The Oklahoma Enabling Act of June 16, 1906, 34 Stat. 267, c.
3335, followed by the adoption of the constitution therein
described, and the admission of the new state, had the effect of
remitting to the state government the enforcement of the laws
relating to the manufacture and sale of liquor within the state,
and, so far as it covered the same field as the prior law of 1895
prohibiting introduction and sale of liquor in Indian country, the
latter was by implication repealed.
While the Oklahoma Enabling Act may have by implication repealed
the Act of 1895 in part, it was not the intention of Congress to
repeal that act in respect to the introduction of liquor from other
states or territories.
Congress has for many years consistently pursued the policy of
forbidding sales of liquor to Indians and of excluding liquor from
territory occupied by them, and the Oklahoma Enabling Act was
framed with a clear intent that, while the state should control the
liquor traffic within its own borders, the United States should
exercise its appropriate powers to prevent such traffic within the
Indian Territory originating beyond the borders of the state.
It is unreasonable to suppose that Congress would wipe out all
its laws and regulations regarding the liquor traffic with Indians,
including those established by treaties, and impose upon future
Congresses the labor and difficulty of establishing new legislation
upon that subject.
The proviso to § 1 of the Oklahoma Enabling Act expressly
reserving to the government of the United States the power to make
laws and regulations in the future respecting Indians negatives any
purpose to repeal by implication the existing laws and regulations
on the subject.
An act of Congress may repeal a prior treaty as well as it may
repeal a prior statute; but it is a settled rule of statutory
construction that repeals by implication are not favored, and will
not be held to exist if there be any other reasonable
construction.
Under § 8 of Article I of the federal Constitution, conferring
upon Congress the right to regulate commerce with the Indian
tribes, Congress may regulate traffic with Indians, although within
the limits of a single state.
Under 8 of Article I of the federal Constitution, Congress has
the
Page 225 U. S. 664
same power to maintain an existing law in regard to Indian
traffic so as to keep it in force in a new state as it has to enact
new laws in the future on the same subject.
Although the Five Civilized Tribes have long been treated more
liberally than other Indians, they remain nonetheless the wards of
the Nation, and in all respects subject to its control.
Reviewing the treaties and agreements with the several tribes
occupying the Indian Territory within that state, it appears that
the provisions of the Oklahoma Enabling Act in regard to liquor
traffic with Indians originating beyond the state were enacted with
the purpose of fulfilling the spirit and letter of those treaties
and agreements.
The argument that the Act of 1895 must have been repealed by the
Oklahoma Enabling Act to the extent that the latter permitted the
introduction of liquor into the state for the needs of the state
agencies for distribution of liquor is an argument
ab
inconvenienti, and is without force so far as the introduction
of liquor by an individual is concerned.
A law creating a crime ought to be explicit, and if ambiguous or
uncertain, it should be interpreted in favor of the liberty of the
citizen; but, in this case, as there is no ambiguity in the Act of
1895, a repeal
pro tanto does not leave anything doubtful
or ambiguous in that part of the act which remains in force.
The rule that the admission of a new state into the Union on an
equal footing with the original states imports an equality of power
over internal affairs does not prevent the United States from
reserving the right to regulate matters therein within the sphere
of the plain power of Congress.
Where Congress embraces, in an enabling act for the admission of
a new state, legislation intended as a regulation of matters within
the sphere of its powers, the legislation derives no force from any
agreement or compact with the new state as an acceptance of
statehood, but derives its force solely from the power of Congress
to regulate the subject matter of the legislation.
Cole v.
Smith, 221 U. S.
574.
The Oklahoma Enabling Act did not repeal the Act of 1895 so far
as it pertains to the carrying of liquor from without the new state
into that part of it which was Indian Territory (except that
brought in by the state for use of state agencies) and the United
States District Court for the District of Oklahoma has jurisdiction
to punish an offender against the Act of 1895 in that respect.
This is an original application for a writ of habeas corpus
Page 225 U. S. 665
to inquire into the arrest and detention of the petitioner, who
is held in custody by the United States Marshal for the Eastern
District of Oklahoma, under a capias or bench warrant issued out of
the United States district court, upon an indictment of which the
following is a copy:
"UNITED STATES OF AMERICA"
"
Eastern District of Oklahoma, ss:"
"In the district court of the United States in and for the
Eastern District aforesaid at the March Term thereof, A.D. 1912 at
Vinita, Oklahoma."
"The grand jurors of the United States, impaneled, sworn, and
charged at the term aforesaid of the court aforesaid, on their oath
present that Otis Tittle and Charley Webb, and each of them, on the
23rd day of January, in the year 1912, in the said division of said
district, and within the jurisdiction of said court in Craig
County, in the State of Oklahoma, the same then and there being and
constituting a portion of the Indian country of the said United
States, did at the time and place aforesaid unlawfully, knowingly,
willfully, and feloniously introduce, and attempt to so introduce
and carry into the said Indian country from without the said Indian
country 17 gallons of spirituous, ardent, and intoxicating liquor,
to-wit: alcohol, which said alcohol was by the said Otis Tittle and
Charley Webb and each of them so introduced and carried into that
portion of said Eastern District of Oklahoma, so being then and
there Indian country, as above set forth and described, contrary to
the form of the statute in such case made and provided, and against
the peace and dignity of the United States."
Petitioner also applies for a writ of certiorari to review the
action of the district court in refusing, on habeas corpus, to
discharge him from custody under the bench warrant.
