In determining the effect of statutes regarding the introduction
of liquor into Indian country, within the territorial limits of
Oklahoma, every consideration arising out of the guardianship of
the federal government over the Indians and control of their land
indicates that, as to them, the liquor prohibition should be
maintained after statehood so far as consistent with the control of
the state over its internal police.
The liquor prohibition, so far as it concerns Indians, has
always been deemed one of the peculiar responsibilities of the
federal government.
The provisions of § 2139, Rev.Stat., as amended by the Acts of
July 23, 1892, and January 30, 1897, so far as they related to the
introduction of liquor into the Indian Territory from points
outside of that Territory, but within what is now Oklahoma, have
not been repealed, either expressly or by implication, by the
Oklahoma Enabling Act.
The facts, which involve the construction of the various acts
relating to the introduction of intoxicating liquor into Indian
country in Oklahoma, are stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
The defendant in error was indicted in the United States
District Court for the Eastern District of Oklahoma, the charge
being that,
"on the 19th day of March, in the year 1912, in the County of
Muskogee, in the said
Page 229 U. S. 227
district, and within the jurisdiction of said court, the said
county and district then and there being a portion of the Indian
country of the said United States, (he) did at the time and place
aforesaid, unlawfully, willfully, knowingly, and feloniously
introduce into said Indian country one quart of malt, vinous,
spirituous, distilled, ardent, and intoxicating liquor, to-wit,
whisky. Contrary to the form of the statute in such case made and
provided,"
etc.
The district court sustained his demurrer, and the case is
brought here under the Criminal Appeals Act.
The statutes involved are § 2139 of the Revised Statutes, as
amended by the Act of July 23, 1892, c. 234, 27 Stat. 260, and by
the Act of January 30, 1897, c. 109, 29 Stat. 506; also § 8 of the
Act of March 1, 1895, c. 145, 28 Stat. 693, and the Oklahoma
Enabling Act of June 16, 1906, c. 3335, 34 Stat. 267. Extracts from
these are set forth in footnotes to the opinion in
Ex Parte
Webb, 225 U. S. 663,
225 U. S. 671,
225 U. S. 677.
Muskogee County is a part of what was the Indian territory.
The district court in effect construed the indictment as
charging not an interstate transaction, but an introduction of
liquor from a point within the State of Oklahoma, but outside of
what is now Indian country, into such Indian country. The decision
of this Court in the
Webb case, which had to do with § 8
of the Act of March 1, 1895, and the effect of the Enabling Act
upon it, and also the decision of the Circuit Court of Appeals for
the eighth circuit in
United States Express Co. v.
Friedman, 191 F. 673, and
Mosier v. United States,
198 F. 54 -- both of which turned upon the effect of the Enabling
Act upon the Act of January 30, 1897 -- were reviewed by the
district court, and the conclusion reached, principally because of
the line of reasoning expressed in the opinion in the
Webb
case, was
"that the provisions of Rev.Stat. § 2139, as amended by the Act
of 1892 and the Act of 1897, so far as they related, if at all, to
the introduction
Page 229 U. S. 228
of liquor into the Indian territory from points outside of that
territory, but within what is now Oklahoma, must be considered as
having been repealed by the Enabling Act."
And again:
"This confines offenses of this character of which the federal
court has jurisdiction to those in which the liquor is introduced
from a point without the state. It is a violation of the state law,
as established by the constitutional provision above referred to,
to introduce liquor into what was formerly Indian Territory from
some other portion of Oklahoma, but such violation is an offense
exclusively within the jurisdiction of the state court. In order to
give the federal court jurisdiction, it is necessary that the
introduction of the liquor should have been from a point without
the state. This is an essential element of the offense, so far as
the federal court is concerned, and should therefore be charged in
the indictment. It follows that the demurrer must be
sustained."
The Criminal Appeals Act, March 2, 1907, 2564, 34 Stat. 1246,
provides for a writ of error to be taken by the United States from
the district court direct to this Court from a decision or judgment
sustaining a demurrer to an indictment "where such decision or
judgment is based upon the invalidity or construction of the
statute upon which the indictment is founded." The present case is
clearly within this act, as previously interpreted and applied.
United States v. Sutton, 215 U. S. 291,
215 U. S. 294;
United States v. Keitel, 211 U. S. 370,
211 U. S. 385;
United States v. Biggs, 211 U. S. 507,
211 U. S. 518;
United States v. Stevenson, 215 U.
S. 190,
215 U. S. 195;
United States v. Miller, 223 U. S. 599,
223 U. S. 602;
United States v. Patten, 226 U. S. 525,
226 U. S. 535;
United States v. George, 228 U. S. 14,
228 U. S. 17;
United States v. Anderson, 228 U. S.
