United States v. Holliday
70 U.S. 407 (1865)

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U.S. Supreme Court

United States v. Holliday, 70 U.S. 3 Wall. 407 407 (1865)

United States v. Holliday

70 U.S. (3 Wall.) 407


1. The 12th section of the Judiciary Act of 1789, which gives to the circuit courts concurrent jurisdiction of all crimes and offenses cognizable in the district courts, is prospective, and embraces all offenses the jurisdiction of which is vested in the district courts by subsequent statutes.

2. Therefore the circuit courts have jurisdiction of the offense of selling ardent spirits to an Indian, under the Act of February 12, 1862, although by that act the jurisdiction is vested only in the district court.

3. By that act Congress intended to make it penal to sell spirituous liquor to an Indian under charge of an Indian agent, although it was sold outside of any Indian reservation and within the limits of a state.

4. The act aforesaid is constitutional, and is based upon the power of Congress to regulate commerce with the Indian tribes.

5. This power extends to the regulation of commerce with the Indian tribes and with the individual members of such tribes, though the traffic and the Indian with whom it is carried on are wholly within the territorial limits of a state.

6. Whether any particular class of Indians are still to be regarded as a tribe or have ceased to hold the tribal relation is primarily a question for the political departments of the government, and if they have decided it, this Court will follow their lead.

7. No state can by either its constitution or other legislation withdraw the Indians within its limits from the operation o� the laws of Congress regulating trade with them, notwithstanding any rights it may confer on such Indians as electors or citizens.

These were indictments, independent of each other, for violations of the Act of Congress of February 13, 1862, [Footnote 1]

Page 70 U. S. 408

which declares that if any person shall sell any spirituous liquors "to any Indian under the charge of any Indian superintendent or Indian agent appointed by the United States, he shall, on conviction thereof before the proper district court of the United States," be fined and imprisoned.

This act of 1862 was amendatory of an Act of June 30, 1834, [Footnote 2] declaring that if any person sold liquor to an Indian in the Indian country, he should forfeit five hundred dollars.

These indictments were both in district courts of the United States -- the one against Haas in the district court for Minnesota (there not being at the time of the indictment any circuit court as yet established in Minnesota) and that against Holliday in the district court for Michigan -- and under the Act of August 8, 1846, [Footnote 3] authorizing the remission of indictments from the district to the circuit courts, they were both removed into the circuit courts; the case of Haas, after he had been convicted of the offense charged and while a motion in arrest of judgment was pending and undetermined in the district court.



The indictment charged that the defendant had sold the liquor to a Winnebago Indian in the State of Minnesota under the charge of an Indian agent of the United States, but it did not allege that the locus in quo was within the reservation belonging to the Winnebago tribe or within any Indian reservation or within the Indian country.

Upon this indictment the judges of the circuit court were divided in opinion on the questions:

1. Whether, under the act of February 13, 1862, the offense for which the defendant is indicted was one of which the circuit court could have original jurisdiction.

2. Whether, under the facts above stated, any court of the United States had jurisdiction of the offense.

Page 70 U. S. 409



The indictment charged the defendant with selling liquor, in Gratiot County, Michigan, to one Otibsko, an Indian under the charge of an Indian agent appointed by the United States.

The plea alleged that Gratiot County was an organized county of the State of Michigan; that it was not within the Indian country; that no Indian reservation existed within it; that Otibsko was one of the Chippewa Indians mentioned in certain treaties which were referred to; that Otibsko accepted lands in Michigan and entered into possession of them under a certificate from the United States; that the tribal organization of the said Chippewa Indians was dissolved by one of the treaties except insofar as it was necessary to preserve it for the purposes of the same; and that Otibsko had voted at elections for county and town officers.

The plea set forth also certain provisions of the constitution and laws of Michigan which confer political rights upon civilized male inhabitants of Indian descent, natives of the United States and not members of any tribes, and also judicial rights and privileges upon all Indians.

The government, by replication admitting the truth of the matters contained in the plea, alleged that, pursuant to the existing treaties with the said Chippewas, and the regulations and practice of the Interior Department and Indian Bureau, the chiefs and head men of the said Chippewas continued to be the representatives of the tribe; that the Indian agent for Michigan was required to deal with the said chiefs and head men of the said Chippewas as such, and to take the receipts of such chiefs and head men for money and property delivered to the said Chippewas under the provisions of the treaties.

And alleged further that the said Otibsko recognized and acknowledged the chiefs and head men of the Chippewas of Saginaw, and resided with the said Indians on the lands in Isabella County, selected by them under the treaty of 1855, and that the Indian agent of the United States annually

Page 70 U. S. 410

distributed a sum of money and treaty property for the benefit of the said Otibsko.

On this state of facts, the circuit court was divided on the following points:

1. Whether the Act of Congress of February, 1862, does by proper construction extend to a sale of liquor, such as is charged in the indictment, under the circumstances stated in the plea and replication?

2. Whether, if construed to so extend, Congress has the constitutional right to so enact?

3. Whether, under the circumstances stated in the plea and replication, the Indian named can be considered as under the charge of an Indian agent within the meaning of the act?

4. Whether, upon the facts stated in the plea and replication, the said Otibsko was a civilized Indian, not a member of any tribe within the meaning of the Constitution of Michigan, and whether he was a citizen of the State of Michigan?

5. Whether the provisions of the Constitution and laws of the State of Michigan, stated in the plea of the defendant, were, under all the facts and circumstances stated in said plea and replication, and, under the constitution, the said treaties and act of Congress of 1862, a bar to said indictment?

The record in this case showed that the Secretary of the Interior and the Commissioner of Indian Affairs had decided that it was necessary, in order to carry into effect the provisions of the treaty referred to and set up by Holliday, that the tribal organization should be preserved.

In both cases the questions were now, by certificate of division, here.

Page 70 U. S. 413

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