civilians not being "in the employ of any branch of the military serv ice." Card 147, August, 1894. It was the intention however to have paragraph 569, A. R. of 1895 (see 648 of 1901), apply to river and harbor work; but whether it applies or not the Secretary of War has discretionary power to require with reference thereto the reports mentioned in the regulations. Card 3418, August, 1897. 1496. Section 1241, Revised Statutes, prescribes that the President may cause to be sold any military stores which, upon proper inspection or survey, appear to be damaged or unsuitable for the public service. Held that the term "military stores" does not include public property purchased in carrying out the civil works of river and harbor improvements. The regulations, however, with reference to property accountability, as contained in the Army Regulations of 1895, were intended to cover all public property under the control of the Secretary of War, whether military stores or not. The regulations (and orders) relating to the inspection of unserviceable property with a view to its condemnation apply, therefore, to public property used in river and harbor improvements. There is however, no existing law which would prevent such modification of these regulations as would authorize the proper engineer officer to drop property, other than military stores, from his returns on his own certificate that its condition resulted from wear and tear in the service, that it was worthless and had been destroyed in his presence. Card 3419, August, 1897. 1497. A contractor engaged upon river and harbor work for the Government may obstruct navigation to the extent necessary to do his work, if such obstruction cannot reasonably be avoided. He is however liable both civilly and criminally for an unauthorized obstruction, and the Secretary of War is without authority to relieve him from such liability. Card 3839, February, 1898. INDIAN COUNTRY. 1498. Held that the term "Indian country," as employed in the statutes regulating trade and intercourse with the Indians (see, particularly, Ch. IV, Title XXVIII, Rev. Sts.), might properly be defined in general as including the following territory, viz: Indian reservations occupied by Indian tribes; other districts so occupied to which the Indian title has not been extinguished; any districts not in other respects Indian country, over which the operation of those statutes may be extended by treaty or act of Congress. XXXIX, 214, October, 187. 1 See this opinion as adopted and incorporated in G. O. 97, Hdqrs. of Army, 1877; also, in the same connection, 14 Opins. At. Gen., 290; United States . Forty-three Gallons of Whiskey, 3 Otto, 188; Bates v. Clark, 5 id., 204; United States v. Seveloff, 2 Sawyer, 311. See par. 475, Army Regulations of 1895 (551 of 1901). 1499. The Secretary of War has no general authority to license trade with Indians in the Indian country. By Sec. 2129, Rev. Sts., such licenses can be given only by a "superintendent of Indian affairs, or Indian agent or sub-agent." 55, 283, September 1892. 1500. The Secretary of War has no general authority to license the introduction of spirituous liquors into the Indian country. Under Sec. 2139, Rev. Sts., and the act of July 23, 1892, c. 234, amending that section and extending it to beer and other malt liquors,' the Secretary of War is without authority to permit the introduction into that country of any spirituous or malt liquors intended for sale. 55, 172, 380, August and September, 1892; 56, 31, October, 1892; Card 506, October, 1894. The statutes cited do not authorize the Secretary of War to license the sale of spirituous or malt liquors in the Indian country. Whether a particular article is in fact spirituous or malt liquor is a question for the courts, and not the War Department, to decide. Cards 1747, November, 1895; 7813, 7981, March and April, 1900. 1501. Prior to the act of July 23, 1892, no formal rule or regulation governing the subject of the introduction of liquor into the Indian country was promulgated by the War Department, but shortly after the passage of the act the Secretary of War decided that no permits would be granted except in cases where the liquor was to be used in or connected with the United States Army. This decision was adhered to until October, 1896, when it was modified by a further decision that permits to introduce wine into the Indian country for sacramental purposes would be granted upon the application of any clergyman having charge of any congregation or district in said country when forwarded to the War Department through the applicant's ecclesiastical superior, or upon other evidence of authenticity. The authority of the War Department to issue permits under the statutes covering the matter has in practice been viewed as limited to permits to introduce intoxicating liquor into the Indian country and as not extending even by implication to permits for its sale. Thus repeatedly held that permits to individuals to introduce into the Indian country any kind of intoxicating liquor, intended for sale either as a beverage or for medicinal purposes, cannot legally be granted. Cards 2399, 2406, 2571, 2795, July to December, 1896; 3140, 3404, 3716, April to December, 1897; 4002, 4105, May, 1898; 6857, 6900, August and September, 1899; 4105, June, 1900. 1502. In view of the terms of the act of May 21, 1884, establishing a civil government for Alaska, held that the military authorities could no longer legally issue permits for the introduction of liquors into 1See now this section as amended by act of January 30, 1897 (29 Stats., 506). Alaska under G. O. 57 of 1874; sec. 14 of said act being deemed impliedly to repeal, as to Alaska, that portion of Sec. 2139, Rev. Sts., which empowered the Secretary of War to authorize such introduction.' L, 529, July, 1886. 1503. In view of the positive terms of Sec. 2140, Rev. Sts., an officer of the army not only may but should "take and destroy any ardent spirits or wine found in the Indian country except such as may be introduced therein by the War Department." The Section imposes this as a "duty" upon "any person in the service of the United States”—including of course military as well as civil officials. Held however that the authority given by the statute to destroy liquor brought into an Indian reservation did not authorize the destruction by the military of a building, the private property of a citizen, in which the liquor was found stored. XXXV, 350, April, 1874. 1504. In view of the duty devolved by Sec. 2140, Rev. Sts., upon any person in the service of the United States," to take and destroy spirituous liquors in the Indian country, held that a post commander in such country who seized and destroyed a quantity of such liquors introduced into such country without the authority of the Secretary of War, but not found within the limits of his military command, had not exceeded his powers. XXXI, 205, February, 1871. 