52;
United States v. Pacific & Arctic Co.,
228 U. S. 87,
228 U. S.
100.
Upon the merits, the principal question is whether the Acts of
1892 and of 1897 were repealed, as to intrastate
Page 229 U. S. 229
transactions, by the effect of the Enabling Act and the
admission of the state, with the constitutional prohibition of the
liquor traffic that was prescribed by that act. It is not contended
that there was any express repeal. The insistence that there was a
necessary repeal by implication is supported by arguments that may
be outlined as follows:
(a) That, since the Act of 1895 was a special act, applicable by
name to the Indian territory, it had the necessary effect of
superseding as to that territory the existing general statute (§
2139, Rev.Stat., as amended in 1892) against the introduction and
sale of intoxicating liquors in the Indian country.
(b) That § 8 of the Act of 1895 was in turn superseded or
repealed
in toto by the Act of 1897 and the Enabling
Act.
(c) Or else that the Act of 1897, because amendatory only of the
general statute against the introduction and sale of intoxicating
liquors in the Indian country, had no effect upon the Act of 1895,
and did not apply to the Indian territory because that territory
was covered by the Act of 1895.
(d) And that whether the Acts of 1892 and 1897, or either of
them, was in force in Indian territory prior to the admission of
Oklahoma as a state, they were necessarily superseded as to
intrastate transactions by the force and effect of that act, upon
the same grounds on which this Court said in the
Webb case
that the Act of 1895 was superseded.
Section 2139, Rev.Stat., providing for the punishment of persons
introducing liquor into the Indian country, traces its origin to §
20 of the Indian intercourse Act of June 30, 1834, c. 161, 4 Stat.
732, as amended by act of March 15, 1864, c. 33, 13 Stat. 29. The
amendment of 1892 (set forth in 225 U.S.
225 U. S. 671)
extended the prohibition to include ale, beer, and intoxicating
liquors of any kind, as well as ardent spirts and wine, and added a
clause
Page 229 U. S. 230
fixing the venue for complaints, arrests, and trials, including
a special provision that complaints for offenses committed in the
Indian territory should be made 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.
The penalty under this act, as under § 2139, Rev.Stat., is
imprisonment for not more than two years and fine of not more than
$300 for each offense.
Next in chronological order was the Act of March 1, 1895, c.
145, 28 Stat. 693, the title of which is "An Act to Provide for the
Appointment of Additional Judges of the United States Court in the
Indian Territory, and for Other Purposes." Section 8 (set forth 225
U.S.
225 U. S. 672)
provides
inter alia, that any person carrying into the
territory any vinous, malt, or fermented liquors or other
intoxicating drinks, shall, upon conviction, be punished by fine
not exceeding $500 and by imprisonment for not less than one month
nor more than five years. Other sections have to do with the
creation of judicial districts in the territory, the establishment
of courts, the appointment of judges, attorneys, marshals, clerks,
etc. Section 4 adopts the criminal law provisions of Mansfield's
Digest of General Laws of Arkansas, with certain reservations. And
§ 13 declares
"that none of the provisions of any other acts, or of any of the
laws of the United States, or of the State of Arkansas heretofore
put in force in said Indian territory, except so far as they come
in conflict with the provisions of this act, are intended to be
repealed or in any manner affected by this act, but all such acts
and laws are to remain in full force and effect in said
territory."
The Act of January 30, 1897, c. 109, 29 Stat. 506, while having
an independent title -- "An Act to Prohibit the sale of
Intoxicating Drinks to Indians, providing Penalties Therefor, and
for Other Purposes" -- was manifestly intended primarily as an
amendment of the Act of 1892.
Page 229 U. S. 231
This appears from a comparison of the clauses defining the acts
prohibited, from the circumstance that the Act of 1897 contains no
provisions of its own prescribing the venue for complaints,
arrests, and trials, and especially from the provision of its
second section "that so much of the Act of the twenty-third day of
July, 1892, as is inconsistent with the provisions of this act is
hereby repealed." The prohibition is made to apply to sales of
intoxicants
"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 the familiar prohibition of the introduction of intoxicants
"into the Indian country" is repeated, with the addition of the
following new clause:
"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."
And the act provides that any person violating its
provisions
"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."
The Act of 1895, although evidently
in pari materia, is
not mentioned in the Act of 1897. This circumstance, coupled with
the fact that the latter act contains an express repealing clause,
is, we think, negatively significant upon the question of implied
repeal. In our opinion, the Act of 1897 was not intended to take
the place of § 8 of the Act of 1895 after the manner of a revision,
and there is no such complete repugnance as to render it clear that
that section was intended to be repealed
in toto.
