FEDERAL nEPORTER, vol. 38.
named,may, be seized, and sold by the collector to pay Buch taxes; hencethereis no presumption that plaintiffs were coercE!d into the payment. of this penalty by reMon of the lien claimed upon the spirits .which 'Welle about to be exported. Demurrer should be overruled, and it is so ordered.
RISING STAn TEA, ETC.
(01:rcq,it Oourt, 'N.D. Oalifornia. April 1, 1889.)
hmuNs-TRADING IN INDIAN COUNTRY-KLAMATH RESERVATION.
Act AprilS, 1864, provides that there shall be set apart by the president, at his discretion, not exceeding four tracts of land, in California; for Indian reservations; that "said tracts to be set apart as aforesaid," mayor may not, in his discretion. include existing reservations. and that the reservations which shall not be retained, shall be surveyed and sold as therein provided. Four tracts were set apart, none. of them including the previously existiDg Klamath reservation. Held, that 'such Klamath reservation was not "Indian country," within the meaning of Rev. St. § 2133, prescribing the penalty for Qnauthorlzedtrading in the Indjan country. Affirming 35 Fed. Rep. 408.
On appeal district court. 35 Fed. Rep. 403. Seizure for violation of Rev. St. § 2133. Libel dismissed, and the United States appeal. John T. Carey, for U.S. appellants. J. E. McElrath and D. T. Sullivan, for respondent. Before SAWYER, Circuit Judge. SAWYER, J. The only question in this case, is, whether the country within the,Klamath Indian reservation, as set apart in 1855, is "Indian country," or "any Indian reservation," within the meaning of section 2133, oithe Revised Statutes, as amended July 31,1882, (22 St. 179.) Section 2 of the act of congress of April 8, 1864, (13 St. 40,) provides "that there shall be set apart by the president, and at his discretion, "not exceeding four tracts of land within the limits" of the state of California for Indian reservations; and it further provides that the said tracts to be set apart as aforesaid may, or may not, as in the discretion of the president may be deemed for the best interest of the Indians t() ,e; provided for, include any of the Indian reservations heretofore set apart in said state," etc. 'This statute contemplates future action by liDepresident, as is. manifest by the words, "shall be set apart," and the :words subsequently used, "said tracts to be set apart as aforesaid." Sec. tion3 provides" that the several Indian reservations in California which shall not be retained for Indian reservations under the provisions of the preceding section of this act" shall be surveyed and sold as tMreinafter provided. The president. did thereafter act from time to Wne, and he did set off four tracts in different parts of the state for the purposes provided for, and he did not include in anyone of them the "Klamath
Indian Resen'ation,» theretofore set apart. In setting apart these four reservations without including the Klamath reservation, he necessarily exercised his discretion, and,by implication at least, excluded them. As they were not retained by the future and further action. of the president "for the purposes of Indian reservations," "under the provisions of the preceding sections of this act," the reservation, by the terms of the act itself, abolished or abrogated the prior reservation. This necessarily follows from the provision requiring these lands not embraced in the reservations made by the action of the president under that act to be cut up into lots of suitable si7.e and sold, as provided in the act. It is true that they were not thrown generally into the general system of public lands, to be disposed ()f to pre-emptors and others according to that system, but they were to be disposed of under special provisions as in the act provided. The lands ceased to be an "Indian reservation" and they, certainly, were not "Indian country," within the meaning of section 2133 of the Revised Statutes, under which the libel in this case was filed. I concur with the district court in the views taken as reported in this case, 3.5 Fed. Rep. 403. The decree of the district court dimissing the libel must therefore be affirmed, and the libel dismissed; and it is so ordered.
CusTOMS DUTIES-WHAT SUBJECT TO.
The classification of imported goods is to be determined by their chief use.
B,UlE-ACTION TO RECOVER-BURDEN OF PROOF.
Plaintiff in an action to recover an alleged excess of duties has the burden of proving that the chief use of the goods is such as to bring them within the SChedule under which he alleges they are dutiable.
At Law. Action by W. H. Hagedon against A. F. Seeberger, collector, to recover an alleged excess of duties collected by defendant. Pe:rey L. Shuman, for plaintiff. DiBt. Atty. Ewing and A88t. DiBt. Atty. Harris, for defendant. BLODGETT, J., (charging jury.) This suit is brought to recover certain. moneys paid. by the plaintiff to the defendant as collector of custums of the port of Chicago, which the plaintiff claims were illegally assessed by the defendant as such collector upon goods imported by the plaintiff. The plaintiff entered these goods as "materials for making and ornamenting hats, bonnets, and hoods," and as such subject to a duty of 20 per cent. ad valorem, pursuant to clause 448 of Heyl's CompilaLaws, which I.will read to you: tion oithe United States "Hats, etc., materials for; braids, plaits, flats, laces, trimmings. tissueS, willow sheets and squares, used for making or ornamenting bats, bOllnets, V'.38F.no.5-26