Congress has power to make conditions in an Enabling Act, and
require the state to assent thereto, as to such subjects as are
within the regulating power of Congress. Coyle v.
Oklahoma, 221 U. S. 559
221 U. S.
Such legislation, when it derives its force not from the
resulting compact, but solely from the power of Congress over the
subject, does not operate to restrict the legislative power of the
state in respect to any matter not plainly within the regulating
power of Congress. Coyle v. Oklahoma, 221 U.
The status of the Pueblo Indians in New Mexico and their lands
is such that Congress can competently prohibit the introduction of
intoxicating liquors into such lands notwithstanding the admission
of New Mexico to statehood.
The power and duty of the United States under the Constitution
to regulate commerce with the Indian tribes includes the duty to
care for and protect all dependent Indian communities within its
borders, whether within its original limits or territory
subsequently acquired and whether within or without the limits of a
state. United States v. Kagama, 118 U.
Page 231 U. S. 29
Congress may not bring a community or body of people within
range of its power by arbitrarily calling them Indians; but, in
respect of distinctly Indian communities, the questions whether and
for how long they shall be recognized as requiring protection of
the United States are to be determined by Congress, and not by the
In reference to all political matters relating to Indians, it is
the rule of this Court to follow the executive and other political
departments of the government whose more special duty it is to
determine such affairs. If they recognize certain people as a tribe
of Indians, this Court must do the same.
and not decided, whether the Pueblo Indians of
New Mexico are citizens of the United States.
The fact that Indians are citizens is not an obstacle to the
exercise by Congress of its power to enact laws for the benefit and
protection of tribal Indians as a dependent people.
Congress has power to exclude liquor from the lands of the
Pueblo Indians, for although the Indians have a fee simple title,
it is communal, no individual owning any separate tract. United
States v. Joseph, 94 U. S. 614
It was a legitimate exercise of power on the part of Congress to
provide in the Enabling Act under which New Mexico was admitted as
a state against the introduction of liquor into the Indian country,
and the prohibition extends to lands owned by the Pueblo Indians in
198 F. 53 reversed.
The facts, which involve the validity, as applied to the Pueblo
Indians of New Mexico, of the Act of January 30, 1897, as
supplemented by the Enabling Act of June 20, 1910, in regard to the
introduction of intoxicating liquor into Indian country and the
status of the Pueblo Indians of New Mexico, are stated in the
Page 231 U. S. 36
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is a criminal prosecution for introducing intoxicating
liquor into the Indian country, to-wit, the Santa Clara pueblo, in
the State of New Mexico. In the district court, a demurrer to the
indictment was sustained and the indictment dismissed upon the
theory that the statute upon which it is founded is invalid, as
applied to Indian pueblos in New Mexico, because usurping a part of
the police power of the state and encroaching upon its equal
footing with the other states. 198 F. 539.
The indictment is founded upon the Act of January 30, 1897, 29
Stat. 506, c. 109, as supplemented by § 2 of the Act of June 20,
1910, 36 Stat. 557, c. 310, being the New Mexico Enabling Act. The
first act makes it a punishable offense to introduce intoxicating
liquor into the Indian country, and the second, in naming the
conditions upon which New Mexico should be admitted into the
Page 231 U. S. 37
prescribed, [Footnote 1
substance, that the lands then owned or occupied by the Pueblo
Indians should be deemed and treated as Indian country within the
meaning of the first act and of kindred legislation by
Page 231 U. S. 38
Whether without this legislative interpretation the first act
would have included the pueblo lands we need not consider. The
territorial supreme court had but recently held that it did not
include them (United States v. Mares,
14 N.M. 1), and
Congress, evidently wishing to make sure of a different result in
the future, expressly declared that it should include them. That
this was done in the Enabling Act, and that the state was required
to, and did, assent to it as a condition to admission into the
Union, in no wise affects the force of the Congressional
declaration, if only the subject be within the regulating power of
Congress. As was said by this Court in Coyle v. Oklahoma,
221 U. S. 559
221 U. S.
"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 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."