For present purposes it is admitted that petitioner is a
Page 225 U. S. 666
white man, not of Indian blood; that the intoxicating liquors
described in the indictment were shipped on his order from the City
of Joplin, in the State of Missouri, by way of a railway that is a
common carrier of interstate shipments, consigned to petitioner at
the City of Vinita, in the State of Oklahoma; that the same reached
the latter city over said railway line in the course of ordinary
transportation at the time of the alleged offense set forth in the
indictment, to-wit, January 23, 1912; that said intoxicating
liquors were delivered by the transportation company to the
petitioner within the City of Vinita, and he received them upon a
public street and highway, and not upon restricted land, for the
purpose and with the intent of carrying and transporting the
liquors along the streets and highways to another point within the
same city, and that, while he was in the act of so receiving the
same, he was arrested. That the City of Vinita is situate in Craig
County, Oklahoma, which county constitutes a part of what was
formerly the Cherokee Nation; that all the lands of the Cherokee
Nation have been either allotted to individual citizens of the
Cherokee Tribe under the terms of the Cherokee Agreement and the
several acts of Congress providing for the allotment of said lands,
or sold by the United States for the benefit of the citizens of the
Cherokee Nation, either as town sites or otherwise, under the
authority of the several acts of Congress providing therefor; that
the City of Vinita, including the place where the intoxicating
liquor was delivered to and received by the petitioner, is a part
of the original townsite of Vinita, Indian territory, and that the
status of the lands and of the enrolled members of the Cherokee
Tribe of Indians are such as are fixed by law.
The petitioner contends that the district court is without
jurisdiction, because there is no existing law under which the
offense alleged against him is punishable in the federal courts. He
claims that he is obliged to resort
Page 225 U. S. 667
to this Court for relief because the United States Circuit Court
of Appeals for the Eighth Circuit has decided the questions
involved adversely to his contention in the case of
United
States Express Co. v. Friedman, 191 F. 673.
Page 225 U. S. 670
MR. JUSTICE PITNEY, after making the foregoing statement,
delivered the opinion of the Court.
The draftsman of the indictment evidently intended to charge the
offense known as "introducing liquor into
Page 225 U. S. 671
the Indian country," made punishable by § 2139, Rev.Stat. as
amended by act of July 23, 1892, 27 Stat. 260, c. 234, and by the
"Act to Prohibit the Sale of Intoxicating Drinks to Indians," etc.,
approved January 30, 1897, 29 Stat. 506, c. 109.
The circuit court of appeals, in
United States Express Co.
v. Friedman, 191 F. 673, dealt with the question whether that
portion of Oklahoma formerly known as the Indian Territory ceased
to be "Indian country" upon the admission of Oklahoma as a state,
so that these acts were no longer applicable, and with the question
whether the admission of Oklahoma as a state had the effect of
repealing them so far as pertained to the introduction of liquors
into the territory. Petitioner's application to this Court for a
habeas corpus was intended to bring that decision under review, and
the agreed statement of facts was designedly so framed as to show
the grounds of his contention that the
locus in quo is no
longer "Indian country."
The government, however, in resisting the application, relied
for support of the jurisdiction of the district court not only upon
the acts just referred to, but also upon § 8 of "An Act to Provide
for the Appointment of Additional Judges of the United States Court
in the Indian Territory, and for Other Purposes," approved March 1,
1895, 28 Stat. 693, c. 145.
The three enactments in question are set forth in chronological
order in the margin. [
Footnote
1]
Page 225 U. S. 672
At the time of the passage of the Act of 1895, the territory
known as the Indian territory was that which was
Page 225 U. S. 673
described by metes and bounds in the Act of May 2, 1890, 26
Stat. 81, 93, c. 182, § 29. It included the lands of
Page 225 U. S. 674
the Cherokee Nation and the City of Vinita, where the
petitioner's alleged offense was committed. It is now, of course, a
part of the State of Oklahoma.
It is not open to serious dispute that, if the prohibition of
the Act of 1895 against "carrying into said territory any such
liquors or drinks" remains operative so far as pertains to the
carrying of intoxicating liquors from another state into that part
of Oklahoma which was the Indian territory, the acts admittedly
done by the petitioner constitute an offense thereunder of which
the United States district court has jurisdiction. Whether the
offense is sufficiently alleged in the indictment is another
question, which, on familiar grounds, is not a proper subject
matter for inquiry on habeas corpus.
Ex Parte Parks,
93 U. S. 18;
Ex
Parte Virginia, 100 U. S. 339;
Ex Parte Carll, 106 U. S. 521;
In re Belt, 159 U. S. 95;
Ornelas v. Ruiz, 161 U. S. 502.
Recognizing this, counsel for the petitioner, upon the oral
argument and in a supplemental brief, modified his original
contentions so as to deal with the Act of 1895. As thus modified,
the grounds upon which he relies are the following:
First, that the Act of 1895, being a special act applicable to
the Indian territory, had the effect of superseding, as to that
territory, the existing general statute against the introduction
and sale of intoxicating liquors in the Indian country.
Secondly, that the Act of 1897, being amendatory of the general
statute against the introduction and sale of intoxicating liquors
in the Indian country, did not apply to the Indian territory,
because that territory was covered by the special Act of 1895.
Page 225 U. S. 675
Thirdly, that the jurisdiction cannot be rested upon the Act of
1897, because the place where the alleged offense was committed was
not Indian country within the meaning of that act, since there was
no Indian title remaining in the townsite of Vinita, the insistence
being that, where there is no Indian title, no inalienable land,
and no allotted land held in trust, there can be no "Indian
country."
