A mere conspiracy, without overt acts done to effect its object,
is not indictable under § 37, Judicial Code, and where the averment
respecting the formation of the conspiracy refers to no other
clause of the indictment for certainty, it must be interpreted as
it stands, and, in the absence of a distinct averment that the
conspiracy was formed to introduce liquors into Indian country
within Oklahoma from without the state, the indictment must be
construed as relating only to intrastate transactions; it cannot be
construed as including interstate transactions because of other
averments as to the overt acts of some of the conspirators.
Where concurrent state and federal control, although not
necessarily exclusive of each other, would be productive of serious
inconvenience
Page 236 U. S. 532
and confusion, this Court may be, as in construing the Act of
March 1, 1895, and the Oklahoma Enabling Act, constrained to hold
that the active exercise of federal authority in suppressing the
introduction of liquor into Indian country under the former was
intended to be suspended pending the exertion of state authority on
the same subject as prescribed by the Enabling Act.
Pending the continuance of state prohibition as prescribed by
the Oklahoma Enabling Act, the provisions of the Act of March l,
1895, c. 145, 28 Stat. 693, respecting intrastate transactions in
regard to introducing intoxicating liquors into that part of the
state which was the Indian Territory are unenforceable although the
statute has not been expressly repealed.
The Oklahoma Enabling Act did not repeal the Acts of 1892 and
1897, prohibiting the introduction of liquor into Indian country
within Oklahoma either as to interstate or intrastate shipments,
Ex Parte Webb, 225 U. S. 63,
and
United States v. Wright, 229 U.
S. 226, and, in this case, the indictment sufficiently
charges a conspiracy to commit an offense against those acts.
213 F. 926 affirmed.
The facts, which involve the construction and application of the
federal statutes relating to the introduction of liquor into Indian
country within the State of Oklahoma, are stated in the
opinion.
Page 236 U. S. 534
MR. JUSTICE PITNEY delivered the opinion of the Court.
In the District Court of the United States for the Southwestern
Division of the Western District of Missouri, the petitioners,
Joplin Mercantile Company and Joseph Filler, with others, were
indicted, under § 37 of the Criminal Code (Act of March 4, 1909, 35
Stat. 1088, 1096, c. 321), formerly § 5440 Rev.Stat., the charge
being that at Joplin, Missouri, within the jurisdiction of the
court, the defendants did unlawfully, feloniously, etc.,
"conspire together to commit an offense against the United
States of America, to-wit, to unlawfully, knowingly, and
feloniously introduce and attempt to introduce malt,
spirituous,
Page 236 U. S. 535
vinous, and other intoxicating liquors into the Indian country
which was formerly the Indian Territory, and now is included in a
portion of the State of Oklahoma, and into the City of Tulsa, Tulsa
County, Oklahoma, which was formerly within and is now a part of
what is known as the Indian country, and into other parts and
portions of that part of Oklahoma which lies within the Indian
country."
Overt acts are alleged, each of which consisted in delivering to
an express company in Joplin certain packages of intoxicating
liquors, to be transported thence to Tulsa, Oklahoma, alleged to be
within the Indian country. A demurrer and a motion to quash having
been overruled, petitioners pleaded to the indictment, were tried
and found guilty. A motion in arrest of judgment having been
denied, they sued out a writ of error from the circuit court of
appeals, where the only question raised was whether the indictment
charged an offense against the laws of the United States, neither
the evidence nor the charge of the trial court being brought up.
The judgment of the district court was affirmed (213 F. 926), and
the present writ of certiorari was applied for, principally upon
the ground that the decision of the court of appeals was to some
extent in conflict with the views expressed by this Court in
Ex
Parte Webb, 225 U. S. 663, and
United States v. Wright, 229 U. S. 226.
That clause of the indictment which sets forth the conspiracy
does not in terms allege, as a part of it, that the liquor was to
be brought from without the State of Oklahoma, nor does this clause
refer, for light upon its meaning, to the clauses that set forth
the overt acts. Hence, we do not think the latter clauses can be
resorted to in aid of the averments of the former. It is true, as
held in
Hyde v. Shine, 199 U. S. 62,
199 U. S. 76,
and
Hyde v. United States, 225 U.
