1. Revised Statutes, 2078, declaring that
"No person employed in Indian affair shall have any interest or
concern in any trade with the Indians except for and on account of,
the United States,"
and subjecting the offender to a pecuniary penalty and removal
from office, includes transactions with tribal Indians involving
land or other property in respect of which the government has no
interest or control. P.
256 U. S.
526.
2. This section defines an offense against the United States
within the meaning of Crim.Code § 37, whether it be itself
punishable through a criminal prosecution or only through civil
action for the penalty. P.
256 U. S. 528.
Reversed.
The case is stated in the opinion.
Page 256 U. S. 525
MR. JUSTICE PITNEY delivered the opinion of the Court.
This writ of error was brought under the Criminal Appeals Act of
March 2, 1907, c. 2564, 34 Stat. 1246, to review a judgment of the
district court sustaining demurrers to an indictment under § 37,
Criminal Code, charging a conspiracy to violate § 2078 Rev.Stats.,
and overt acts done to effect the object of the conspiracy.
Section 37 prescribes:
"If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States in any
manner or for any purpose, and one or more of such parties do any
act to effect the object of the conspiracy, each of the parties to
such conspiracy shall be fined,"
etc.
Section 2078, Rev.Stats., reads thus:
"No person employed in Indian affairs shall have any interest or
concern in any trade with the Indians except for and on account of
the United States, and any person offending herein shall be liable
to a penalty of five thousand dollars, and shall be removed from
his office."
The indictment alleges that A. Z. Hutto was a duly appointed and
qualified Indian farmer for the Tonkawa Tribe of Indians, Ponca
Reservation, Oklahoma, acting as such, and that, under an act of
Congress and the rules and regulations promulgated by the Secretary
of the Interior, it was his duty to superintend and direct farming
and stock raising among said Tonkawa Tribe, to supervise the
leasing of Indian lands, and to appraise their value for sale; that
Hutto, J. R. White, Ray See, and J. R.
Page 256 U. S. 526
Ricks feloniously conspired together that Hutto, while so
employed in Indian affairs, should have an interest and concern in
certain trades with the Indians not for or on account of the United
States, in violation of § 2078, Rev.Stats. -- that is to say that
Hutto, while so employed, should have an interest and concern in
sales of land by Indians of said tribe and in the purchase of
automobiles and other commodities by said Indians, and that the
alleged conspirators would and should persuade, induce, procure,
and cause certain Indians named, members of said Tonkawa Tribe, to
sell their lands, purchase automobiles and other commodities,
borrow money and lend money, and that said Hutto should have an
interest and profit in said sales, purchases, and loans. The
alleged overt acts need not be recited.
Defendants having filed separate demurrers, the district court
at first sustained them upon the ground that the acts prohibited in
§ 2078 Rev.Stats. are not a crime against the United States, but
acts for which a penalty is provided, to be collected only by a
civil action, and hence cannot form the basis of a criminal
conspiracy in violation of § 37 Criminal Code.
Upon a rehearing, the demurrers again were sustained, but upon
the ground that § 2078 is inapplicable to transactions involving
lands or other property with respect to which the government has no
interest or control, and that no such interest or control was
alleged in the indictment.
Taking up the second point first: it seems to us the plain terms
of § 2078 leave little room for discussion over the proposition
that the prohibition is not confined to transactions involving
lands or other property in respect to which the government has an
interest or control.
In early days, under the power conferred upon Congress by the
Constitution (Art. I, § 8, cl. 3) to regulate commerce with the
Indian Tribes, some traffic was carried
Page 256 U. S. 527
on with the Indians upon the government account. As early as the
year 1796 (c. 13, 1 Stat. 452), the President was authorized to
establish Indian trading posts on the frontiers and in the Indian
country, and the agent appointed for each trading house was
required to swear or affirm in his oath of office that he would not
directly or indirectly be concerned or interested in any trade,
commerce, or barter with any Indian or Indians but on the public
account. This was a temporary measure, to continue for two years
and to the end of the next session of Congress thereafter. Another
act, to continue for three years, was approved April 21, 1806 (c.
