1. Congress, under its constitutional power to regulate commerce
with the Indian tribes, may not only prohibit the unlicensed
introduction and sale of spirituous liquors in the "Indian
country," but extend such prohibition to territory in proximity to
that occupied by Indians.
2. It is competent for the United States, in the exercise of the
treatymaking power, to stipulate in a treaty with an Indian tribe
that, within the territory thereby ceded, the laws of the United
States then or thereafter enacted prohibiting the introduction and
sale of spirituous liquors in the Indian country shall be in full
force and effect until otherwise directed by Congress or the
President of the United States.
3. Such a stipulation operates
proprio vigore, and is
binding upon the courts, although the ceded territory is situate
within an organized county of a state.
This is a libel of information by the United States against
Page 93 U. S. 189
forty-three gallons of whiskey, sundry peltries, and other goods
and merchandise, seized as forfeited by virtue of the twentieth
section of the Act of Congress approved June 30, 1834, as amended
by the Act approved March 15, 1864.
There are two special counts in the libel. The first, in
substance, sets forth that on Feb. 12, 1872, Bernard Lariviere, a
white person, of the Village of Crookston, in the County of Polk
and State of Minnesota, did unlawfully carry and introduce into
said village, which is located upon the territory ceded to the
United States by treaty with the Red Lake and Pembina bands of
Chippewa Indians made and concluded Oct. 3, 1863, and proclaimed
May 5, 1864, the spirituous liquors particularly described,
contrary to the treaty and the act of Congress above cited; that an
Indian agent, duly appointed, having reason to suspect and being
informed that spirituous liquors had been introduced by said
Lariviere into said County of Polk in violation of the act of
Congress, searched and caused to be searched the goods,
merchandise, peltries &c., which he had in his possession at
Crookston, in the ceded territory aforesaid, upon which search the
whiskey was found stored, packed, and mingled with and in the
packages, goods, and peltries, and in the places of deposit of said
Lariviere, and was so carried and introduced into the ceded
territory contrary to the form of statute of the United States in
such case made and provided, and was seized and taken by the Indian
agent as forfeited, together with all the goods and peltries,
&c., so found.
The second count sets forth that the whiskey was introduced with
the intent to sell, dispose of, and distribute the same to and
among the bands and tribes of Chippewa Indians who frequented the
Village of Crookston, and lived under the charge of an Indian agent
upon a reservation near that place.
The information prays that the said goods, merchandise, peltries
&c., may be decreed and declared forfeited, and the forfeiture
properly enforced.
Lariviere, a claimant, who first appeared in response to the
monition, demurred and excepted to the libel upon the ground that
it appeared from its recitals that the court had no jurisdiction;
that the property never was introduced, nor was it
Page 93 U. S. 190
intended to be introduced, into any Indian country, but that it
was affirmatively shown by the libel that it was searched and
seized at Crookston, in the County of Polk and State of Minnesota,
the same being an organized county, and said Crookston not being in
or adjoined to or near any Indian country; hence that the seizure
was without any authority of law &c. Grant, another claimant,
also excepted and demurred because it appeared in the libel that
the goods were seized within the jurisdiction of the State of
Minnesota and not on any lands within any Indian country or in any
country exclusively within the jurisdiction of the United
States.
The court below sustained the demurrer and exceptions and
dismissed the libel.
The United States thereupon sued out this writ of error.
The Act of March 15, 1864, 13 Stat. 29, is as follows:
"
Be it enacted, &c., that the twentieth section of
the 'Act to regulate trade and intercourse with the Indian tribes,
and to preserve peace on the frontiers,' approved June 30, 1834,
be, and the same is hereby, amended, so as to read as follows,
to-wit:"
" SEC. 20.
And be it further enacted that if any person
shall sell, exchange, give, barter, or dispose of any spirituous
liquors or wine to any Indian under the charge of any Indian
superintendent or Indian agent appointed by the United States, or
shall introduce or attempt to introduce any spirituous liquor or
wine into the Indian country, such person, on conviction thereof
before the proper district or circuit court of the United States,
shall be imprisoned for a period not exceeding two years, and shall
be fined not more than $300,
Provided, however, that it
shall be a sufficient defense to any charge of introducing or
attempting to introduce liquor into the Indian country, if it be
proved to be done by order of the War Department or any officer
duly authorized thereunto by the War Department. And if any
superintendent of Indian affairs, Indian agent, or sub-agent, or
commanding officer of a military post, has reason to suspect or is
informed that any white person or Indian is about to introduce or
has introduced any spirituous liquor or wine into the Indian
country in violation of the provisions of this section, it shall be
lawful for such superintendent, agent, sub-agent, or commanding
officer to cause the boats, stores, packages, wagons, sleds, and
other places of deposit
Page 93 U. S. 191
of such person, to be searched, and, if any such liquor is found
therein, the same, together with the boats, teams, wagons, and
sleds used in conveying the same, and also the goods, packages, and
peltries of such person, shall be seized and delivered to the
proper officer, and shall be proceeded against by libel in the
proper court, and forfeited, one-half to the informer and the other
half to the use of the United States, and if such person be a
trader, his license shall be revoked and his bonds put in suit. And
it shall, moreover, be the duty for any person in the service of
the United States or for any Indian to take and destroy any ardent
spirits or wine found in the Indian country, except such as may be
introduced therein by the War Department. And in all cases arising
under this act, Indians shall be competent witnesses."