It is contended that, while the Act of 1892 covered the
Page 229 U. S. 232
subject of the introduction and sale of intoxicating liquors in
Indian country, and was applicable to the Indian territory because
it was Indian country, the passage by Congress of the Act of 1895
-- a special act applicable to the territory by name, and covering,
by its eighth section, the general subject of the introduction and
sale of intoxicating liquors therein -- necessarily superseded the
former act so far as the territory was concerned.
To show the purpose that Congress had in mind in passing this
Act of 1895, the argument is that, prior to the general allotment
act of February 8, 1887, 24 Stat. 388, c. 119, all Indian lands
were held in common by the Indian tribes; that soon thereafter, it
came to be questioned whether § 2139, Rev.Stat., as amended by the
1892 act, would apply to an Indian allottee and his allotment under
the 1887 act, for the reason that, upon allotment thereunder, the
individual Indian became a citizen of the United States, and his
allotment ceased to be Indian country under the accepted definition
(
Bates v. Clark, 95 U. S. 204;
Ex Parte Crow Dog, 109 U. S. 556),
because of the Indian title's having been extinguished; that,
beginning with the Act of March 3, 1893, 27 Stat. 645, 646, c. 209,
Congress began to contemplate the allotment in severalty of all
lands within the Indian territory, and to look forward to the
ultimate creation of a new state out of that territory; that it was
supposed that the effect of allotment would be the same as under
the 1887 act, in that the lands allotted would cease to be Indian
country, and that hence Congress passed § 8 of the 1895 act in
order that the people residing in Indian territory might not be
left without protection against the introduction and sale of
intoxicants when the 1892 act should become inoperative because of
the extinguishment of the Indian titles. This argument is ingenious
and has much force, but it takes too little account, we think, of §
13 of the Act of 1895, above quoted.
Page 229 U. S. 233
Assuming all that is claimed as to the general object that
Congress had in view during these years when the Indian territory
was in a transition state, it seems to us safer to rely upon the
words of the several acts of 1892, 1895, and 1897 in order to
determine the true intent and meaning of the lawmaker. If Congress,
in enacting the eighth section of the Act of 1895, had intended to
totally supersede the Act of 1892 as to the Indian territory, that
purpose would naturally have been expressed in plain terms. And so
would the Act of 1897 presumably have expressed the purpose to
supersede and repeal that section if such purpose had existed. The
very fact that Congress contemplated that the situation in Indian
territory was but temporary -- that, either because of statehood or
because of the allotment of the Indian lands in severalty, the
necessity for retaining these prohibitory laws upon the statute
book would not long continue -- tends to negative a desire on the
part of Congress to presently repeal either of them, and therefore
rebuts the presumption of an implied repeal of one act by the
other.
It seems to us, upon the whole, that, during this transition
period preceding the admission of Oklahoma as a state, the several
acts referred to were intended to and did stand together, excepting
so far (if at all) as they were necessarily repugnant one to the
other -- that is to say, the Act of 1892, as amended in 1897, on
the one hand, making "Indian country" (a term defined in
Bates
v. Clark, supra; Clairmont v. United States, 225 U.
S. 551,
225 U. S. 558,
and cases cited) the test of the prohibition respecting the
introduction of intoxicants, and the Act of 1895, on the other
hand, employing the territorial test, irrespective of whether it
was or continued to be Indian country.
We thus come to consider the effect of the Enabling Act of June
16, 1906, c. 3335, 34 Stat. 267, and the admission of Oklahoma as a
state thereunder, which occurred November 16, 1907.
Page 229 U. S. 234
The pertinent clauses of the act may be found in 225 U.S.
225 U. S. 677,
the clause respecting liquor prohibition being especially
important. We should also note the proviso in the first section,
that nothing in the state constitution should
"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."
And also this clause from the twenty-first section:
"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."
It is suggested, rather than argued, that the reservation of
"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"
evidences a purpose
not to preserve
prior laws
or regulations respecting the Indians. But this is sufficiently
answered by what was said in
Ex Parte Webb, 225 U.
S. 663,
225 U. S. 682,
where the view of the Court was expressed as follows:
"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
Page 229 U. S. 235
inadmissible 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."
When it is recalled that the new state was made up by combining
two territories theretofore separately existing under different
systems of laws, one of them being largely inhabited by Indian
tribes, with whom numerous treaties had previously been made,
differing from each other in many respects, but each recognizing to
some extent the propriety of restricting the liquor traffic, the
importance of these clauses in the Enabling Act -- read, as they,
of course, must be read, in connection with the restriction of the
manufacture and sale of liquors within those parts of the state
known as the Indian territory and the Osage Indian Reservation for
a period of twenty-one years, imposed upon the new state by § 3 of
the act -- is very evident.
In the
Webb case, as appears from the opinion, p.