To the same effect are Pollard v.
3 How. 212, 44 U. S.
-225, 44 U. S. 229
Ex Parte Webb, 225 U. S. 663
225 U. S. 683
225 U. S.
The question to be considered, then, is whether the status of
the Pueblo Indians and their lands is such that Congress
competently can prohibit the introduction of intoxicating liquor
into those lands notwithstanding the admission of New Mexico to
There are as many as twenty Indian pueblos scattered
Page 231 U. S. 39
over the state, having an aggregate population of over 8,000.
The lands belonging to the several pueblos vary in quantity, but
usually embrace amount 17,000 acres, held in communal, fee simple
ownership under grants from the King of Spain, made during the
Spanish sovereignty, and confirmed by Congress since the
acquisition of that territory by the United States. 10 Stat. 309,
c. 103, § 8; 11 Stat. 374, c. 5. As respects six of the pueblos,
one being the Santa Clara, adjacent public lands have been reserved
by executive orders for the use and occupancy of the Indians.
The people of the pueblos, although sedentary, rather than
nomadic, in their inclinations, and disposed to peace and industry,
are nevertheless Indians in race, customs, and domestic government.
Always living in separate and isolated communities, adhering to
primitive modes of life, largely influenced by superstition and
fetichism, and chiefly governed according to the crude customs
inherited from their ancestors, they are essentially a simple,
uninformed, and inferior people. Upon the termination of the
Spanish sovereignty, they were given enlarged political and civil
rights by Mexico, but it remains an open question whether they have
become citizens of the United States. See
Guadalupe Hidalgo, Arts. VIII and IX, 9 Stat. 922, 929; United
States v. Joseph, 94 U. S. 614
94 U. S. 618
Elk v. Wilkins, 112 U. S. 94
this as it may, they have been regarded and treated by the United
States as requiring special consideration and protection, like
other Indian communities. Thus, [Footnote 2
] public moneys have been expended in presenting
them with farming implements and utensils,
Page 231 U. S. 40
and in their civilization and instruction; agents and
superintendents have been provided to guard their interests;
central training schools and day schools at the pueblos have been
established and maintained for the education of their children;
dams and irrigation works have been constructed to encourage and
enable them to cultivate their lands and sustain themselves; public
lands, as before indicated, have been reserved for their use and
occupancy where their own lands were deemed inadequate; a special
attorney has been employed since 1898 at an annual cost of $2,000,
to represent them and maintain their rights, and when latterly the
territory undertook to tax their lands and other property, Congress
forbade such taxation, saying:
"That the lands now held by the various villages or pueblos of
Pueblo Indians, or by individual members thereof, within Pueblo
reservations or lands, in the Territory of New Mexico, and all
personal property furnished said Indians by the United States, or
used in cultivating said lands, and any cattle and sheep now
possessed or that may hereafter be acquired by said Indians, shall
be free and exempt from taxation of any sort whatsoever, including
taxes heretofore levied, if any, until Congress shall otherwise
33 Stat. 1048, 1069, c. 1479. An exempting provision was also
inserted in § 2 of the Enabling Act.
The local estimate of this people is reflected by a New Mexico
statute adopted in 1854, and carried into subsequent compilations,
whereby they were "excluded from the privilege of voting at the
popular elections of the territory" other than the election of
overseers of ditches in which they were interested, and the
election of the officers of their pueblos "according to their
ancient customs." Laws 1853-4, p. 142, § 3; Comp.Laws 1897, §
With one accord, the reports of the superintendents charged with
guarding their interests show that they are
Page 231 U. S. 41
dependent upon the fostering care and protection of the
government, like reservation Indians in general; that, although
industrially superior, they are intellectually and morally inferior
to many of them, and that they are easy victims to the evils and
debasing influence of intoxicants. We extract the following from
published reports of the superintendents:
"While a few of these Pueblo Indians are ready for citizenship
and have indicated the same by their energy and willingness to
accept service from the railroad companies and elsewhere, and by
accepting the benefits of schools and churches, a large percent of
them are unable, and not yet enough advanced along the lines of
civilization, to take upon themselves the burden of citizenship. It
is my opinion that, in the event taxation is imposed, it will be
but a short time before the masses of the New Mexico Pueblo Indians
will become paupers. Their lands will be sold for taxes, the whites
and Mexicans will have possession of their ancient grants, and the
government will be compelled to support them or witness their
"The Pueblo have little or no money, and they cannot understand
why they should be singled out from all other Indians and be
compelled to bear burdens [territorial taxes] which they are not
able to assume. . . . They will not vote, nor are they sufficiently
well informed to do so intelligently."