48, 2 Stat. 402), which required of the superintendent of Indian
trade an oath or affirmation faithfully to execute the trust
committed to him, and that he would not directly or indirectly be
concerned or interested in any trade, commerce, or barter but on
the public account. A like oath was required of the agent appointed
for each trading house. Still a third act for establishing trading
houses with Indian tribes, approved March 2, 1811 (c. 30, 2 Stat.
652), required a similar form of oath from the Superintendent of
Indian trade and from each agent and assistant agent. This act,
like the others, was limited to a brief duration.
Section 2078 Rev.Stats. was taken with but slight change from §
14 of an act of June 30, 1834 (c. 162, 4 Stat. 735, 738), entitled
"An act to provide for the organization of the department of Indian
affairs," and designed not for the carrying on of trade or barter
with the Indians on government account, but to carry out treaty
obligations, pay annuities, and distribute merchandise to the
Indians as stipulated, furnish them with domestic animals,
implements of husbandry, and rations as the President might think
proper, provide interpreters, blacksmiths, farmers, mechanics, and
teachers, as required by treaty, and generally to promote friendly
relations with
Page 256 U. S. 528
the Indians and advance their welfare. In this connection, the
provision of § 14
"that no person employed in the Indian department shall have any
interest or concern in any trade with the Indians except for and on
account of the United States"
manifestly had a significance extending quite beyond any
pecuniary interest of the United States in government trade or
barter with the Indians. In its original setting, and more
emphatically when grouped in the Revised Statutes with other
provisions having to do with the supervision and management of the
affairs of the Indians, it manifestly was and is designed to insure
integrity of conduct on the part of all persons employed in Indian
affairs and an impartial attitude towards the Indians by excluding
from persons so employed all motives of personal gain, so that the
duty of the United States as trustee for these dependent peoples,
recognized wards of the government, might be performed with a
single regard for their interests appropriate to the fiduciary
relation. The purpose was to protect the Indians from their own
improvidence, relieve them from temptations due to possible
cupidity on the part of persons coming into contact with them as
representatives of the United States, and thus to maintain the
honor and credit of the United States, rather than to subserve its
pecuniary interest.
The district court erred in its construction of § 2078.
Nor can we sustain the other ground upon which it is contended
the demurrers were well taken. Section 37, Criminal Code, is
violated by a conspiracy "to commit any offense against the United
States," accompanied or followed by an overt act done to effect the
object of the conspiracy. It does not, in terms, require that the
contemplated offense shall of itself be a criminal offense, nor
does the nature of the subject matter require this construction. A
combination of two or more persons by concerted action to
accomplish a purpose either criminal
Page 256 U. S. 529
or otherwise unlawful comes within the accepted definition of
conspiracy.
Pettibone v. United States, 148 U.
S. 197,
148 U. S. 203.
The distinction between a conspiracy and the contemplated offense
that forms its object has often been pointed out.
United States
v. Rabinowich, 238 U. S. 78,
238 U. S. 85-86,
and cases cited. And we deem it clear that a conspiracy to commit
any offense which by act of Congress is prohibited in the interest
of the public policy of the United States, although not of itself
made punishable by criminal prosecution, but only by suit for
penalty, is a conspiracy to commit an "offense against the United
States" within the meaning of § 37, Criminal Code, and, provided
there be the necessary overt act or acts, is punishable under the
terms of that section.
We have assumed for the sake of the argument that, under § 2078
Rev.Stats., the United States is confined to the suit for penalty
specifically mentioned, but we do not so decide, and, in our view,
the present case does not require an expression of opinion upon on
that subject.
See United States v. Stevenson, 215 U.
S. 190,
215 U. S. 197
et seq.
Judgment reversed, and the cause remanded for further
proceedings in conformity with this opinion.