Art. 7 of the Treaty between the United States, concluded Oct.
3, 1863, and the Red Lake and Pembina band of Chippewa Indians,
proclaimed May 5, 1864, 13 Stat. 668, is as follows:
"The laws of the United States now in force, or that may
hereafter be enacted, prohibiting the introduction and sale of
spirituous liquors in the Indian country, shall be in full force
and effect throughout the country hereby ceded, until otherwise
directed by Congress or the President of the United States."
Submitted on printed arguments by Mr. Assistant Attorney-General
Smith for the plaintiff in error.
Trade with Indian tribes is in all its forms subject exclusively
to the regulations of Congress. Duer's Const.Jur. 281; Rawle on the
Const., c. 9, 84; 2 Story on Const., secs. 1097-1101.
The mere erection of the Territory of Minnesota into a state did
not
ipso facto cause it to cease to be "Indian country."
United States v. Bailey, 1 McLean 235;
United States
v. Cisna, id., 254;
United States v. Ward, 1
Woolw.C.C. 19, 21.
The act of 1834, as amended by that of 1864, is a "regulation of
commerce," and therefore within the constitutional powers of
Congress.
United States v.
Holliday, 3 Wall. 417.
Congress, having the power to define the "Indian country" and
prohibit the unlicensed introduction and sale of liquors within it,
can either enlarge or diminish the boundaries of such country, as
it deems best for the interests of intercourse or commerce.
Page 93 U. S. 192
Where the United States recognizes and declares the tribal
condition of Indian bands, the courts will follow.
Cherokees v.
Georgia, 5 Pet. 1;
Worcester
v. Georgia, 6 Pet. 515.
The United States has, by treaty with the Indians, extended its
laws to the territory in which this liquor was seized.
A treaty, as the law of the land, is superior to any state
legislation, and is valid even as a municipal regulation, until
superseded by some act of Congress.
Ware v.
Hylton, 3 Dall. 236;
Taylor v. Morton, 2
Curtis C.C. 454; 1 Story on Const., sec. 1838;
Worcester v.
Georgia, supra.
MR. JUSTICE DAVIS delivered the opinion of the Court.
It may be that the policy of the government on the subject of
Indian affairs has, in some particulars, justly provoked criticism;
but it cannot be said that there has not been proper effort, by
legislation and treaty, to secure Indian communities against the
debasing influence of spirituous liquors. The evils from this
source were felt at an early day; and, in order to promote the
Page 93 U. S. 193
welfare of the Indians, as well as our political interests, laws
were passed and treaties framed, restricting the introduction of
liquor among them. That these laws and treaties have not always
secured the desired result, is owing more to the force of
circumstances which the government could not control, than to any
unwillingness to execute them.
Traffic with Indians is so profitable that white men are
constantly encroaching on Indian territory to engage in it. The
difficulty of preventing this intrusion, and of procuring
convictions for offences committed on the confines of civilization,
are the obstacles in the way of carrying into effect the
intercourse laws. It is doubtless true that they are as well
executed as could be expected under the circumstances. In this
case, the United States, in its endeavors to enforce them, is met
with the objection that they do not apply to the country in which
the liquor was seized.
The Red Lake and Pembina band of Chippewa Indians ceded to the
United States, by treaty concluded Oct. 2, 1863, a portion of the
lands occupied by them, reserving enough for their own use. The
seventh article is in these words:
"The laws of the United States now in force or that may
hereafter be enacted, prohibiting the introduction and sale of
spirituous liquors in the Indian country, shall be in full force
and effect throughout the country hereby ceded, until otherwise
directed by Congress or the President of the United States."
The ceded country is now part of an organized county of the
State of Minnesota; and the question is whether the incorporation
of this article in the treaty was a rightful exercise of power. If
it was, then the proceedings to seize and libel the property
introduced for sale in contravention of the treaty were proper, and
must be sustained.