"Last November, when they had their Shaleco dance, I determined
to put a stop to the drunkenness. I wrote to the Indian Office
asking for a detachment from Fort Wingate. I soon received a reply
that my request had been granted. I said nothing to anyone. The
afternoon the Shaleco arrived, the detachment rode in, the Indians
thinking they were passing through, and were making preparations to
have a good time. When they were notified that a Navaho was
Page 231 U. S. 42
promptly arrested him and brought him over to the guardhouse,
and during the evening two others were arrested with whisky in
their possession, and also a Pueblo Indian. The detachment remained
until the dance was over and the visiting Indians had left for
"Until the old customs and Indian practices are broken among
this people, we cannot hope for a great amount of progress. The
secret dance, from which all whites are excluded, is perhaps one of
the greatest evils. What goes on at this time I will not attempt to
say, but I firmly believe that it is little less than a ribald
system of debauchery. The Catholic clergy is unable to put a stop
to this evil, and know as little of same as others. The United
States mails are not permitted to pass through the streets of the
pueblos when one of these dances is in session; travelers are met
on the outskirts of the pueblo and escorted at a safe distance
around. The time must come when the Pueblos must give up these old
pagan customs and become citizens in fact."
"There is a greater desire among the Pueblo to live apart and be
independent and have nothing to do with the white race than among
any other Indians with whom I have worked. They really care nothing
for schools, and only patronize them to please their agent and
incidentally to get the issues given out by the teacher. The
children, however, make desirable pupils, and if they could be
retained in school long enough, more might be accomplished. The
return student going back to the pueblo has a harder task before
him than any other class of returned students I know. It is easier
to go back to the Sioux tepee and lead a white man's life than to
go back to the pueblo and retain the customs and manners taught in
"In pueblo life, the one-man domination -- the fear of the wrath
of the governor of the pueblo -- is what holds this people down.
The rules of the pueblo are so strict that
Page 231 U. S. 43
the individual cannot sow his wheat, plant his corn, or harvest
same in the autumn without the permission of the pueblo
authorities. The pueblos under my jurisdiction that adhere
religiously to old customs and rules are Taos, Picuris, Santo
Domingo, and Jemez, though there are none of them that have made
much progress away from the ancient and pagan rites."
"Intemperance is the besetting sin of the Pueblo. . . . If the
law against selling intoxicants to this simple and ignorant people
is allowed to stand as now interpreted [Act of 1897, as construed
by territorial court], it simply means the ultimate extermination
of the Pueblo and the survival of the fittest."
"While apparently the Pueblo Indians are law-abiding, it has
come to my notice during the past year that, in the practice of the
Pueblo form of government, cruel and inhuman punishment is often
inflicted. I have strongly advised the Indians against this, and
your office has, through me, done likewise. The Pueblos, however,
are very insistent upon retaining their ancient form of government.
As long as they are permitted to live a communal life and exercise
their ancient form of government, just so long will there be
ignorant and wild Indians to civilize. The Pueblo form of
government recognizes no other form of government and no other
authority. While apparently they submit to the laws of the
territory and the government, they do so simply because they are
compelled to acquiesce. The returned student who has been five
years at the boarding school is compelled to adopt the Indian dress
upon his return to the pueblo; he is compelled to submit to all the
ancient and heathen customs of his people. If he rebels, he is
punished. He therefore lapses back and becomes like one who has
never seen the inside of a school."