S. 347,
225 U. S. 359,
that a mere conspiracy, without overt act done to effect its
object, is not punishable criminally under § 37 of the Criminal
Code. But the averment
Page 236 U. S. 536
of the making of the unlawful agreement relates to the acts of
all the accused, while overt acts may be done by one or more less
than the entire number, and, although essential to the completion
of the crime, are still in a sense something apart from the mere
conspiracy, being "an act to effect the object of the conspiracy."
For this reason, among others, it seems to us that where, as here,
the averment respecting the formation of the conspiracy refers to
no other clause for certainty as to its meaning, it should be
interpreted as it stands.
United States v. Britton,
108 U. S. 199,
108 U. S. 205.
We therefore think the court of appeals properly treated this
indictment as not charging that the liquors were to be introduced
from another state, and correctly assumed in favor of the accused
(supposing the law makes a distinction) that the design attributed
to them looked only to intrastate commerce in intoxicants. The
suggestion of the government that the omission of a distinct
averment that the conspiracy was to introduce the liquors from
without the state did not prejudice petitioners, and should be
regarded after verdict as a defect in form, to be ignored under §
1025, Rev.Stat., cannot be accepted, since we have before us only
the strict record, and therefore cannot say that the trial
proceeded upon a different theory from that indicated by the
indictment, or that its averments were supplemented by the
proofs.
The offense against the laws of the United States that was the
object of the conspiracy must have had reference to one or the
other of two distinct prohibitions. The one is that arising from
the Act of July 23, 1892, 27 Stat. 260, c. 234, amending § 2139,
Rev.Stat., and amended in its turn by the Act of January 30, 1897
(29 Stat. 506, c. 109). The other is § 8 of the Act of March 1,
1895, 28 Stat. 693, c. 145. These are set forth in chronological
order in
225 U. S. 225
U.S. 671. The distinction now pertinent is that under the Act of
1897:
"Any person who shall introduce
Page 236 U. S. 537
or attempt to introduce any malt, spirituous, or vinous liquor .
. . 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,"
etc., while the Act of 1895 declares:
"That any person, . . . who shall, in said [Indian] Territory,
manufacture . . . any vinous, malt, or fermented liquors or any
other intoxicating drinks . . . or who shall carry, or in any
manner have carried,
into said Territory, any such liquors
or drinks . . . shall, upon conviction thereof, be punished,"
etc. The former has to do with the introduction of liquor into
the "Indian country;" the latter relates not to the Indian country
as such, but to the Indian Territory as a whole, irrespective of
whether it, or any particular part of it, remained "Indian
country."
In
Ex Parte Webb, supra, we dealt with the effect of
the Oklahoma Enabling Act, and the admission of the state
thereunder, upon the prohibitions contained in the Act of 1895, and
held that this act remained in force so far as it prohibited the
carrying of liquor from without the new state into that part of it
which was formerly the Indian Territory. In
United States v.
Wright, supra, we held that the prohibition against the
introduction of intoxicating liquors into the Indian country found
in the Act of 1897 was not repealed with respect to intrastate
transactions by the enabling act and the admission of the state. In
the present case, the court of appeals held that transportation of
intoxicating liquors from the westerly portion of Oklahoma to that
part which was formerly Indian Territory was prohibited not only by
the Act of 1897, but by the Act of 1895, holding that this act
remained unrepealed as to intrastate commerce in intoxicating
liquors notwithstanding the intimations of
Page 236 U. S. 538
this court to the contrary in the
Webb and
Wright cases. In behalf of the government, it is now
insisted that the indictment is clearly sustainable under the Act
of 1897, and that it is therefore unnecessary to pass upon the
question raised about the Act of 1895. But, in view of its
importance and the confusion that would probably result if the
matter were left in uncertainty, we deemed it proper to allow the
writ of certiorari, and now deem it proper to pass upon the merits
of the question with respect to both Acts.
The court of appeals correctly considered that the question
whether the Act of 1895 remains in force respecting intrastate
transactions was not concluded by our decision in either the
Webb or the
Wright cases. The declaration upon
the subject in 225 U.S. at p.
225 U. S. 681
was based upon a concession by the government, and was stated in
unqualified form in order to emphasize that the concession was
fully accepted for the purposes of the decision. In the
Wright case, 229 U.S. at p.
229 U. S. 236,
we saw no reason to recall it, and so stated; but, here again, the
point was not involved in the question to be decided. It was
accepted
arguendo, rather as an obstacle in the way of
reaching the conclusion that the Court did reach, upon grounds that
held good, as we thought, notwithstanding the point conceded. As
was well said by Mr. Chief Justice Marshall in one of his great
opinions,
Cohen v.