Few of the recorded decisions of this Court are of greater
interest and importance than those pronounced in
Cherokee
Nation v. State of Georgia, 5 Pet. 1; and
Worcester v. State of
Georgia, 6 Pet. 515. Chief Justice Marshall, in
these cases, with a force of reasoning and an extent of learning
rarely equaled, stated and explained the condition of the Indians
in their relation to the United States and to the states within
whose boundaries they lived, and his exposition was based on
Page 93 U. S. 194
the power to make treaties and regulate commerce with the Indian
tribes. Under the Articles of Confederation, the United States had
the power of regulating the trade and managing all affairs with the
Indians not members of any of the states, provided that the
legislative right of a state within its own limits be not infringed
or violated. Of necessity, these limitations rendered the power of
no practical value. This was seen by the convention which framed
the Constitution; and Congress now has the exclusive and absolute
power to regulate commerce with the Indian tribes -- a power as
broad and as free from restrictions as that to regulate commerce
with foreign nations. The only efficient way of dealing with the
Indian tribes was to place them under the protection of the general
government. Their peculiar habits and character required this, and
the history of the country shows the necessity of keeping them
"separate, subordinate, and dependent." Accordingly, treaties have
been made and laws passed separating Indian territory from that of
the states, and providing that intercourse and trade with the
Indians should be carried on solely under the authority of the
United States. Congress very early passed laws relating to the
subject of Indian commerce, which were from time to time modified
by the lessons of experience.
The Act of June 30, 1834, 4 Stat. 732, as amended by the Act of
March 15, 1864, 13 Stat. 29, is the one now in force on this
subject. It defines what shall be deemed Indian country, directs
the manner in which trade and intercourse with the Indians shall be
carried on, and forbids any one, under certain penalties, to give
or sell liquor to an Indian in charge of an agent, or to introduce
it into the Indian country.
In
United States v.
Holliday, 3 Wall. 409, the power of Congress to
pass the act of 1864 was the main point in controversy. Holliday
was indicted for selling liquor in Gratiot County, Mich., to an
Indian in charge of an agent. The county was not Indian country,
nor did it even have an Indian reservation in it. It was contended,
among other things, that the sale of liquor to an Indian, or any
other person within the county, was a matter of state regulation,
with which Congress had nothing to do. But this Court held that the
power to regulate commerce with the Indian tribes was, in its
nature, general, and not
Page 93 U. S. 195
confined to any locality; that its existence necessarily implied
the right to exercise it, whenever there was a subject to act upon,
although within the limits of a state, and that it extended to the
regulation of commerce with the individual members of such tribes.
It was also contended that the intercourse act was not a regulation
of commerce within the meaning of the Constitution; but the Court
held otherwise, and said,
"It [the act] relates to buying and selling and exchanging
commodities, which is the essence of all commerce, and it regulates
the intercourse between the citizens of the United States and those
tribes, which is another branch of commerce, and a very important
one."
The power is in no wise affected by the magnitude of the traffic
or the extent of the intercourse. As long as these Indians remain a
distinct people, with an existing tribal organization, recognized
by the political department of the government, Congress has the
power to say with whom, and on what terms, they shall deal, and
what articles shall be contraband. If liquor is injurious to them
inside of a reservation, it is equally so outside of it; and why
cannot Congress forbid its introduction into a place near by, which
they would be likely to frequent? It is easy to see that the love
of liquor would tempt them to stray beyond their borders to obtain
it, and that bad white men, knowing this, would carry on the
traffic in adjoining localities, rather than venture upon forbidden
ground. If Congress has the power, as the case we have last cited
decides, to punish the sale of liquor anywhere to an individual
member of an Indian tribe, why cannot it also subject to forfeiture
liquor introduced for an unlawful purpose into territory in
proximity to that where the Indians live? There is no reason for
the distinction; and, as there can be no divided authority on the
subject, our duty to them, our regard for their material and moral
wellbeing, would require us to impose further legislative
restrictions, should country adjacent to their reservations be used
to carry on the liquor traffic with them.
The Indian country, as defined by the act of 1834, was at that
date so remote from settlements that there was no occasion to
extend the prohibition beyond its limits. It has since then been so
narrowed by successive treaties that the white population
Page 93 U. S. 196
is now all around it, and regarding it with a wistful eye. In
view of this changed condition, it would be strange, indeed, if the
commercial power, lodged solely with Congress and unrestricted as
it is by state lines, did not extend to the exclusion of spirituous
liquors intended to corrupt the Indians, not only from existing
Indian country, but from that which has ceased to be so, by reason
of its cession to the United States. The power to define originally
the "Indian country," within which the unlicensed introduction and
sale of liquors were prohibited, necessarily includes that of
enlarging the prohibited boundaries, whenever, in the opinion of
Congress, the interests of Indian intercourse and trade will be
best subserved.