1505. Under Sec. 2147, Rev. Sts., authorizing the use of the military in the removal from the Indian country of "persons found therein contrary to law," held that the President was authorized to direct that a company of U. S. troops be stationed in the Indian Territory near the Kansas line to act as a patrol, and to apprehend and return within that line any and all lawless persons, guilty of crimes committed in Kansas, who have escaped from justice into the Indian country. 59, 480, May, 1893. 1506. Under Sec. 2150, Rev. Sts., a military commander may be authorized and directed by the President to arrest by military force and deliver to the proper civil authorities for trial, any white persons or Indians who may be in the Indian country engaged in furnishing liquor to Indians in violation of law; as also to prevent, by military force, the entry into such country of persons designing to introduce liquor therein contrary to law. Held that this authority to prevent was clearly an authority to arrest, where arrests were found necessary to restrain persons attempting to introduce liquor or other inhibited property. XLII, 192, March, 1879. 1507. Held that, under Sec. 2152, Rev. Sts., the military forces may, by the authority of the President, be employed to assist in making the 1See U. S. v. Nelson, 29 Fed. Rep., 202. arrest of Indians concerned in the killing of cattle and committing of depredations on the frontier, provided their offences were committed in the Indian country or by Indians under the legal charge of an Indian agent. 65, 15, May, 1894. INDIAN SOLDIER OR SCOUT. 1508. Where an enlisted Indian soldier belongs to a tribe which remains "under the charge of any Indian superintendent or agent," it is an offence under Sec. 2139, Rev. Sts., to sell to him spirituous liquor. Otherwise if he be attached to no such tribe and is under no such "charge."1 61, 333, September, 1893. 1509. Held that there was no statute of the United States under which the selling of spirituous liquor to Indian soldiers (not under the charge of an Indian agent), stationed on a U. S. military reservation, by a civilian making the sales off the reservation, could be punished as an offence. 53, 407, May, 1892. 1510. In the absence of legislation authorizing the appointment of farriers or blacksmiths in or for the Indian scouts of the army, held that to muster a scout as blacksmith for Indian scouts, with pay at the rate fixed by law for blacksmiths of cavalry, would be unauthorized and the pay could not legally be rendered. 40, 446, May, 1890. 1511. Held that San Carlos Indians who were members of their tribe at the time of the passage of the act of Congress approved February 18, 1895 (28 Stats. 665), granting to a railroad company a right of way across its reservation, were not, by reason of their employment as scouts in the service of the United States, deprived of their share of the compensation paid by the railroad company to the tribe for the privilege of crossing the reservation. Card 4040, July, 1898. INDIAN WAR. 1512. Active hostilities with Indians do not constitute a state of foreign war, the Indian tribes, even where distinct political communities, being subject to the sovereignty of the United States. Warfare inaugurated by Indians is thus a species of domestic rebellion, but it is so far assimilated to foreign war that during its pendency and on its theatre the laws and usages which govern and apply to persons during the existence of a foreign war are to be recognized as in general prevailing and operative. See § 164, ante, and note to § 1684, post. That the mere making of predatory incursions by parties of Indians with 1U. S. v. Hurshman, 53 Fed. Rep., 543. 3 See Worcester . Georgia, 6 Peters, 515. whose tribe no general hostilities have been inaugurated does not constitute an Indian war, see § 1686 and notes. 1513. Held that the Cherokee Nation, during the civil war, did not occupy the status of an insurrectionary State, and was not therefore included in the application of the statutes and proclamations which related to such States, but that its attitude from the date of its treaty with the Confederate government of October 7, 1861, to its treaty with the United States of July 19, 1866, was that of an ally of the Confederacy, to the extent that the individual members of the nation who took part in hostilities against the United States became legally assimilated with the enemy. XXX, 20, July, 1869. 1514. Indians who, having occupied an attitude of hostility or quasi hostility toward the United States, have in good faith resumed and been admitted to friendly relations therewith, are entitled, as repentant wards, to the protection of the Government, and acts of violence. committed against them as if they were enemies, are not acts of legitimate warfare but crimes. Thus where an officer in command of a regiment of volunteer cavalry made a sudden and violent attack upon a village of friendly Indians (who, having been in a state of partial hostility had returned to their allegiance and had in fact been recog nized as entitled to protection by the military authorities), and caused the massacre of several hundred persons of whom the larger portion were women and children,'-held that his act was wholly unauthorized and criminal; and in view of the fact that by reason of the expiration of the term of his regiment he had been mustered out of the service before he could be brought to trial by court martial.-advised that, as a vindication of the good name of the army and the reputation of the Government, which this atrocious act had compromised, there be issued from the War Department a general order setting forth briefly the circumstances of the crime and so denouncing it as to discharge, as far as possible, the military administration from responsibility therefor. XVII, 424, October, 1865. INSANITY. 1515. Where indications of insanity are developed by the accused in the course of a trial by court martial, the court will properly suspend proceedings and report the facts to the convening authority, adjourning meanwhile to await his orders. XXXIII, 661, January, 1873. See this raid upon Cheyenne Indians in Colorado, known as the "Sandy Creek Massacre," described and denounced in the Report of the Congressional “Committee on the Conduct of the War," of May 4, 1865. 2 See a case of this nature, where this course was pursued, in G. C. M. O. 39, Dept. of the Missouri, 1868. As to the similar practice of the civil courts, see People r. Ah Ying, 42 Cal. 18; also Taffe ». State, 23 Ark. 34. |