Page:Dakota Territory Reports.djvu/67

 extending to and including only such country as Indians occupy and which remained unceded by treaty. Large cities, wherein for many years liquors have been kept and sold by wholesale and retail, in violation of the Federal Statutes, if the appellants, are correct, have grown up in the Indian country of 1834. The knowledge of all men as to the present condition of the country embraced in the Indian country of 1834 is cited in support of this position.

The Act of 1834, wherein it defines and limits the "Indian country," has been superseded and modified by all the treaties since made between the United States and Indian tribes occupying the same, by which portions of such country have been ceded to the United States. Country ceded by the Indians to the United States is no longer Indian country. Treaties may supersede prior acts of Congress. ("The Cherokee Tobacco" case, 11 Wallace, 621; Foster & Elam v. Neilson, 2 Peters, 314; 8th Curtis, 121.) The construction claimed by the appellants leads to the greatest absurdity. If in 1835 all the Indians in the Indian country as described in the Act of 1834 had made a treaty ceding all that country, and had thereupon removed from the United States, the country would still have been Indian country and the non-intercourse law in full force. This could not have been for the reasons:

1. That the treaty would have superseded the law, and the country have become a part of the public domain, free and clear from all Indian title.

2. The reason of the law having ceased, the law itself ceased, and the general laws of the United States governing trade and intercourse between citizens would have become applicable to that country as to all other portions of the country.

Congress, by the Act of 1834, had no purpose to and did not make that Indian country which before the passage of said act was not so. Congress simply proclaimed the existing state of facts as to what the Indian country then included. For the time being and until portions of this country were ceded by treaty, voluntarily abandoned or taken from the Indians by conquest, this statute was binding on the courts,