"The Zunis, especially the old people, are very much opposed to
sending their children to school, and
Page 231 U. S. 44
to every influence that tends to draw them away from their old
ways and habits of living; but, by persistent effort and by
appealing to their reason, we succeeded in filling the school with
children. The children are happy and contented while at school, but
when they go home for a visit, their mothers and older sisters talk
with them and make them dissatisfied, and they do not wish to
return. This is especially true of the girls. . . . Immorality and
a general laxness in regard to their family relations, together
with their pagan practices, are the great curse of this tribe. They
have no marriage ceremony that is binding, and a man will often
live with two or three different women during one year. This custom
is very demoralizing. In some cases, the father will sell his
daughters and the husband his wife for the purpose of prostitution.
If marriage and divorce laws could be enforced, it would be a great
blessing to these people. . . . We have had very little trouble
with liquor on the reservation during the past year, and the Pueblo
officers cooperate with me in trying to keep it from being brought
on the reservation."
This view of Pueblo customs, government, and civilization finds
strong corroboration in the writings of ethnologists such as
Bandelier and Stevenson who, in prosecuting their work, have lived
among the Pueblos and closely observed them. Papers Arch. Inst. Am.
ser. vol. 3, pt. 1 (1890); Bureau Am. Ethn. Reports, vols. 11
(1889-'90) and 23 (1901-'02).
During the Spanish dominion, the Indians of the pueblos were
treated as wards requiring special protection, were subjected to
restraints and official supervision in the alienation of their
property, and were the beneficiaries of a law declaring "that in
the places and pueblos of the Indians, no wine shall enter, nor
shall it be sold to them." Chouteau v.
16 How. 203, 57 U. S. 237
Laws of the Indies, Book 6, title 1, laws 27 and 36, title 2, law
1; Book 5,
Page 231 U. S. 45
title 2, law 7; Book 4, title 12, laws 7, 9, 16-20; Cedulas and
Decrees shown in Hall's Mexican Law, §§ 162-171. After the Mexican
succession, they were elevated to citizenship and civil rights not
before enjoyed, but whether the prior tutelage and restrictions
were wholly terminated has been the subject of differing opinions.
United States v.
5 Wall. 536, 72 U. S. 540
Sunol v. Hepburn,
1 Cal. 254, 279-280, 291-292; 1 Nuevo
Febrero Mexicano, pp. 24, 25; Hall's Mexican Laws, § 161;
United States v.
17 How. 525, 58 U. S. 540
In the last case, this Court observed:
"The improvement of the Indians, under the influence of the
missionary establishments in New Spain, which had been specially
encouraged and protected by the mother country, had, doubtless,
qualified them in a measure for the enjoyment of the benefits of
the new institutions. In some parts of the country, very
considerable advancement had been made in civilizing and
christianizing the race. From their degraded condition, however,
and ignorance generally, the privileges extended to them in the
administration of the government must have been limited, and they
still, doubtless, required its fostering care and protection."
And in the Pico
case, the Court, referring to the
status of an Indian pueblo and its inhabitants during the Mexican
"The disposition of the lands assigned was subject at all times
to the control of the government of the country. The pueblo of Las
Flores was an Indian pueblo, and over the inhabitants the
government extended a special guardianship."
But it is not necessary to dwell specially upon the legal status
of this people under either Spanish or Mexican rule, for whether
Indian communities within the limits of the United States may be
subjected to its guardianship and protection as dependent wards
turns upon other considerations. See
3 How. 212, 44 U. S. 225
Not only does the Constitution expressly authorize Congress to
regulate commerce with the Indian tribes, but
Page 231 U. S. 46
long continued legislative and executive usage and an unbroken
current of judicial decisions have attributed to the United States
as a superior and civilized nation the power and the duty of
exercising a fostering care and protection over all dependent
Indian communities within its borders, whether within its original
territory or territory subsequently acquired, and whether within or
without the limits of a state. As was said by this Court in
United States v. Kagama, 118 U. S. 375
118 U. S.
"The power of the general government over these remnants of a
race once powerful, now weak and diminished in numbers, is
necessary to their protection, as well as to the safety of those
among whom they dwell. It must exist in that government, because it
never has existed anywhere else, because the theater of its
exercise is within the geographical limits of the United States,
because it has never been denied, and because it alone can enforce
its laws on all the tribes."
