Page:Dakota Territory Reports.djvu/61

 Verdict and judgment for plaintiffs, and defendants appeal.

O. P. Stearns, for appellants.

Principal question on this appeal: was the country on the line of the Northern Pacific Railroad, immediately west of the James River in Dakota Territory, on the 21st day of February, 1873, Indian country, within the true intent and meaning of Non-Intercourse Act of June 30, 1834?

Section 1, of that Act provides "That all that part of the United States west of the Mississippi River, and not within the States of Missouri and Louisiana, or the Territory of Arkansas, and also that part of the United States east of the Mississippi River, and not within any state to which the Indian title has not been extinguished, for the purpose of this Act be taken and deemed to be the Indian country. (4 U. S. Stats., 729.) The plaintiffs contend that it was not the intention of Congress to include any country to which the Indian title has been extinguished, within the limits of "the Indian country" as defined by the Act, either east or west of the Mississippi River, that Indian country and country to which the Indian title has not been extinguished are synonymous.

The defendants contend that by the Act, all the country then in the United States west of the Mississippi River, not in Missouri, Louisiana, or Arkansas, was made Indian country for the purposes of that Act, whether the Indian title has been extinguished or not, that the words "to which the Indian title has not been extinguished" have no reference to country west of the Mississippi River.

It is well known that the country claimed and held by the several tribes and bands of Indians in the United States, is generally, if not universally without definite boundaries and that not unfrequentlyinfrequently [sic] portions of the same territory are claimed and alternately occupied by different tribes or bands of Indians. This was especially true of the vast prairie region lying between the Mississippi River and the Rocky Mountains. At the time of the passage of the Act in question It was inhabited by roving bands of Indians, who hunted wherever