delivered the following dissenting opinion:
I regret that I am unable to concur with the majority of the court in the opinion just read, and I proceed to give my reasons for such dissent. The grave importance of the subject-matter of the cause at bar, in my judgment, demands the most careful examination possible, to the end that a just conclusion may be arrived at in the premises touching the legal rights of the parties interested, and to be affected by the determination of the questions at issue. In the month of June, 1871, the agent appointed by the government for the confederate tribes of Pima and Maricopa Indians seized the goods in question, which are claimed by William Bi-chard & Co., for an alleged violation of the intercourse laws of the United States regulating trade and commerce with the Indian tribes. The information filed in the court below *42recites, among other things, that the illicit trade with the Indians was and had been carried on by the claimants on the reservation set apart for the tribes mentioned; but the stipulations of counsel upon which the case comes into this court disclose the fact that claimants’ place of business was off; but very near to, say a few feet from, the southern boundary of the reservation.
There is nothing in the record, however, to show that the claimants knew before the date of the seizure that their storehouse stood on the outside of the reservation boundary, nor does it appear that they became aware of its exact locality until a survey of the original lines of the reservation was had at their own instance', after the seizure had been made.
But this is not a material question for the purposes of this inquiry, and I pass it by for the present. The points decided by the majority of the court, as I have been able to gather them from the opinion of the chief justice who delivered the judgment of the court, are substantially:
1. That the seizure of the goods of claimants was unlawful and unauthorized, for the reason that the place where they were stored and kept was outside of the Indian reservation.
2. That the act of 1834, in its operation, is limited to that portion of the public domain of the United States where the Indian title has not been extinguished.
3. That an Indian reservation and an Indian country “ are so far legal equivalents that the laws of the United States regulating trade and intercourse with the Indians apply alike to both.” In other words, for the purposes of the intercourse laws mentioned, it is Indian country on the inside of the reservation lines, and not such on the outside; and that, whereas it would be a violation of the act of 1834 to trade with the Pima and Maricopa Indians on the inside of the lines of their reservation without a license, it would not be if the trade with the same Indians was had on the outside.
4. That the intercourse act of 1802 is in full force in this territory, and especially the nineteenth section thereof, allowing free trade and intercourse between Indians on a reservation5 and citizens settled on lands around them.
*435. That William Biehard & Co. require no license to trade with the outside of any Indian reservation on land unaffected by Indian title, and that the property seized is not forfeitable on account of their omission to obtain one to trade with the Indians.
6. That the certificate of probable cause was properly withheld, because nothing appeared in the case to show any probable cause for the seizure of the property.
The foregoing propositions furnished the premises from which the conclusions of the court appear to be drawn, but I shall not consider them exactly in the order I have mentioned them.
It is nowhere denied that congress has the power under the constitution to regulate trade and intercourse with the Indian tribes inhabiting any portion of the public domain of the United States; nor is it denied that this power has been exercised to the extent -necessary to meet the exigencies of the relative situation and condition of the government and the Indians every year since the adoption of the constitution. The faith of the government has always been pledged for the protection of those tribes with whom it has entered into treaty stipulations, or one to whom its intercourse laws have been extended, regulating trade and commerce therewith.
In the case of the Cherokee Nation v. State of Georgia, Chief Justice Marshall, who delivered the opinion of the court, held that an Indian tribe or nation within the United States is not a foreign state “within the meaning of the second section of the third article of the constitution.” In the same opinion the learned jurist held that the Indians were in a state of pupilage. “Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection, appeal to it for relief to their wants, and address the president as their great father.” It therefore follows that the relation of these tribes to the general government is marked by “peculiar distinctions,” in the regulation of trade and intercourse, “which exist nowhere else.” The first section of the intercourse act of 1834 defines what was known as the Indian country at that day, west of the Mississippi river. That designation, with the exception of the states of Missouri, Louisiana, and the terri*44tory of Arkansas, comprehended the whole of the possessions of the United States west of the Mississippi.
The territory over which that law was to have its operation had been acquired by the United States from the republic of France by treaty of cession at Paris, April 30, 1803, the sixth article of which treaty provides: “That the United States promises to execute such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians, until by mutual consent of the United States and the said tribes or nations other suitable articles shall have been agreed upon.” The act of 1834, and all subsequent treaties made with the Indian tribes inhabiting such territory, was enacted and made in pursuance of the treaty of cession of 1803, which practically recognized and secured to the Indians some sort of title to the soil, which the United States has from time to time extinguished by purchase under treaties for that purpose. The twenty-fourth section of the act of 1834 repealed the act of 1802 so far as its operation was concerned with reference to the Indians living west of the Mississippi river, but continued it in force over those east of it.
I can not agree with the majority of my brethren of the bench, that any subsequent legislation on the part of congress has resuscitated that act so as to make it operative everywhere within the jurisdictional limits of the United States.
The act of congress of 1851, extending all the intercourse acts, not locally inapplicable, over the Indians inhabiting the territories of New Mexico and Utah, does not by necessary implication or otherwise revive the act of 1802, for the purposes of such extension. There is nothing in the act of 1851, or any other act on the same subject, in my judgment, to indicate such an intention on the part of the national legislature. I conclude, therefore, that the act of 1.834, and the acts amendatory thereof, are the only laws in force in this territory, on the subject of trade and intercourse with the Indian tribes residing herein.