In Tiger v. Western Investment Co., 221 U.
, 221 U. S. 315
prior decisions were carefully reviewed and it was further
"Taking these decisions together, it may be taken as the settled
doctrine of this Court that Congress, in pursuance of the long
established policy of the government, has a right to determine for
itself when the guardianship which has been maintained over the
Indian shall cease. It is for that body, and not the courts, to
determine when the true interests of the Indian require his release
from such condition of tutelage."
Of course, if it is not meant by this that Congress may bring a
community or body of people within the range of this power by
arbitrarily calling them an Indian tribe, but only that, in respect
of distinctly Indian communities, the questions whether, to what
extent, and for what time they shall be recognized and dealt with
as dependent tribes requiring the guardianship and protection of
the United States are to be determined by Congress, and not by the
courts. United States v.
3 Wall. 407, 70 U. S.
Page 231 U. S. 47
United States v. Rickert, 188 U.
, 188 U. S.
-445; Matter of Heff, 197 U.
, 197 U. S. 499
Tiger v. Western Investment Co., 221 U.
, 221 U. S.
As before indicated, by a uniform course of action beginning as
early as 1854 and continued up to the present time, the legislative
and executive branches of the government have regarded and treated
the Pueblos of New Mexico as dependent communities entitled to its
aid and protection, like other Indian tribes, and, considering
their Indian lineage, isolated and communal life, primitive customs
and limited civilization, this assertion of guardianship over them
cannot be said to be arbitrary, but must be regarded as both
authorized and controlling. As was said in United
States v. Holliday,
3 Wall. 407, 70 U. S.
"In reference to all matters of this kind, it is the rule of
this Court to follow the action of the executive and other
political departments of the government, whose more special duty it
is to determine such affairs. If by them those Indians are
recognized as a tribe, this Court must do the same. If they are a
tribe of Indians, then, by the Constitution of the United States,
they are placed for certain purposes within the control of the laws
of Congress. This control extends, as we have already shown, to the
subject of regulating the liquor traffic with them. This power
residing in Congress, that body is necessarily supreme in its
In that case, the congressional enactment prohibiting the sale
of liquor to Indian wards, and forbidding its introduction into the
Indian country, was applied to a sale in the State of Michigan to
an Indian who had and exercised the right to vote under the laws of
the state, and other applications of the statute to Indians and
Indian lands in other states are shown in United States v. 43
Gallons of Whiskey, 93 U. S. 188
93 U. S. 197
Dick v. United States, 208 U. S. 340
United States v. Sutton, 215 U. S. 291
Hallowell v. United States, 221 U.
; United States v. Wright, 229 U.
It is said that such legislation cannot be made to embrace
Page 231 U. S. 48
the Pueblos, because they are citizens. As before stated,
whether they are citizens is an open question, and we need not
determine it now, because citizenship is not, in itself, an
obstacle to the exercise by Congress of its power to enact laws for
the benefit and protection of tribal Indians as a dependent people.
Cherokee Nation v. Hitchcock, 187 U.
, 187 U. S. 308
United States v. Rickert, 188 U.
, 188 U. S. 445
United States v. Celestine, 215 U.
, 215 U. S. 290
Hallowell v. United States, 221 U.
It also is said that such legislation cannot be made to include
the lands of the Pueblos, because the Indians have a fee simple
title. It is true that the Indians of each pueblo do have such a
title to all the lands connected therewith, excepting such as are
occupied under Executive orders, but it is a communal title, no
individual owning any separate tract. In other words, the lands are
public lands of the pueblo, and so the situation is essentially the
same as it was with the Five Civilized Tribes, whose lands,
although owned in fee under patents from the United States, were
adjudged subject to the legislation of Congress enacted in the
exercise of the government's guardianship over those tribes and
their affairs. Stephens v. Cherokee Nation, 174 U.