Virginia, 6 Wheat. 264,
19 U. S.
399:
"It is a maxim not to be disregarded that general expressions,
in every opinion, are to be taken in connection with the case in
which those expressions are used. If they go beyond the case, they
may be respected, but ought not to control the judgment in a
subsequent suit when the very point is presented for decision."
And if this be true with respect to mere
dicta, it is
no less true of concessions made for the purpose of narrowing the
range of discussion or of testing, by assumed obstacles, the
validity of the reasoning by which
Page 236 U. S. 539
the Court reaches its conclusions upon the point submitted for
decision.
The court of appeals declared that the effect of holding that
the enabling Act and the admission of the state repealed the law of
1895 as to importations from parts of Oklahoma not in Indian
Territory would be that importations would remain prohibited from
the north, south, and east of the territory, while those from the
west would be turned over to the state, and that the provision of
the enabling Act requiring the Constitution of the new state to
provide a scheme of liquor prohibition is of no validity if
Oklahoma sees fit to repeal the prohibition, as it is said she is
at liberty to do, being equal in power with the original states,
and entitled to set aside all restrictions placed upon her that are
not obligatory under the Constitution. Citing
Coyle v.
Smith, 221 U. S. 559. As
indicating that the act was passed in part as an exertion of the
power of guardianship over the Indians and in part under the power
to regulate commerce with them, the Court pointed to the pledges of
the federal government, contained in repeated treaties, to protect
the Indians of the Civilized Tribes against the evils of
intercourse with people of the white race, especially with respect
to the sale of intoxicating liquors; emphasizing the fact that
Indian Territory contains the largest body of Indian population in
the United States, from which the inference was drawn that Congress
could not turn them over to the protection of the local authorities
without running counter to the uniform practice of the federal
government in such matters; that § 1 of the Enabling Act expressly
reserves full authority to the national government for the
protection of the Indians and their property, and that protection
against the liquor traffic has always been their greatest need, and
that numerous statutes, passed about the time Oklahoma was
admitted, to protect the Indians against the evils of intoxicating
liquor, showed that Congress
Page 236 U. S. 540
intended to exercise this protection itself, and not to remit it
to the state. The conclusion was reached that the liquor
prohibition imposed upon the state by § 3 of the enabling Act
(quoted at large, 225 U.S.
225 U. S. 677) was intended to secure the cooperation of
the state authorities, and not to remit to the state the whole
subject of the guardianship of the Indians so far as approach to
them from the west was concerned. That since, even after admission
of the state, there was nothing to prevent Congress from
prohibiting importation of liquors into the Indian Territory,
peopled, as it was, so largely by Indians, there was no reason to
believe that the admission of the state was intended to repeal the
1895 law with respect to the western boundary of the Indian
Territory; that, under the circumstance of that territory, the Acts
of 1892 and 1897 were inefficient for the protection of the Indians
in this regard, while, with the Act of 1895 alone in force,
prohibiting the carrying of liquor within the Indian Territory, it
would not be unlawful to transport liquor from a point within that
territory to an allotment therein; hence the necessity of
maintaining in force at the same time the provisions of the Acts of
1892 and 1897 prohibiting the introduction of liquor into the
Indian country.
The argument has much weight. This Court, when deciding the
Webb and
Wright cases, fully appreciated the
force of the considerations referred to, as will be manifest, we
think, by reference to the opinions, especially that delivered in
the former case. But it seems to us that the views expressed by the
court below in the present case merely question the reasonableness
of implying a repeal of the Act of 1895, and hardly attribute full
force to the very clear language of the enabling Act. Upon the
question of reasonableness, the fact that importations of liquor
into the territory from the north, east, and south should remain
subject to the interdict of the federal law, while importations
from the west (unless originating
Page 236 U. S. 541
without the state) were remitted to state control, is not an
anomalous result, but one rather characteristic of the interaction
of our federal and state governments.