Fourthly, that whether the Act of 1895 or the Act of 1897 would
otherwise be applicable, these acts were both repealed, as to that
part of Oklahoma which was formerly the Indian territory, by the
force of the Oklahoma Enabling Act of June 16, 1906, c. 3335, 34
Stat. 267, under the authority of which the Constitution of
Oklahoma was adopted and a state government established covering
the territory previously known as Oklahoma and the Indian
Territory, and pursuant to which certain statutes were afterwards
enacted by the state legislature,
viz., an Act of March
24, 1908, known as the Billups Law, being §§ 4156-4209 of the
Compiled Laws of Oklahoma of 1909, and an Act passed March 11,
1911, Session Laws of Oklahoma, 1910-1911, pp. 154-156.
The contentions of the government, on the other hand, are:
First, that the Act of 1895 prohibits the liquor traffic in the
Indian territory regardless of any question concerning the term
"Indian country," or concerning the title to particular lands or
the race or color of the persons affected.
Secondly, that the extinguishment of the Indian land title to
the particular
locus in quo did not remove it from the
operation of § 2139, Rev.Stat. as amended by the Acts of 1892 and
1897, because (among other reasons) a contrary intent is manifested
in the treaties and statutes under which that title was
extinguished.
Thirdly, that neither by admitting Oklahoma to statehood nor by
anything in the Enabling Act did Congress
Page 225 U. S. 676
renounce its control over the interstate liquor traffic in what
had been the Indian Territory.
The question whether the Act of 1895 was superseded by the Act
of 1897 was not much discussed in the argument. It is a question of
nicety, having an importance extending beyond the exigencies of the
present case. In the view we take of the other questions, however,
we may simplify the discussion by assuming (without conceding) that
petitioner's first two points are well taken, and that the Act of
1897 did not apply to the Indian Territory because that territory
was covered by the special Act of 1895. This at the same time
renders it unnecessary for us to consider his third contention,
viz., that the
locus in quo was not Indian
country within the meaning of the Act of 1897, because of the
extinguishment of the Indian title.
We may thus proceed at once to the question of the effect upon
the Act of 1895 of the Oklahoma Enabling Act of June 16, 1906, 34
Stat. 267, c. 3335, and the admission of the State of Oklahoma into
the Union pursuant thereto. Since the government concedes that the
Act of 1895 has been thereby repealed, saving so far as it
prohibited the carrying of intoxicating liquors, etc., from another
state into the territory, the matter to be discussed is still
further narrowed.
Before passing, however, it should be noted that § 2139,
Rev.Stat., and the Act of 1897, contain prohibitions respecting the
sale of intoxicating liquor to Indians, and in this, and perhaps in
other important respects, cover ground not covered by the Act of
1895. We must not be understood as deciding that these prohibitions
are no longer in force within what was the Indian Territory, either
because of the assumed effect of the Act of 1895 in superseding the
previous general statute of which the Act of 1897 was amendatory,
or because of the Oklahoma Enabling Act and the admission of the
state thereunder.
Page 225 U. S. 677
The assumption we make in favor of the petitioner is for the
purposes of the present argument only.
The title and pertinent sections of the Enabling Act are set
forth in the margin. [
Footnote
2]
Page 225 U. S. 678
It will be observed that its first section provides that nothing
in the constitution of the new state shall be construed
Page 225 U. S. 679
"to limit or affect the authority of the government of the
United States to make any law or regulation respecting
Page 225 U. S. 680
such Indians, their lands, property, or other rights by
treaties, agreement, law, or otherwise, which it would have been
competent to make if this act had never been passed."
Also that § 3 requires that the constitution shall prohibit the
manufacture and sale of intoxicating liquors within those parts of
the proposed state known as the Indian Territory and the Osage
Indian Reservation, and within any other parts of said state which
existed as Indian reservations on January 1, 1906, and shall
prohibit the shipment or conveyance of such liquors from other
parts of the state into the portions just described, the
prohibition to continue for a period of twenty-one years, and
thereafter until the people shall otherwise provide by
constitutional amendment and proper state legislation, with a
proviso for the establishment of state agencies for the sale of
liquors for medicinal purposes and to bonded apothecaries, of
denaturized alcohol for industrial purposes and of alcohol for
scientific purposes, and with elaborate provisions for carrying the
prohibition into effect and preventing any abuse of the limited
privileges conferred, it being declared at the same time that,
"upon the admission of said state into the Union, these provisions
shall be immediately enforceable in the courts of said state."
Pursuant to this act, a constitutional convention prepared and
submitted to the people for adoption a constitution containing the
clauses thus prescribed by Congress. At the same time, a separate
constitutional provision was submitted, for establishing statewide
liquor prohibition, substantially in the same terms and subject to
the same provisions that were prescribed, with respect to the
Indian Territory and the Indian reservations, by the Enabling
Page 225 U. S. 681
Act. The constitution and the separate constitutional provision
were duly adopted by the people, and on November 16, 1907, by
proclamation of the President, Oklahoma was admitted as a State of
the Union.
