the destroyed Klamath reservation. This reCOIIlmendation was adopted, but, it would 8e9m, merely as a tem.porary ref" uge for the Klamath Indians; and on the \Jth of April, 1862, the lands known as "Smiih River Reserve." or such nf them as had not already were, by order of 'the been purchased by Mr. Hanson from secretary of the interior, withdrawn from sale "for the present." The wq.s carried project of removing the Klamath Indians to a new out only in part. Between 400 and 500 of those Indians were actuany removed. As they were self-supporting; subsisting almost entirely on fish, it was not deemed expedient to force their removal, or to restore the old to. t4e. public dqmain. ,. three years floods, Snpenntendent WIley reported'that only 745 Ind13:ns at the Smith River agency. What bec.ame of t4?se In<:lirms, and of the large number said to have relnained orithe "desiroyprl" ,.nd worthless Klamath reservation, does not distinctly, appear. The Smith serve was discontinued by Rct of congress of July, 1868; and thetestimony in this case shows that the nun-iber of'lndians on the oJdXlamath reservation is now only about20Q. Their number is as many seek employment in the adjacent country. On the 8th April, 1864, an act of congress was passed "for .the better organization of Indian affairs in California." By this act the two ::;uperintendt:llcies t4eretofore exiJting were consolidated into one, and the president was authorized toset apart, at his discretion, not exceeding four tracts oflllnd, within the limits of Californin. to be retained by the United States as Indian reservations. The preoident was further anthnrized in his discretion to include in such tracts any of the reservations theretofore set apart in :the state, and to enlarge the same to such Hn.\3xtentas he might deem neceSf:'ary to adapt them to their intenr1etl purpose.. The lands of the existing reservations, not retained by thqH't:sident, were, by the third section of the act, directed to be'surveyed into parcels of suitable. size, which be appraised at their cash and offered for sale ,at public outcrYi hut no lot was to be sold for less than its appraised: value, nor for lesf' than $1.25 per' acre. The lai1ds\l1ot sO sold were therea.fter to be held su to sale at private: entry,' according ,to regulations as the secretary of the interior might prescribe. It will be noted that ·by thisa.ctthe lands of the old reservations not embraced within the new -reservations to be set apart by the president to L.lC public i domain, nor: subjected to. the operations of tfle general land laws. They ..are to be surveyed Hinto lots or parcels of suitable sizei'''tobeap'praised auction to 1.,h.:e highest bidder. ,Thelots areta be
UNITED STATES tl. FORTY-EIGHT POUNDS OF RISING STAR TEA, ETC.
ble," but indefinite, size. No right of pre-emption is to be acquired, by settlement or occu patioo; and the lands not sold at auction are to be held subject to private entry, not under the general land laws, but according to such regulations as the secretary of the interior may prescribe. Under' the provisions of this act four reservations were selected and set apart by the president: (1) The Tule River reservation, by executive order of October 3, 1873. Modified by executive order August 3, 1878. By this last order a part of the lands included in the order of October was restored to the public d'omain. (2) The Hoopa Valley, reservation, by executive order of June 23, 1876. It appears to have been suggested, that the Klamath reservation should be included within or in some way attached to the Hoopa Valley reservation. But this suggestion does not the boundaries of seem to have been adopted. In the executive thtl Jatter reservation aredietinctly defined. They embrace an area of 89,,572.43 acres; but do not include any portion of math River reservation. (3) Round Valley reservation, by executiv.e ders ofMarch 30, 1870; April 8. 1873; Ma)T. 18, 1875; .andJuly 26, 1816. (4) Reserves for Mission Indians, by executive orders ofJam1". aty31, 1870; December 27, 1875; May 15, 1876; August 25, 1877;; and various . orders and modifications of orders unnecessary to enumerate. Assuming that the various reserves known as "Mission Indian Uf"serves"weremade under the provisions of the act of April 8, 1864, ni1d constitute one reservation, it would seem that the authority conferred . upon the president by that act has been exhausted. That authority was as we have seen, to set apart "not exceeding four· tracts of land to be rttained by the United States for the purposes of Indian reservations." It is evident that ·among these the former Klamath' reservation, considered to. be "nearly worthless," was not included. The lands of that reservation thus became subject to the provisions of the third section of the act relative to the disposition to be made of.the "several Indian reservations in California which shall not be retained for the purposes of Indian reservations, under the provisions of the preceding section of this acL" In' the communication addressed to the district attorney by J. D. C.Atkins, commissioner of Indian affairs, he states that he does not find that any steps wereev.er taken to sell the Klamath reservation as an abandoned reservation,under the third section of the act of April 8, 1864, "nor has the general land-office ever been advised of the relinquishment of the sllme." But in the case of the appeal of·JohnMcCarthy from the decisof the general land-office suspending his pre-emption filing on a tract' <>i land within the Klamathreservatiol1, the secretary ofthe interior,sustained the d.ecision of the land-office, and states that the Klamath reservation has been regarded as an Indian reservation.sincethe passage of the act of April 8,1864; limiting the Indian reservations in California to fqur; and that various allotments within its limits have recently been made;"· and he quotes his lettE;.r of March 26 ;.1883 t to the. commissioner of Indian affairs', inwbich he stated that "when the selections,within sajd [email protected]