We pass on to state, in outline, the grounds upon which the
judgment is assailed by counsel for petitioners, and in a separate
argument by friends of the Court. It is insisted that the provision
of the Enabling Act requiring the state to forbid, under penalties,
the introduction of intoxicating liquors from other parts of the
state into the former Indian Territory can be upheld only by
construing it as repealing the provisions of the Act of 1895 so far
as they deal with such intrastate transactions, because otherwise
the Enabling Act would be repugnant to the commerce clause of the
Constitution of the United States as an attempt to authorize
concurrent regulation by state and federal authority of commerce
with the Indians, which, it is said, must be exclusively regulated
either by state or by nation; that the Enabling Act may be
reasonably construed as relinquishing to the state the exclusive
control over commerce in intoxicating liquors between other parts
of the state and the former Indian Territory, but not as a
regulation of commerce with Indians, because, it is insisted, under
the Constitution, Congress cannot delegate to a state the power to
regulate commerce with the Indians any more than the power to
regulate interstate commerce, and hence the prohibition clause of
the Enabling Act is to be sustained as a surrender to the state of
jurisdiction over its own citizens, thereby declared by Congress to
be no longer members of Indian tribes so far as commerce in
intoxicating liquors is concerned, the Enabling Act being thus
treated as in effect a determination by Congress that the tribal
relations and guardianship of the Indians should cease, at least as
to traffic in liquor between them and the citizens of other
portions of the state, leaving the state to regulate this by means
of the legislation that the Enabling Act required
Page 236 U. S. 542
it to enact on the subject. It is next argued that, the Act of
1895 having been superseded as to intrastate transactions by the
Enabling Act, it is beyond the power of Congress to continue it in
force as to interstate transactions, and this for two reasons, both
based upon the provision of § 9 of Article I of the Constitution,
that "no preference shall be given by any regulation of commerce of
revenue to the ports of one state over those of another:" (a) that
the prohibition cannot be maintained as an exercise of the power to
regulate interstate commerce, because in that aspect it
discriminates against the State of Oklahoma by forbidding
transportation of liquor into that state from without, while
permitting the unrestricted transportation of liquor into the other
states, and (b) that it cannot be sustained as an exercise of the
power of Congress to regulate commerce with the Indian tribes
because it gives a
preference to the State of Oklahoma by
permitting that state to regulate for itself the commerce in
intoxicating liquors between the people of other parts of the state
and the former Indian Territory, while denying to the people of all
the other states the right to engage in such commerce with the same
territory. The result sought to be deduced is that, by reason of
the passage of the Enabling Act and the admission of the state
thereunder, the Act of 1895 cannot be sustained at all. It is said
this does not impute to Congress the purpose to pass an act in
excess of its powers under the Constitution; that the act, when
passed, was justified not only as a regulation of commerce with the
Indian tribes, but as an exercise of jurisdiction over territory
then within the exclusive jurisdiction of the United States, and
that it is now unconstitutional as to interstate transactions not
because of the want of power in Congress to originally pass it, but
because of the changed conditions growing out of the admission of
the state under an Enabling Act inconsistent with the continuance
in force of the Act of
Page 236 U. S. 543
1895. And it is said that this question is not foreclosed by the
decision in the
Webb case sustaining the act as to
interstate transactions, because -- and this is true -- the
question under § 9 of Article I of the Constitution was not then
raised. Citing
Boyd v. Alabama, 94 U. S.
645,
94 U. S.
648.
The reasoning, like the opposed reasoning of the court below,
has force, but we think it has also elements of weakness. Thus, to
mention only one or two of these, it is not easy to see how any
practical preference is given to the State of Oklahoma in the way
of permitting commerce in intoxicating liquors to be conducted
between other portions of the state and the former Indian Territory
while denied to the people of other states when the very clause of
the Enabling Act that operates, if any does, to destroy the former
universality of the Act of 1895 does not permit, but prohibits,
commerce in liquors between the one part of the state and the
other, the only difference here important being that, as to
internal commerce, the state enforces the prohibition, while as to
interstate commerce, it is enforced by the United States. Nor is
the suggestion convincing that the Act of 1895 (if repealed as to
intrastate commerce only) remains as a discriminatory regulation of
commerce between the states unfavorable to Oklahoma, for in this
aspect it forbids not the introduction of liquors from other states
into Oklahoma, but only their introduction into that particular
part of it which, because of the larger population of Indians that
it contains and because of the previous treaties and the other
circumstances pointed out in the
Webb case, Congress
deemed to be properly entitled to that protection. Moreover,
supposing that unconstitutional preferences must be deemed to arise
from a partial repeal of the Act of 1895 by the prohibitory
provision of the Enabling Act, it would, we think, be more logical
to avoid the constitutional difficulties by giving less force to
that provision of the Enabling Act than by giving to it a force
quite beyond
Page 236 U. S. 544
the expressed purpose of Congress. The result would be, if the
argument of petitioners as to the impossibility of concurrent
regulation of intrastate transactions in liquors with the former
Indian Territory by state and nation is sound, that the state
prohibition of the liquor traffic in the territory and between the
other parts of the state and the territory would have to remain in
abeyance until Congress should expressly repeal the Act of
1895.