No doubt the Enabling Act, followed by the adoption of the
constitution therein prescribed and the admission of the new state,
had the effect of remitting to the state government the enforcement
of the prohibition respecting the manufacture, sale, barter, etc.,
of intoxicating liquors within the state, and respecting commerce
in such liquors conducted wholly within the state; and, to the
extent that the scheme of prohibition established by the Enabling
Act covered the same field that had been covered by the Act of
1895, the latter act must be considered as impliedly repealed. But
the Act of 1895 included offenses that are not covered by the
prohibition scheme of the Enabling Act; it prohibited the carrying
of intoxicating liquors from other states into territory that was
included in the State of Oklahoma. And the question for present
solution is whether the Act of 1895, having been partially
repealed, as just indicated, remains in force as a prohibition
against such interstate traffic. In deciding it, we shall do well
to bear in mind that the offense of importing or "introducing" or
"carrying in" such liquors into a protected district is different
in its nature and readily distinguishable from the offenses of
manufacturing, selling, etc., within the district; that, from the
earliest times, they have been treated in federal legislation as
different offenses; that Congress for many years has consistently
pursued the policy of forbidding sales of liquor to Indians and
excluding it from country occupied by them; that the prohibition of
importations has been deemed necessary to effectuate the purpose of
preventing the use of it in protected districts; that the Act of
1895 was passed for the evident purpose of enforcing the two-fold
prohibition in the Indian Territory, and that, by agreements with
the Indian tribes
Page 225 U. S. 682
inhabiting the territory (as will appear below), the United
States was, to some extent at least, pledged to maintain the
prohibition. Besides these considerations, it is to be noted that
the Enabling Act, while containing most stringent clauses for
preventing (at least for twenty-one years) the manufacture of and
traffic in liquors within the Indian Territory and their
transportation from other parts of the new state into the
territory, imposes no duty upon the new state with respect to
preventing liquors from being brought into the territory from other
states.
In view of these considerations, and others to be mentioned, it
seems to us that Congress, so far from intending by the Enabling
Act to repeal so much of the Act of 1895 as prohibits the carrying
of intoxicating liquors into the Indian Territory from points
without the state, framed the Enabling Act with a clear view of the
distinction between the powers appropriate to be exercised by the
new state over matters within her borders, and the powers
appropriate to be exercised by the United States over traffic
originating beyond the borders of the new state and extending
within the Indian Territory.
In addition, there is the proviso contained in section one of
the act that nothing contained in the state constitution shall be
construed
"to limit or affect the authority of the government of the
United States to make any law or regulation respecting such
Indians, their lands, property, or other rights by treaties,
agreement, law, or otherwise, which it would have been competent to
make if this act had never been passed."
It is contended that this does not preserve the existing laws
and regulations respecting the Indians, but rather excludes the
inference of their continued force and existence by indicating a
purpose on the part of Congress to thereafter enact regulations for
the protection of the Indians in Oklahoma if necessity requires.
This, we think, is an inadmissible
Page 225 U. S. 683
construction. We deem it unreasonable to suppose that Congress,
possessing the constitutional power and recognizing the moral duty
to make laws and regulations respecting the Indians, and having
already established laws and regulations of this character
applicable in the territory, including some that were established
by treaties and agreements, should resolve to wipe them out, and
thereby impose upon future Congresses the labor and difficulty of
establishing other proper laws and regulations in their stead. In
our opinion, the purpose expressed in the proviso to reserve to the
government of the United States the authority to make laws and
regulations in the future respecting the Indians is, under the
circumstances, evidence tending to negative a purpose to repeal by
implication the existing laws and regulations on the subject.
Of course, an act of Congress may repeal a prior treaty as well
as it may repeal a prior act.
The Cherokee
Tobacco, 11 Wall. 616;
Fong Yue Ting v. United
States, 149 U. S. 698,
149 U. S. 720;
Ward v. Race Horse, 163 U. S. 504,
163 U. S. 511;
Draper v. United States, 164 U. S. 240,
164 U. S.
243.
But it is a settled rule of statutory construction that repeals
by implication are not favored, and will not be held to exist if
there be any other reasonable construction.
Cope v. Cope,
137 U. S. 682,
137 U. S. 686,
and cases cited;
Ward v. Race Horse, 163 U.
S. 504,
163 U. S.
511.
The reservation of the authority of Congress to legislate in the
future respecting the Indians residing within the new state is
clearly supportable under the federal Constitution, Art. I, § 8,
which confers upon Congress the power "to regulate commerce with
foreign nations, and among the several states, and with the Indian
tribes." It has been repeatedly held by this Court that, under this
clause, traffic or intercourse with an Indian tribe or with a
member of such a tribe is subject to the regulation of Congress,
although it be within the limits of a state.
United
States v. Holliday, 3 Wall. 407,
70 U. S. 418;
United
States
Page 225 U. S. 684
v. Forty-three Gallons of Whiskey, 93 U. S.
188,
93 U. S.
195-197;
Dick v. United States, 208 U.
S. 340, and cases cited.
And it is as clearly consistent with the Constitution to
maintain in force an existing act of Congress relating to such
traffic and intercourse, so that it shall continue effective within
the limits of the new state, as it is to reserve the right to enact
new laws in the future upon the same subject matter.
We must read the proviso contained in § 1 of the Enabling Act,
and also the declaration in § 21, that "the laws of the United
States not locally inapplicable shall have the same force and
effect within said state as elsewhere within the United States," in
the light of the existing relations, then recently established by
treaties and by acts of Congress, between the government of the
United States and the Five Civilized Tribes that occupied the area
known as the Indian Territory. Although those tribes had long been
treated more liberally than other Indians, they remained
nonetheless wards of the government, and in all respects subject to
its control.
Cherokee Nation v. Southern Kansas R. Co.,
135 U. S. 641,
135 U. S. 653,
and cases cited. And after Congress, in the year 1893, had
inaugurated the policy of terminating their tribal existence and
government and allotting their lands in severalty (Act of March 3,
1893, c. 209, § 16; 27 Stat. 645), agreements were negotiated by
the Dawes Commission with each of the tribes designed to carry out
the objects indicated, and in each of those agreements there was
some recognition of the importance of preserving restrictions upon
the introduction of intoxicating liquors from without and the
traffic in them within the Indian Territory.