It is true Congress has not done this, but the Constitution
declares a treaty to be the supreme law of the land, and Chief
Justice Marshall, in
Foster & Elam v.
Neilson, 2 Pet. 314, has said,
"That a treaty is to be regarded, in courts of justice, as
equivalent to an act of the legislature, whenever it operates of
itself, without the aid of any legislative provision."
No legislation is required to put the seventh article in force,
and it must become a rule of action, if the contracting parties had
power to incorporate it in the treaty of 1863. About this there
would seem to be no doubt. From the commencement of its existence,
the United States has negotiated with the Indians in their tribal
condition as nations, dependent, it is true, but still capable of
making treaties. This was only following the practice of Great
Britain before the Revolution.
In Worcester v. The state of
Georgia, supra, the Court say,
"The words 'treaty' and 'nation' are words of our own language,
selected in our diplomatic and legislative proceedings by
ourselves, having each a definite and well understood meaning. We
have applied them to Indians as we have applied them to the other
nations of the earth. They are applied to all in the same
sense."
In consequence of this interpretation, a country which, if left
to the Indians, would have remained a wilderness, is now occupied
by farms, towns, and cities. The only legitimate way to accomplish
this beneficent result was by extinguishing the Indian title, and
the subject matter of this treaty is the cession of a large tract
of land in the State of Minnesota and the Territory of Dakota.
Indeed, the acquisition of territory
Page 93 U. S. 197
has been the moving cause of all Indian treaties, and will
continue to be so until Indian reservations are confined to very
narrow limits. It is admitted that these had the same right as
other tribes to occupy their lands as long as they pleased, and
that this right could only be extinguished by voluntary cession to
the government. If so, why not annex to the cession a condition
deemed valuable to them, and beneficial to the United States as
tending to keep the peace on the frontiers?
The chiefs doubtless saw, from the curtailment of their
reservation and the consequent restriction of the limits of the
"Indian country," that the ceded lands would be used to store
liquors for sale to the young men of the tribe, and they well knew
that if there was no cession, they were already sufficiently
protected by the extent of their reservation.
Under such circumstances, it was natural that they should be
unwilling to sell until assured that the commercial regulation
respecting the introduction of spirituous liquors should remain in
force in the ceded country, until otherwise directed by Congress or
the President. This stipulation was not only reasonable in itself,
but was justly due from a strong government to a weak people it had
engaged to protect. It is not easy to see how it infringes upon the
position of equality which Minnesota holds with the other states.
The principle that federal jurisdiction must be everywhere the
same, under the same circumstances, has not been departed from. The
prohibition rests on grounds which, so far from making a
distinction between the states, apply to them all alike. The fact
that the ceded territory is within the limits of Minnesota is a
mere incident; for the act of Congress imported into the treaty
applies alike to all Indian tribes occupying a particular country,
whether within or without state lines. Based as it is exclusively
on the federal authority over the
subject matter, there is
no disturbance of the principle of state equality.
Besides, the power to make treaties with the Indian tribes is,
as we have seen, coextensive with that to make treaties with
foreign nations. In regard to the latter, it is beyond doubt ample
to cover all the usual subjects of diplomacy. One of them relates
to the disability of the citizens or subjects of
Page 93 U. S. 198
either contracting nation to take, by descent or devise, real
property situate in the territory of the other. If a treaty to
which the United States is a party removed such disability, and
secured to them the right so to take and hold such property, as if
they were natives of this country, it might contravene the statutes
of a state; but in that event, the courts would disregard them and
give to the alien the full protection conferred by its provisions.
If this result can be thus obtained, surely the federal government
may, in the exercise of its acknowledged power to treat with
Indians, make the provision in question, coming, as it fairly does,
within the clause relating to the regulation of commerce.
Minnesota, instead of being injured, is benefited. An immense
tract of valuable country formerly withheld from her civil
jurisdiction is subjected to it, and her wealth and power greatly
increased. Traversed by railroads that were built, in part, at
least, with lands which this treaty enabled Congress to grant, the
country is open to sale and preemption and homestead settlement,
and will soon be occupied by a hardy and industrious people. The
general government asks in return for this, that the ceded
territory shall retain its original status, so far as the
introduction within it of spirituous liquors and the sale of them
to the Pembina Indians are concerned.
It would seem, apart from the question of power, that the price
paid by the state bears no proportion to the substantial and
enduring benefits conferred upon her; and we are happy to say that
her officers are not engaged in making this defense.
Judgment reversed, and record remanded with directions to
overrule the demurrer and try the case.