the secretary was dealing with the land as directed by the third section of the act ofl864, and that some steps had been taken to carry out the provisions of that section. That the lands continueQ: to constitute a reservation in the sense that they were not open to entry under the general land laws was undoubtedly true But they constitute an abandoned resl3rvation, to be disposed of as specifically provided for in section 3 of the act of 1864., Mr. Commissioner Atkins states, it will be noticed, that the general land-office has never been "advised of the relinquishment" of the reservation. This must be true. 'Nor has any executive order been made restoring the landS to the public domain. The Klamath River reservation not having been "retained for the purposes of Indian reservations," under the act of 1864, nor included within either of the four tracts of land set apart under its provisions, the third section took effect as a relinquishment of the lands" for the purposes of Indian reservations." But the United States still retained possession of the lands for the'purpose of disposing of them as directed by that section. To have, relltored them to the public domain, and thus subjected them to the operation of the general land laws, or to have permitted the intrusion of settlers, pre-emptioners, or holders of Valentine scrip, would have made it· impossible to carry into effect the provisions of section 3 in regard to . their disposition. Such being, in my judgment, the Jegal 8tatU8 of these lands, the question arises: . Can a person who has traded with Indians on the Klamath river be prosecuted under the provisions of section 2133, which forbid the introduction of goods "into the Indian country," or trading with the In.dians therein? The nature of the trade carried on by the claimant is not disputed. He has not resided on the reservation lands. and has made no settlement therein. At the proper season, he proceeds with his vessel to the river, and employs the Indians to fish lor him, supplying them with seines and other appliances. He pays them "in trade," furnishing them with various articles composing the cargo of his vessel. They are set forth in the libel of information, several hundred in number, and their condemnation is prayed for. They consist in great part of articles suited to' the wants of the Indians: tea, coffee. boots, shoes, overalls, hickory shirts, medical stores, etc. The very intelligent officer in charge of the Hoopa reservation, and who exercises some care and supervision over the Klamath Indians, stated to the court that he knew of no grounds of public policy or of consideration for the wellare of the Indians opposed to the traffic carried on by the claimant. The Indians are enabled to find employment, and receive in return for their labor supplies, the use of and taste for which must tend to promote their civilization, and their gradual renunciation of the habits and modes of living of savages. The offense of which the claimant is accused is thus purely technical; nor is the suppression of the traffic demanded by any consideration of policy, morals,or humanity. Whether he has committed any offense must therefore be determined' on technical grounds. Assuming that trading with on a reservation constitutes trading with Indians in an Indian country, my opinion is, that the Klamath lands are not such a res-
UNITED .' STATES 11. DENICKE.
ervation as brings them within the meaning of the terms "Indian country." The lands are not reserved "for the purposes of Indian reservations." The government retains possession of them for the purpose of selling them, as directed by law. If these lands do not constitute an Indian reservation, they are certainly not an "Indian country." They are held by the United States for sale. And even if this were not the case, the residence of 200 Indians on a tract 40 square miles in area would not make the whole tract "Indian country" within the meaning and intention of the law. Libel of information is dismissed,
UNITED STATES 17.
(Oircuit Court, 8. D. G«YI'gla,
POST-OJtFJCE-OFFENSES AGAINST POSTAL LAWs-LARCENY FROV MAILS-IIJllCOY LBTTER.
A letter with a fictitious address, which therefore cannot be delivered, is not "intended to be conveyed by mail, II within the meaning of the statute.
the indictment charges that a letter alleged to be embezzled was di·. recte'd to the treasurer of the Travellers' Insurance Company, and the proof shows it was directed to the Traders' Insurance Company, the variance is fatal. The practice of post-office inspectors, of stripping naked and searching the accused, without a warrant, commented on.
(8111labw by the Oourt.)
United States against Rudolph Denicke. Indictment for embezzling a letter intended to be conveyed by mail. Dupont Guerry, U. S. Atty., for the Government. Dessau Bartlett, for defendant. SPEER, J. The question arises in the following manner: The indictment charged that the defendant, Rudolph Denicke, postal-route agent, in the employ of the post-office department, embezzled a letter addressed ro the Travellers' Insurance Company of Pittsburgh. On the trial, the prosecution TJroved that a letter written to the Traders' Insurance Company ofPittsburgh was mailed at Gordon by Chambers, the assistant postmaster there, under the direction of Hancock. postal inspector. It contained a five-dollar bill. Chambers testified that he had no dealings with the Traders' or the Travellers' Insurance Company of Pittsburgh; that he did not wish the accident insurance policy for which the letter asked, and, 80 far as he knew, no such insurance compacy was in existence; and the district attorney thereupon admitted that the letter was written , to a fictitious address. It was also in proofthat the post-office inspector, Hancock,promised Chambers to intercept the letter in the mail; to use .the L:tnguageof the witness, ffto capture" it, and return Chambers his