The agreement with the Seminoles was made in 1898 (30 Stat. 567,
c. 567), with the Creeks in 1901 and 1902 (31 Stat. 861, 32 Stat.
500), with the Choctaws and Chickasaws in 1898 (30 Stat. 507) and
in 1902 (32 Stat. 641), and with the Cherokees in the latter year
(32 Stat. 716).
Page 225 U. S. 685
Section 73 of the agreement with the Cherokees (32 Stat. 727)
continued in force in that Nation the fourteenth section of an Act
of June 28, 1898, entitled, "An Act for the Protection of the the
Indian Territory and for Other Purposes" (30 Stat. 500), which
contained a proviso against the sale of liquor in the territory,
and against the introduction thereof into the territory.
In the first Choctaw and Chickasaw agreement there was a
provision (30 Stat. 509) that no law or ordinance should be passed
by any town interfering with the enforcement of, or conflicting
with the laws of, the United States in force in said territory,
"and the United States agrees to maintain strict laws in the
territory of the Choctaw and Chickasaw tribes against the
introduction, sale, barter, or giving away of liquors and
intoxicants of any kind or quality."
In the Choctaw-Chickasaw agreement of 1902, § 64, which provided
for the cession to the United States of lands at the Sulphur
Springs, contained a provision (32 Stat. 656) that
"until otherwise provided by Congress, the laws of the United
States relating to the introduction, possession, sale, and giving
away of liquors or intoxicants of any kind within the Indian
country or Indian reservations shall be applicable to the lands so
ceded, and said lands shall remain within the jurisdiction of the
United States court for the Southern District of Indian
Territory."
The Seminole agreement likewise provided that
"the United States agrees to maintain strict laws in the
Seminole country against the introduction, sale, barter, or giving
away of intoxicants of any kind or quality."
The first Creek agreement provided that
"the United States agrees to maintain strict laws in said Nation
against the introduction, sale, barter, or giving away of liquors
or intoxicants of any kind whatsoever."
(Act of March 1, 1901, c. 676, § 43, 31 Stat. 872.) And this was
not modified
Page 225 U. S. 686
by the supplemental agreement. (Act of June 30, 1902, c. 1323,
32 Stat. 500.)
It seems to us that the provisions of the Enabling Act show that
Congress recognized that, because of these agreements or otherwise,
the government of the United States was under a duty to the
inhabitants of the Indian Territory different from its duty to the
inhabitants of the other territory that went to form the new state.
We are unable otherwise to explain the insertion in the proposed
constitution of the clause establishing liquor prohibition within
the Indian Territory, and the exclusion of the other territory from
the operation of this clause. This action is indicative of a
purpose on the part of Congress to fulfill the spirit as well as
the letter of the agreements with the Five Tribes. There were
differences in those treaties, so far as the liquor traffic is
concerned. But in the Enabling Act, all the tribes were treated
alike, and in a manner to fulfill the amplest promise given to any
tribe, so far -- but only so far -- as the establishment of general
prohibition within the new state was concerned.
But if the federal law that had prevented the bringing in of
intoxicating liquors from without the state was at the same time
repealed, the pledges of the government were thereby in a material
part broken. For manifestly it would be of comparatively little use
to prohibit the manufacture of intoxicating liquors within the
territory and their shipment from other parts of the state into the
territory if at the same time all laws prohibiting the introduction
of such liquors from other states into the territory were to be
repealed.
And it is clear that, in framing the Enabling Act, Congress was
mindful not only of its jurisdiction over commerce with the Indian
tribes, but was mindful that traffic in liquors between one state
and another is subject only to the control of Congress.
Bowman v. Chicago &
N.W.
Page 225 U. S. 687
R. Co., 125 U. S. 465;
Leisy v. Hardin, 135 U. S. 100;
Lottery Case, 189 U. S.
321.
It is argued that the result of engrafting the provisions of the
Enabling Act upon that part of the Act of 1895 which remains
unrepealed is a statutory system "so incongruous and indefinite in
purpose and effect that it would be impossible to enforce it."
This contention is based largely upon the fact that the
prohibition of the manufacture, sale, barter, etc., of intoxicating
liquors within those parts of the state that were known as the
Indian Territory and Osage Indian Reservation, and the other parts
of the state which were Indian reservations on January 1, 1906, and
the prohibition of the shipment or conveyance of such liquors from
other parts of the state into the portions just mentioned, is
subject to a proviso that the legislature may provide by law for
state agencies for the sale of such liquor for medicinal purposes,
for the sale of denaturized alcohol for industrial purposes, for
the sale of alcohol for scientific purposes, and for the sale of
liquors to bonded apothecaries.
It is argued that, in the interim between the admission of the
state and the enactment of legislation for establishing state
liquor agencies, there would necessarily be a period of
considerable duration (as the event happened, it was over four
months) during which, in what was formerly the Indian Territory, it
would be doubtful whether sales of liquor would be punishable in
the federal or in the state courts, and whether according to the
Act of 1895 or under the different penalties of the Enabling
Act.
It may be conceded that, until the state took action, in
accordance with the constitution, for the establishment of agencies
for the sale of liquors for the limited purposes mentioned, such
sales could not be made at all, and that all sales which otherwise
were in violation of the prohibition of the constitution were
punishable in the courts; to what
Page 225 U. S. 688
extent punishable in the federal courts, and to what extent in
the state courts, it is not worthwhile to spend time in
considering. Some temporary confusion and uncertainly may be
unavoidable upon the establishment of a state government under such
conditions, but this has little bearing upon the question before
us.