225 U. S. 676,
the government conceded that the Act of 1895 had been repealed by
the Enabling Act and the admission of the state thereunder, saving
so far as it prohibited the carrying of intoxicating liquors, etc.,
from another state into the territory. The statement to the like
effect in the
Page 229 U. S. 236
opinion, p.
225 U. S. 681,
was made in view of this concession; but we see no reason for
recalling it. The language used was:
"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 this had reference only to the Act of 1895, and not to the
Act of 1897, it having previously been stated in the opinion (p.
225 U. S. 676)
that, since § 2139, Rev.Stat., and the Act of 1897 contained
provisions respecting the sale of intoxicating liquors to Indians,
and in this and perhaps in other important respects covered ground
not covered by the Act of 1895, we must not be understood as
deciding that those prohibitions were no longer in force within
what was the Indian territory.
But, because the Act of 1895 was impliedly repealed with respect
to intrastate manufacture and traffic, it does not necessarily
follow that the Act of 1892, as amended in 1897, was likewise
repealed in respect of that traffic, by the Enabling Act and the
admission of the state. The one was a territorial prohibition
applicable to the Indian territory because made so by Congress,
irrespective of other considerations; while the other act,
applicable to Indian country throughout the states and territories
generally, happened to be applicable to the Indian territory
because that was Indian country. But, as already pointed out, in
passing the Enabling Act, Congress knew that, if, and when, and so
far as, portions of the Indian territory ceased to be Indian
country, the Acts of 1892 and 1897 would cease to apply,
irrespective
Page 229 U. S. 237
of statehood, and, on the other hand, must be deemed to have
intended that the establishment of statehood should repeal the Act
of 1895 with respect to matters wholly intrastate, because that act
(whatever reasons may have moved Congress to enact it) was, by its
terms, applicable to the territory as a territory and as a whole,
irrespective of whether it was Indian country, and this kind of
internal prohibition of the liquor traffic would naturally cease
with statehood, because inconsistent with local self-government and
with equality between the states.
The terms of the Act of January 30, 1897, show that it was
especially designed to provide for the changes consequent upon the
adoption of the policy of allotting the Indian lands in severalty.
Hallowell v. United States, 221 U.
S. 317. This policy was in progress in the Indian
territory at the time of the passage of the Oklahoma Enabling Act.
The history has been so recently rehearsed that it need not be here
repeated.
Tiger v. Western Investment Co., 221 U.
S. 286,
221 U. S.
300-302;
Heckman v. United States, 224 U.
S. 413,
224 U. S. 435;
Mullen v. United States, 224 U. S. 448;
Goat v. United States, 224 U. S. 458;
Deming Investment Co. v. United States, 224 U.
S. 471. Every consideration arising out of the
governmental guardianship over the Indians and control over their
lands indicated that, as to them, the liquor prohibition should be
maintained after statehood so far as it was consistent with the
control of the state over its internal police. The Act of 1892, as
amended in 1897, concededly remains in force in other states where
there is Indian country or governmental trusteeship over Indian
lands or guardianship over the Indians.
United States v.
Sutton, 215 U. S. 291,
215 U. S. 295.
Such legislation is of undoubted constitutionality,
United
States v. Kagama, 118 U. S. 375,
118 U. S. 383;
Ex Parte Webb, supra. The prohibition against introducing
liquor into the Indian country has been consistently adhered
Page 229 U. S. 238
to for many years, with beneficial results so far as the welfare
of the Indians is concerned.
All of these considerations were presumably in the mind of
Congress when it passed the Enabling Act, and they are inconsistent
with any tacit purpose to repeal the Acts of 1892 and 1897. The
liquor prohibition, so far as it concerns the Indians, has always
been deemed one of the peculiar responsibilities of the government
at Washington, and it may easily be believed that Congress felt
reluctant to delegate the subject matter wholly to the state
government that was about to be established in the Indian
territory, especially as the same subject matter in other states
remained, as it still remains, under federal control.
In
United States Exp. Co. v. Friedman, 191 F. 673, the
Circuit Court of Appeals for the Eighth Circuit held that the
Enabling Act did not repeal the Act of 1897, at least with respect
to the introduction of liquor into the Indian country from points
outside the state. In
Mosier v. United States, 198 F. 54,
the same court held the Act of 1897 to be in force within the state
so far as relates to the sale of liquors to Indians.
Upon the whole, while the matter is not free from difficulty, it
seems to us the better argument is against the implied repeal. It
follows that the district court erred in holding the acts in
question,
viz., § 2139, Rev.Stat., as amended by the Acts
of 1892 and 1897, to be no longer in force, and erred in sustaining
the demurrer to the indictment. The judgment should be reversed,
and the cause remanded for further proceedings in accordance with
the views above expressed.
Judgment reversed.