Page:Federal Reporter, 1st Series, Volume 8.djvu/899

, UNITED STATES V. PAYNH. 885 �Atlaniie & Pacific Bailroad, to-wit, about 30 miles therefrom ; that said set- tlement was made by him on or about the flrst day of May, 1880; that on the fifteenth of that month an officer of the United States anny and a squad of soldiers arrested him on or near said section 14, and removed him from said lands, and from said so-called Indian Territory; that he returned to his said claim and settlement on or about the fonrth day of July in said year, and Was again.on or about the fifteenth day of said month, arrested at or near the same place by the offlcers and soldiers of the United States army, and forcibly expelled from said lands and from said territory. �Tothisanswer plaintifE files a demurrer, and for cause thereof says: (1) that said ajjswer does not set up sufflcient facts to constitute a defenceto plain- tiffscomplaint; (2) that defendant's said answer is otherwise defective and wholly insufflcient to constitute a defence to plaintifE's complaint, and does not entitle him to the relief prayed fon �Wm,. H. H. Clayton,}]. S. Dist. Atty., arii i). W. C. Dwicdn,, for plamtiff. �Thos. H. Barnes, Jas. M. Baker, and Wm. Walker, fof defendant. �Pabkeb, D. J. The pleadings in thia ca^e seem to raise and pre- sent to the eourt for decision all the points there are in the case. The complaint alleges a state of facts which, if true, wpuld render the defendant liable to the penalty. Sections 2147, 2148, Eav. St. 374. No white person has a right to go into the Indian country to reside without a permit; a,nd if such person has once been put out, and returns, he becomes liable to a penalty of a thousand dollars, to be recovered in an action like the present one. The defendant denies that he is an intruder into the Indian country. He does not stop with this deniai, but proceeds in his answer to set up certain facts; but says these facts do not make him liable, but that he was an American citizen, legally and rightfully in the country. The demur- rer admits his facts, but says on them he is liable. �The question presented for decision in this case is, was the land upon which the defendant had attempted to make a settlement, and the place where he was arrested the urst and second time, ia part of, or within, the Indian country ? If so, upon the other facts he is liable to the penalty, because he admits his arrest and expulsion from the counti-y, and under the law the liability arises upon a second intrusion into the Indian country after having been once expelled. The de- fendant claims that the land purchased from the Seminoles by the United States, by the treaty made with them March 21, 1866, is a part of the public lands of the United States, and as such is open to home- stead and pre-emption settlement ; that he made a settlement thereon under the laws of the United States relating to homestead and pre- emptions. He does not show that he has taken any of the requisite ��� �