A more serious argument is that which is based upon the effect
of the constitutional provision respecting the establishment and
maintenance of state agencies for the disposition of liquor, after
the state legislature shall have provided by law for such agencies,
for when such a law has been enacted, we are brought to the
permanent condition of things that was in the contemplation of
Congress.
And here it is urged that, as to the offense of carrying
intoxicating liquor into the territory, it must be that the
introduction thereof for supplying the needs of the state agencies
was permitted by the Enabling Act, and that the provisions of the
Act of 1895 must be taken to be repealed to that extent, leaving
the act in force against the introduction of liquor for other
purposes. But it is said (to quote from the brief):
"If that was the purpose of the Enabling Act, it entirely fails
to express it, because it does not provide who may so introduce
liquors into the territory, and who may not, for the purpose of
supplying local agencies, and the law would be so framed that
neither court nor layman could ascertain by reading it by whom and
under what circumstances such introduction was innocent or
criminal."
No doubt, in order to give effect to the constitutional
provision that permits the legislature to provide by law for
agencies under the supervision of the state for the sale of liquors
for the limited purposes specified, it is necessary that the state
agencies shall procure these liquors from some source.
The authorization is in the form of a proviso. Whether, by fair
construction, it qualifies merely the force of the
Page 225 U. S. 689
clause to which it is subjoined -- that is, qualifies merely the
prohibition against the manufacture, sale, etc., of intoxicating
liquors within the Indian Territory and the Indian reservations,
and the prohibition against the shipment of such liquors from other
parts of the state into the portions mentioned -- or whether, on
the other hand, it has the effect of permitting liquors to be
introduced from without the state, is a question that need not
detain us. Upon the former construction, the state would presumably
be obliged to cause the liquors to be manufactured within its own
borders for the supply of its distributing agencies. Upon the
latter construction, the state would be at liberty to import the
necessary liquors from beyond its borders. In the one case, as in
the other, the operation would be lawful and innocent when
conducted under the authority of the state, otherwise unlawful. It
is not to be presumed that the state would conceal or cloak its
operations, or leave its agents without evidence of their
authority. We can see no more practical difficulty here than there
is in determining in any other matter that is subject to public
regulation -- for instance, the killing or transportation of game,
the manufacture or sale of liquor -- whether a given act is done
with or without a license from the state. The argument
ab
inconvenienti is without force.
We are reminded that "laws which create crime ought to be so
explicit that all men subject to their penalties may know what acts
it is their duty to avoid" (
United States v. Brewer,
139 U. S. 278,
139 U. S. 288),
and that ambiguity and uncertainty about the meaning of a criminal
statute ought to be resolved by a strict interpretation in favor of
the liberty of the citizen.
But there is no uncertainty or ambiguity about the prohibition
of the Act of 1895 against carrying intoxicating liquors into the
Indian Territory. It is not suggested that there is any express
repeal of that prohibition. And
Page 225 U. S. 690
we are unable to see that a
pro tanto repeal by
implication leaves anything doubtful or ambiguous in the meaning of
that which remains.
It is not our purpose to qualify the doctrine established by
repeated decisions of this Court that the admission of a new state
into the Union on an equal footing with the original states imports
an equality of power over internal affairs. The cases cited by
counsel for the petitioner under this head are cases that dealt
with matters wholly internal.
United States v. McBratney,
104 U. S. 621;
Draper v. United States, 164 U. S. 240;
In re Heff, 197 U. S. 488,
197 U. S. 505.
And see Ward v. Race Horse, 163 U.
S. 504;
United States v. Celestine,
215 U. S. 278,
215 U. S. 288;
United States v. Sutton, 215 U. S. 291,
215 U. S. 294;
Hallowell v. United States, 221 U.
S. 317,
221 U. S. 323;
Dick v. United States, 208 U. S. 340.
The most recent decision of this Court upon the subject of the
proper construction of acts of Congress passed for the admission of
new states into the Union is
Coyle v. Smith, 221 U.
S. 559, where it was held that the Oklahoma Enabling Act
(34 Stat. c. 3335, p. 267), in providing that the capitol of the
state should temporarily be at the City of Guthrie, and should not
be changed therefrom previous to the year 1913, ceased to be a
limitation upon the power of the state after its admission. The
court, however, was careful to state (221 U.S.
221 U. S.
574):
"It may well happen that Congress should embrace in an enactment
introducing a new state into the Union legislation intended as a
regulation of commerce among the states, or with Indian tribes
situated within the limits of such new state, or regulations
touching the sole care and disposition of the public lands or
reservations therein, which might be upheld as legislation within
the sphere of the plain power of Congress. But in every such case,
such legislation would derive its force not from any agreement or
compact with the proposed new state, nor by reason of its
acceptance of such enactment as a term of admission, but
Page 225 U. S. 691
solely because the power of Congress extended to the subject,
and therefore would not operate to restrict the state's legislative
power in respect of any matter which was not plainly within the
regulating power of Congress."
We are here dealing with one of those matters such as are
referred to in this citation. The power of Congress to regulate
commerce between the states, and with Indian tribes situate within
the limits of a state, justifies Congress when creating a new state
out of territory inhabited by Indian tribes, and into which
territory the introduction of intoxicating liquors is by existing
laws and treaties prohibited, in so legislating as to preserve
those laws and treaties in force to the extent of excluding
interstate traffic in intoxicating liquors that would be
inconsistent with the prohibition.
