Page:Dakota Territory Reports.djvu/66

 6 Mass., 20; Paree v. Benjamin, 14 Pick., 356; Squires v. Hollenbeck, 9 Pick., 551; Greenleaf Bank v. Leverett, 17 Pick., 1; Irish v. Cloyes, 8 Vt.; Wehle v. Hawland, 42 How Pr., 399; Edson v. Weston, 7 Cow, 279; Sherry v. Schuyler, 2 Hill, 204; Ball v. Liny, 48 N. Y., 6.

J. B. & W'. H. Sanhorn, for appellees.

Is section 1, of the Non-Intercourse Act of 1834, 4th U. S. Statutes, 729, to be construed as fixing and determining what country or territory shall, for the purposes of that act, be Indian country, so that neither the course of events, subsequent treaties between the United States and the Indian tribes occupying the same, nor any thing, other than a subsequent act of Congress, can change its condition, so that it will not longer be "Indian country" for the purposes of that act?

The act declared that to be Indian country which was in fact unceded Indian country at the date of its passage. This is general history known to the courts as to all other men. At that time the country from the Red River of the North to the Missouri River, and from the British Possessions to the State of Missouri, with the exceptions of a few small reservations for other Indians, was occupied by the Dakota or Sioux Nation of Indians. By the treaty of April 29th, 1868, (15th Statutes, 636,) this nation ceded all these lands to the United States for ample consideration. (Article II. of said treaty, p. 686.) This cession is absolute and without any reservations. Articles eleven and fourteen of said treaty, so far as they relate to country north of the North Platte, must be construed together and with reference to other parts of the treaty. So construed, the country in these articles referred to is the country east of the summit of the Big Horn, and west of the 104th degree of longitude west from Greenwich. This was the country through which the military road passed that had to be closed, and in which the "military posts" were that had to be abandoned. (See Article sixteen of said treaty.)

All departments and officers of the United States Government have considered and treated the "Indian country" as