Enough has been said to show the principal grounds of respective
contentions. And it is curious to observe that, on each side, the
argument rests largely upon the supposition that the implied repeal
of the Act of 1895, if deduced from the inconsistent provisions of
the Enabling Act upon the same subject, operated in effect to
legalize commerce in intoxicating liquors between the eastern and
the western portions of the state. But since the principal
inconsistency is that in one case the prohibition of the traffic is
to be enforced by the United States, and in the other case by the
state, many of the difficulties disappear as soon as clearly
stated. We need not further analyze the constitutional argument
submitted in behalf of petitioners, and must not be understood as
committed respecting it.
Conceding that the question with which we have to deal is by no
means easy of solution, we think a right solution may be had by
considering the terms of the Enabling Act in the light of the
situation that was presented to Congress, and in view of its
constitutional powers. The situation of the Indians and the Indian
lands at the time is so familiar that it need not be here
rehearsed. In addition to what has been said upon the subject in
our recent decisions, reference may be made to the Committee Report
that accompanied the bill in the House of Representatives (H.R.
Report No. 496, January 23, 1906, 59th Cong. 1st Sess. Vol. 1).
There was a large population of Indians in the Indian Territory,
but a much larger
Page 236 U. S. 545
population of whites. Under the provisions of the Curtis Act
(June 28, 1898, 30 Stat. 495, c. 517), towns had been organized and
were growing rapidly, and much of the land had been allotted.
Congress no doubt had in mind the existing agreements with the Five
Civilized Tribes, some of them recently made, by which, in one form
or another, the United States had agreed to maintain laws against
the introduction, sale, etc., of liquors within the territory of
the tribes (225 U.S.
225 U. S.
684-686). In the first section of the Enabling Act, a
reservation was made of the authority 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."
The authority of Congress to preserve in force existing laws or
enact new ones after statehood, with reference to traffic or
intercourse with the Indians, including the liquor traffic, was
well established, the power of Congress over such commerce being
plenary, and independent of state boundaries.
United
States v. Holliday, 3 Wall. 407,
70 U. S. 418;
United States v. Forty-Three Gallons of Whiskey,
93 U. S. 188,
93 U. S.
195-197, s.c.
108 U. S. 108 U.S.
491;
United States v. Kagama, 118 U.
S. 375,
118 U. S. 383;
Dick v. United States, 208 U. S. 340,
208 U. S. 353;
Hallowell v. United States, 221 U.
S. 317,
221 U. S. 323;
Ex Parte Webb, 225 U. S. 663,
225 U. S. 683;
United States v. Wright, 229 U. S. 226,
229 U. S. 237;
Perring v. United States, 232 U.
S. 478,
232 U. S. 483;
Johnson v. Gearlds, 234 U. S. 422,
234 U. S.
438.
Still, the territory was to be erected into a state, and the
Indians themselves were to have the rights of citizens. As we have
already held in the
Wright case,
supra, it was
the purpose to maintain in full force the Acts of 1892 and 1897 the
same in this state as in other states where Indian country or
Indian allotments held in trust by the government, or Indians, as
wards of the government, were
Page 236 U. S. 546
found. And while we intimate no question that Congress could
have maintained the more sweeping internal prohibition of the 1895
Act, this would have interfered to a greater extent with the
control of the new state over its internal police.
Reading the Enabling Act as a whole in the light of this
situation, including the declaration in its first section of the
continued authority of the government of the United States
respecting the Indians, the specific requirement in the third
section that the state constitution should contain a stringent
prohibition of the manufacture, sale, etc., of intoxicating liquors
within the Indian Territory and the Reservations for a period of
twenty-one years from the date of admission, and thereafter until
amendment of the Constitution, and the express provision that any
person who should manufacture, etc., or should ship or convey, such
liquors from other parts of the state into the Indian Territory or
Reservations should be punished both by fine and imprisonment, we
think the inference is irresistible that it was the purpose of
Congress that the people of the state should be entrusted with
actual power and control over the liquor traffic between the other
portions of the state and the territory and reservations, and that,
for the time at least, they should have the same control that is
enjoyed by other states, it being, of course, subject to the effect
of the Acts of 1892 and 1897.