Dick v. United States,
208 U. S. 340,
208 U. S. 353.
This being so, and since we find in the Oklahoma Enabling Act no
repeal, express or implied, of the Act of 1895 so far as pertains
to the carrying of liquor from without the new state into that part
of it which was the Indian Territory (saving as to liquor brought
in by the state for the use of state agencies established under the
provisions of the Enabling Act), it follows, upon the admitted
facts, that the United States district court has jurisdiction to
punish the petitioner for the offense that he has committed.
The petition for a writ of habeas corpus and the accompanying
application for certiorari will be
Denied.
[
Footnote 1]
Act of July 23, 1892, 27 Stat. 260.
"Chap. 234. An Act to Amend Sections Twenty-one Hundred and
Thirty-nine, Twenty-one Hundred and Forty, and Twenty-one Hundred
and Forty-one of the Revised Statutes Touching the Sale of
Intoxicants in the Indian Country, and for Other Purposes."
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress Assembled, that
section twenty-one hundred and thirty-nine of the Revised Statutes
be amended and reenacted so as to read as follows:"
" Sec. 2139. No ardent spirits, ale, beer, wine, or intoxicating
liquor or liquors of whatever kind, shall be introduced, under any
pretense, into the Indian country. Every person who sells,
exchanges, gives, barters, or disposes of any ardent spirits, ale,
beer, wine, or intoxicating liquors of any kind to any Indian under
charge of any Indian superintendent or agent, or introduces or
attempts to introduce any ardent spirits, ale, wine, beer, or
intoxicating liquor of any kind into the Indian country shall be
punished by imprisonment for not more than two years, and by fine
of not more than three hundred dollars for each offense. But it
shall be a sufficient defense to any charge of introducing or
attempting to introduce ardent spirits, ale, beer, wine, or
intoxicating liquors into the Indian country that the acts charged
were done under authority in writing from the War Department, or
any officer duly authorized thereunto by the War Department. All
complaints for the arrest of any person or persons, made for
violation of any of the provisions of this act shall be made in the
county where the offense shall have been committed, or, if
committed upon or within any reservation not included in any
county, then in any county adjoining such reservation, and, if in
the Indian territory, before the United States court commissioner,
or commissioner of the circuit court of the United States residing
nearest the place where the offense was committed, who is not for
any reason disqualified; but in all cases such arrests shall be
made before any United States court commissioner residing in such
adjoining county, or before any magistrate or judicial officer
authorized by the laws of the state in which such reservation is
located to issue warrants for the arrest and examination of
offenders by section ten hundred and fourteen of the Revised
Statutes of the United States. And all persons so arrested shall,
unless discharged upon examination, be held to answer and stand
trial before the court of the United States having jurisdiction of
the offense."
Act of March 1, 1895, 28 Stat. 693.
"Chap. 145. An Act to Provide for the Appointment of Additional
Judges of the United States Court in the Indian Territory, and for
Other Purposes."
"
* * * *"
"SEC. 8. That any person, whether an Indian or otherwise, who
shall, in said territory, manufacture, sell, give away, or in any
manner or by any means furnish to anyone, either for himself or
another, any vinous, malt, or fermented liquors, or any other
intoxicating drinks of any kind whatsoever, whether medicated or
not, or who shall carry, or in any manner have carried, into said
territory, any such liquors or drinks, or who shall be interested
in such manufacture, sale, giving away, furnishing to anyone, or
carrying into said territory any of such liquors or drinks, shall,
upon conviction thereof, be punished by fine not exceeding five
hundred dollars, and by imprisonment for not less than one month
nor more than five years."
Act of January 30, 1897, 29 Stat. 506.
"Chap. 109. An Act to Prohibit the Sale of Intoxicating Drinks
to Indians, Providing Penalties Therefor, and for Other
Purposes."
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That any
person who shall sell, give away, dispose of, exchange, or barter
any malt, spirituous, or vinous liquor, including beer, ale, and
wine, or any ardent or other intoxicating liquor of any kind
whatsoever, or any essence, extract, bitters, preparation,
compound, composition, or any article whatsoever, under any name,
label, or brand, which produces intoxication, to any Indian to whom
allotment of land has been made while the title to the same shall
be held in trust by the government, or to any Indian a ward of the
government, under charge of any Indian superintendent or agent, or
any Indian, including mixed bloods, over whom the government,
through its departments, exercises guardianship, and any person who
shall introduce or attempt to introduce any malt, spirituous, or
vinous liquor, including beer, ale, and wine, or any ardent or
intoxicating liquor of any kind whatsoever into the Indian country,
which term shall include any Indian allotment, while the title to
the same shall be held in trust by the government, or while the
same shall remain inalienable by the allottee without the consent
of the United States, shall be punished by imprisonment for not
less than sixty days, and by a fine of not less than one hundred
dollars for the first offense and not less than two hundred dollars
for each offense thereafter:
Provided, however, That the
person convicted shall be committed until fine and costs are paid.
But it shall be a sufficient defense to any charge of introducing
or attempting to introduce ardent spirits, ale, beer, wine, or
intoxicating liquors into the Indian country that the acts charged
were done under authority, in writing, from the War Department, or
any officer duly authorized thereunto by the War Department."
"SEC. 2. That so much of the Act of the twenty-third day of
July, eighteen hundred and ninety-two as is inconsistent with the
provisions of this act is hereby repealed."
[
Footnote 2]
Oklahoma Enabling Act (34 Stat. 267).
"An Act to Enable the Oklahoma and of the Indian Territory to
Form a Constitution and state government and Be Admitted into the
Union on an Equal Footing with the Original states,"
etc.
