United States v. Wright

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 nineteenth day of March, in the year 1912, in the County of Muskogee, in the said

The District Court sustained his demurrer, and the case is brought here under the Criminal Appeals Act.

The statutes involved are: § 2139, Rev. Stat., 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 , 671, 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 Fed. Rep. 673 , and Mosier v. United States, 198 Fed. Rep. 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 Ex parte Webb, was “That the provisions of § 2139, Rev. Stat., as amended by the act of 1892 and the act of 1897, so far qs they related, if at all, to the introduction

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 Ihe demurrer must be sustained.”

The Criminal Appeals Act, March 2, 1907, c. 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 thé 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 , 294; United States v. Keitel, 211 U. S. 370 , 385; United States v. Biggs, 211 U. S. 507 , 518; United States v. Stevenson, 215 U. S. 190 , 195; United States v. Miller, 223 U. S. 599 , 602; United States v. Patten, 226 U. S. 525 , 535; United States v. George, 228 U. S. 14 , 17; United States v. Anderson, 228 U. S. 52 ; United States v. Pacific & Arctic Co., 228 U. S. 87 , 100.

Upon the merits, the principal question is whether the acts of 1892 and of 1897 were repealed, as to intra-state

(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-..

(e) 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 intra-state 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. 729 , 732, as amended by act- of March 15, 1864, c. 33, 13 Stat. 29 . The amendment of 1892 (set forth in 225 U. S. 671 ), extended the prohibition to include ale, beer, and intoxicating liquors of any kind, as well as ardent spirits and wine, and added a clause.

Next in chronological order was the act of March 1, 1895,145, 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 in 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 five hundred dollars 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, &c. 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.

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

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 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.

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, 95 U. S. 204 ; Clairmont v. United States, 225 U. S. 551 , 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.

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 , 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

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. 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

But, because the act of 1895 was impliedly repealed with respect to intra-state 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

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 alloting 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 , 300, 302; Heckman v. United States, 224 U. S. 413 , 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 , 295. Such legislation is of undoubted constitutionality. United States v. Kagama, 118 U. S. 375 , 383. Ex parte Webb, supra. The prohibition against introducing liquor into the Indian country has been consistently adhered

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 Express Company v. Friedman, 191 Fed. Rep. 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 Fed. Rep. 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.