, 174 U. S. 488
Cherokee Nation v. Hitchcock, 187 U.
, 187 U. S. 308
Heckman v. United States, 224 U.
; Gritts v. Fisher, 224 U.
; United States v. Wright, supra.
Considering the reasons which underlie the authority of Congress to
prohibit the introduction of liquor into the Indian country at all,
it seems plain that this authority is sufficiently comprehensive to
enable Congress to apply the prohibition to the lands of the
We are not unmindful that, in United States v. Joseph,
94 U. S. 614
are some observations not in accord with what is here said of these
Indians, but as that case did not turn upon the power of Congress
over them or their property, but upon the interpretation and
purpose of a statute not nearly so comprehensive as the
Page 231 U. S. 49
now before us, and as the observations there made respecting the
Pueblos were evidently based upon statements in the opinion of the
territorial court, then under review, which are at variance with
other recognized sources of information, now available, and with
the long continued action of the legislative and executive
departments, that case cannot be regarded as holding that these
Indians or their lands are beyond the range of congressional power
under the Constitution.
Being a legitimate exercise of that power, the legislation in
question does not encroach upon the police power of the state, or
disturb the principle of equality among the states. United
States v. Holliday, United States v. 43 Gallons of Whiskey, United
States v. Kagama, Hallowell v. United States,
and Ex Parte
The judgment is accordingly reversed, with directions to
overrule the demurrer to the indictment, and to proceed to the
disposition of the case in regular course.
The pertinent portions of the Enabling Act are:
"SEC. 2. That . . . the said convention shall be, and is hereby,
authorized to form a constitution and provide for a state
government for said proposed state, all in the manner and under the
conditions contained in this Act. . . ."
"And said convention shall provide, by an ordinance irrevocable
without the consent of the United States and the people of said
"First. That . . . the sale, barter, or giving of intoxicating
liquors to Indians and the introduction of liquors into Indian
country, which term shall also include all lands now owned or
occupied by the Pueblo Indians of New Mexico, are forever
"Second. That the people inhabiting said proposed state do agree
and declare that they forever disclaim all right and title . . . to
all lands lying within said boundaries, owned or held by any Indian
or Indian tribes, the right or title to which shall have been
acquired through or from the United States or any prior
and that, until the title of such Indian or
Indian tribes shall have been extinguished, the same shall be and
remain subject to the disposition and under the absolute
jurisdiction and control of the Congress of the United States; . .
. but nothing herein, or in the ordinance herein provided for shall
preclude the said state from taxing, as other lands and other
property are taxed, any lands and other property outside of an
Indian reservation, owned or held by any Indian, save and except
such lands as have been granted or acquired as aforesaid, or as may
be granted or confirmed to any Indian or Indians under any act of
Congress; but said ordinance shall provide that all such lands
shall be exempt from taxation by said state so long and to such
extent as Congress has prescribed or may hereafter prescribe."
"* * * *"
"Eighth. That whenever hereafter any of the lands contained
within Indian reservations or allotments in said proposed state
shall be allotted, sold, reserved, or otherwise disposed of, they
shall be subject for a period of twenty-five years after such
allotment, sale, reservation, or other disposal to all the laws
of the United States prohibiting the introduction of liquor into
and 'Indian country' shall include the Pueblo, and 'Indian country'
shall include the Puebto Indians of New Mexico and the lands now
owned or occupied by them.
See, inter alia,
10 Stat. 330, c. 167; 17 Stat. 165, c.
233; 18 Stat. 147, c. 389; 21 Stat. 130, c. 85; 22 Stat. 83, c.
163; 26 Stat. 337, 353, c. 807; 30 Stat. 594, c. 545; 36 Stat. 278,
c. 40; Reports Comr.Indian Affairs 1907, p. 58; 1908, p. 55; 1909,
p. 48; 1 Kappler, 878, 880; Executive Orders relating to Indian
Reservations (1912), 124-127, 129, 130.