"SECTION 1. That the inhabitants of all that part of the area of
the United States now constituting the Territory of Oklahoma and
the Indian Territory, as at present described, may adopt a
constitution and become the State of Oklahoma, as hereinafter
provided:
Provided, That nothing contained in the said
constitution shall be construed to limit or impair the rights of
person or property pertaining to the Indians of said territories
(so long as such rights shall remain unextinguished) or to limit or
affect the authority of the government of the United States to make
any law or regulation respecting such Indians, their lands,
property, or other rights, by treaties, agreement, law, or
otherwise, which it would have been competent to make if this Act
had never been passed."
"SEC. 2. That all male persons over the age of twenty-one years,
who are citizens of the United States, or who are members of any
Indian nation or tribe in said Indian Territory and Oklahoma, and
who have resided within the limits of said proposed state for at
least six months next preceding the election, are hereby authorized
to vote for, and choose delegates to form a constitutional
convention for, said proposed state, and all persons qualified to
vote for said delegates shall be eligible to serve as delegates; .
. ."
"SEC. 3. . . . Said convention shall, and is hereby authorized
to, form a constitution and state government for said proposed
state. . . . And said convention shall provide in said
constitution:"
"
* * * *"
"Second. That the manufacture, sale, barter, giving away, or
otherwise furnishing, except as hereinafter provided, of
intoxicating liquors within those parts of said state now known as
the Indian Territory and the Osage Indian reservation, and within
any other parts of said state which existed as Indian reservations
on the first day of January, nineteen hundred and six, is
prohibited for a period of twenty-one years from the date of the
admission of said state into the Union, and thereafter until the
people of said state shall otherwise provide by amendment of said
constitution and proper state legislation. Any person, individual
or corporate, who shall manufacture, sell, barter, give away, or
otherwise furnish any intoxicating liquor of any kind including
beer, ale, and wine, contrary to the provisions of this section, or
who shall, within the above-described portions of said state,
advertise for sale or solicit the purchase of any such liquors, or
who shall ship or in any way convey such liquors from other parts
of said state into the portions hereinbefore described shall be
punished, on conviction thereof, by fine not less than fifty
dollars and by imprisonment not less than thirty days for each
offense:
Provided, That the legislature may provide by law
for one agency under the supervision of said state in each
incorporated town of not less than two thousand population in the
portions of said state hereinbefore described, and if there be no
incorporated town of two thousand population in any county in said
portions of said state, such county shall be entitled to have one
such agency, for the sale of such liquors for medicinal purposes,
and for the sale, for industrial purposes, of alcohol which shall
have been denaturized by some process approved by the United States
Commissioner of Internal Revenue, and for the sale of alcohol for
scientific purposes to such scientific institutions, universities,
and colleges as are authorized to procure the same free of tax
under the laws of the United States, and for the sale of such
liquors to any apothecary who shall have executed an approved bond,
in a sum not less than one thousand dollars, conditioned that none
of such liquors shall be used or disposed of for any purpose other
than in the compounding of prescriptions or other medicines, the
sale of which would not subject him to the payment of the special
tax required of liquor dealers by the United States, and the
payment of such special tax by any person within the parts of said
state hereinabove defined shall constitute
prima facie
evidence of his intention to violate the provisions of this
section. No sale shall be made except upon the sworn statement of
the applicant in writing, setting forth the purpose for which the
liquor is to be used, and no sale shall be made for medicinal
purposes except sales to apothecaries as hereinabove provided
unless such statement shall be accompanied by a
bona fide
prescription signed by a regular practicing physician, which
prescription shall not be filled more than once. Each sale shall be
duly registered, and the register thereof, together with the
affidavits and prescriptions pertaining thereto, shall be open to
inspection by any officer or citizen of said state at all times
during business hours. Any person who shall knowingly make a false
affidavit for the purpose aforesaid shall be deemed guilty of
perjury. Any physician who shall prescribe any such liquor except
for treatment of disease which, after his own personal diagnosis,
he shall deem to require such treatment, shall, upon conviction
thereof, be punished for each offense by fine of not less than two
hundred dollars or by imprisonment for not less than thirty days,
or by both such fine and imprisonment, and any person connected
with any such agency who shall be convicted of making any sale or
other disposition of liquor contrary to these provisions shall be
punished by imprisonment for not less than one year and one day.
Upon admission of said state into the Union, these provisions shall
be immediately enforceable in the courts of said state."
"Third. That the people inhabiting said proposed state do agree
and declare that they forever disclaim all right and title in or to
any unappropriated public lands lying within the boundaries
thereof, and to all lands lying within said limits, owned or held
by any Indian, tribe, or nation, and that, until the title to any
such public land shall have been extinguished by the United States,
the same shall be and remain subject to the jurisdiction, disposal,
and control of the United States."
"
* * * *"
SEC. 4 provides for the submission to the people of the
constitution to be adopted by the constitutional convention, and
the admission of the state (on ratification of the constitution by
the people) "on an equal footing with the original states."
"SEC.. 13. That said state, when admitted as aforesaid, shall
constitute two judicial districts, to be known as the Eastern
District of Oklahoma and the Western District of Oklahoma; the said
Indian Territory shall constitute said Eastern District, and the
said Oklahoma Territory shall constitute said Western District. . .
. The circuit and district courts for each of said districts, and
the judges thereof, respectively, shall possess the same powers and
jurisdiction and perform the same duties required to be performed
by the other circuit and district courts and judges of the United
States, and shall be governed by the same laws and regulations. . .
."
"SEC. 21. . . . All laws in force in the Territory of Oklahoma
at the time of the admission of said state into the Union shall be
in force throughout said state, except as modified or changed by
this act or by the constitution of the state, and the laws of the
United States not locally inapplicable shall have the same force
and effect within said state as elsewhere within the United
States."