That portion of the territory in which is located the Pima and Maricopa reservation was acquired from the republic of Mexico by treaty in 1854, known as the Gadsden treaty, in which no provision is made respecting any Indian tribes who might be living here at the time; So the status of all *45such Indians must depend upon existing laws, in so far as the question of trade and intercourse with them is concerned. These laws have already been referred to, and the question recurs, how far are they locally applicable to the Arizona'tribes, and what operation did the congress intend they should have in the matter of regulating trade and commerce with them.
There is no pretense set up that these Indians occupy an analogous position, with reference to'the soil of the country here, to those who resided in the Indian country designated in the act of 1834,'and the question of Indian title can have no weight in the determination of the question at issue in this ease. The act of 1834 is sufficiently described in its title, viz., “An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontier,” and in the first section it expressly declares, after giving a description of certain territory, that such territory so described, with the exceptions therein mentioned, “for the purposes of this a‘ct, be taken and deemed the Indian country.” What were the purposes of that act? The question is fully answered in the title just given. The territory mentioned therein was Indian country for no other purpose than for the regulation of trade with the Indians, and its operation everywhere must be uniform to that extent. I agree with the learned chief justice who wrote the opinion of the court in this case, that we can not very well have an Indian country without the bodily presence of Indians, and where we have such Indians, whether they have submitted themselves to the control of the government, or occupy a hostile attitude thereto, the matter of trade and intercourse with them in either capacity must be regulated by the existing laws provided for the purpose. All the decisions on the subject pronounced in the supreme court of the United States agree that the various intercourse acts passed from time to time by congress have been intended to protect the Indians against fraud and deception, and to regulate trade and commerce with the various tribes upon the broadest principles of equity and justice. To that end those localities inhabited by Indian tribes have been carved into convenient districts or superintendencies, and a suitable person selected by the president of the United States for each of such dis* *46tricts, who, by and with the advice and consent of the senate, is appointed to superintend the affairs of the Indians in the particular districts; and for each individual tribe an agent is selected in the same manner, and these officers must report to, and are directly under the control of, one of the political departments of the government, known as the “Department of the Interior,” which is charged with the execution of all the laws having reference to Indian affairs. These officers are required to give ample bonds for the faithful performance of their duties as prescribed by law, among which is the selection of proper persons.to act as traders with the Indians, who are licensed for that purpose, and give bonds conditioned for the faithful performance of the duties imposed by law, and to obey all such rules and regulations in the premises as shall from time to time be prescribed by the head of the department referred to. There has been a superintendent of Indian affairs provided for Arizona, and there are agents for the confederate tribes of Pima and Maricopa Indians, with whom the illicit trade complained of in this cause was carried on; and these officers were in the active discharge of the duties of these several offices at the time the seizure of the goods in question was made. There were also at the same time licensed traders duly appointed and qualified to trade with these Indians. These traders are called monopolists by the learned judge who delivered the opinion of the court in this case, and he assumes that the act of 1834 was passed in consequence of the decisions in the cases of the American Fur Co. v. United States, Cherokee Nation v. State of Georgia, and Worcester v. State of Georgia, in none of which have I been able to find doctrines in support of the assumption. The language of the act itself makes it very clear, that while congress believes the provisions of the act of 1802 were ample for the purposes of trade and intercourse with the Indians east of the Mississippi, they were not deemed sufficient for the purpose in the case of the Indians on the -west side of thát river. All the states of the union at that time, except two, lay between the Mississippi river and the Atlantic ocean, and the act of 1834 was intended to operate upon those Indians inhabiting the territory mentioned in the first section thereof.
*47The majority of the court hold that inasmuch as the trade complained of, and the seizure of the goods in consequence thereof, all took place outside of the reservation, that per se the trade was not unlawful, but the seizure of the goods was. Is it true that the government and the laws afford no protection to the Indians outside of the lines of the reservation? Does the authority to regulate trade, traffic, or commerce extend no farther than the boundaries of such reservation ?
In the case of the United States v. Holliday, 3 Wall. 407, the supreme court said that if commerce or traffic or intercourse is carried on with an Indian tribe, or with a number of such tribes, it is subject to be regulated by congress, although'within the limits of a state. The locality of the traffic can have nothing to do with the power. The right to exercise it in reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or the member of the tribe Avith whom it is carried on.
The same doctrine Avas held in the case of the United States v. Haas, 3 Wall. 407.
I have no doubt of the power of the agents of the government to prevent any person from trading Avith Indians under their charge, unless specially authorized by Luv to do so, and this, whether on or off the Indian reservation. Whether the goods of the offender would be liable to seizure will depend upon the circumstances of the particular case, but that such agents have the power to make such seizure for a violation of the intercourse act, I have equally no doubt. In this case the certificate of “probable cause” should have been issued; its issuance is not a matter of discretion of the court, to be exercised at pleasure, and to Avithhokl it in this case is error. It is for the protection of an officer of the government, when acting officially in pursuance of what he conceives to be the Ieav, or under orders from his superior officer. In either case he is entitled to the certificate. •
Dor these reasons I can not concur in the opinion and j udgment of the court.