Without deciding that such control must necessarily be exclusive
of coexisting federal jurisdiction over the same subject matter, it
seems to us that concurrent jurisdiction would be productive of
such serious inconvenience and confusion, that, in the absence of
an express declaration of a purpose to preserve it, we are
constrained to hold that the active exercise of the federal
authority was intended to be at least suspended pending the
exertion by the state of its authority in the manner prescribed by
the Enabling Act.
Page 236 U. S. 547
Still, the Act of 1895 was not expressly repealed, and it must
have been in contemplation that the state might amend its
Constitution and laws upon the subject at least, upon the
expiration of twenty-one years, and we do not intend to hold, nor
even to intimate, that the effect and operation of the Act of 1895
upon intrastate commerce in liquors would still remain in abeyance
after a repeal or material modification of the state prohibition
upon the subject. The subject matter of this legislation is quite
different from that which was under consideration in
Coyle v.
Smith, 221 U. S. 559, and
it does not follow from what was there decided that the plan of
intrastate prohibition proposed to the state by Congress in the
Enabling Act, and accepted by the state, would be subject to repeal
by the state within the prescribed period. Nor does it follow from
anything we have said that Congress may not, during that period, by
reenacting in substance the Act of 1895, or by appropriate
affirmative legislation in some other form, resume the federal
control over the liquor traffic in and with what was Indian
Territory by virtue of its general authority over Indian relations.
These and kindred questions may be dealt with if and when occasion
arises.
Our opinion upon this branch of the case is that, pending the
continuance of state prohibition as prescribed by the Enabling Act,
the provisions of the Act of 1895 respecting intrastate
transactions are not enforceable.
But, as already held in
United States v. Wright, supra,
the Acts of 1892 and 1897 have not been repealed by the Enabling
Act with respect to intrastate commerce in intoxicants, any more
than with respect to commerce that crosses state lines. And it
remains to be considered whether the indictment sufficiently sets
forth a conspiracy to commit an offense against these Acts. This
turns upon the destination of the liquors as intended by the
conspirators. It is averred that three several destinations
Page 236 U. S. 548
were in contemplation: (a) the Indian country, which was
formerly the Indian Territory, and now is included in a portion of
the State of Oklahoma; (b) the City of Tulsa, Tulsa County,
Oklahoma, which was formerly within and is now a part of what is
known as the Indian country, and (c) other parts and portions of
that part of Oklahoma which lies within the Indian country. It is
said by petitioners that Tulsa was established as a town under the
Curtis Act of June 28, 1898, and the Creek Agreement (Act of March
1, 1901, 31 Stat. 861, c. 676), and that we ought to take judicial
notice of what is said to appear upon the records of the Department
of the Interior, that, on February 21, 1901, the exterior limits of
the town were approved and the tract thus reserved from allotment,
and set aside for town-site purposes; that unrestricted patents
have since been issued, and that, at the time of the alleged
offense, Tulsa was a city of 30,000 people. For the sake of
simplicity, we assume the facts to be so, without deciding that we
may take judicial notice of them. But we think the third clause
"other parts and portions of that part of Oklahoma which lies
within the Indian country" is sufficient to sustain the indictment
in this respect. It is objected by petitioners that this is vague
and indefinite, and does not apprise the defendants with certainty
of the offense with which they stand charged so as to enable them
to prepare the defense; that there were more than 100,000
allotments made to Indians of the Five Civilized Tribes alone, and
that the courts should take judicial notice of the fact that the
restrictions upon three-fourths of the allotments of mixed bloods
have been removed by direct legislation of Congress, not to speak
of the lands taken out of Indian country by being included within
established town sites. But upon this record we are bound to assume
that the indictment sets forth the agreement as it was made by the
convicted defendants. That agreement looked to the introduction of
intoxicating
Page 236 U. S. 549
liquors into those portions of the state that lie within the
Indian country. Presumably the defendants did not at the time of
conspiring, specify the particular points in the Indian country to
which the liquor should be shipped; nevertheless, the conspiracy
could not be carried out as made without violating the Act of
1897.
The indictment is therefore sufficient, and the judgment should
be affirmed.
Judgment affirmed.
MR. JUSTICE McREYNOLDS took no part in the consideration or
decision of this case.