Johnson v. Gearlds

after making the foregoing statement, delivered the opinion of the court.

This direct appeal is taken under § 238, Jud. Code (act of March 3, 1911, c. 231, 36 Stat. 1087,1157 ), which allows such an appeal (inter alia) “in any case that involves the construction or application of the Constitution of the United States; in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in question.” Our jurisdiction is invoked upon three grounds: (a) that the construction or validity of Article VII of the Treaty of 1855 is drawn in question; (b) that the construction or application of the Constitution is

The bill, either in its original or its amended form, did not expressly assert as a ground for relief that the treaty of 1855 had been repealed, in whole or in part, by the admission of the State. On the contrary, relief was prayed upon the ground that the second clause of Article VII (that which related to the liquor traffic and was to remain in force until otherwise provided by Congress) applied only to the ceded territory, and not to the reservations set apart within that territory; that by the Treaty of 1865 those reservations were ceded to the United States, and ceased to be Indian country in any sense; and that by the subsequent cession in the Treaty of 1867 the reservation of 1865 in turn was vested in the United States,-and therefore ceased to be Indian cotmtry; and, finally, that Article VII of the treaty of 1855 had expired at the time of

Upon the merits, we may well begin with the disputed portion of the Treaty of 1855

“Article' VII. The laws which have been or may be enacted by Congress, regulating trade and intercourse with the Indian tribes, to continue and be in force within and upon the several reservations provided for herein; and those portions of said laws which prohibit the introduction, manufacture, use of, and traffic in, ardent spirits, wines, or other liquors, in the Indian country, shall continue and be in force, within the entire boundaries of the country herein ceded to the United States, until otherwise provided by Congress.”

The reference to previous laws clearly points to the act of June 30, 1834, entitled “An Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers” (c. 161, 4 Stat. 729 ), and kindred acts. The act of 1834 was a revision of previous' enactments, and contains many provisions for the regulation of trade and intercourse. Its twentieth and twenty-first sections. .( 4 Stat. 732 ) prohibit the introduction or manufacture of, or traffic in, spirituous liquor or wine within the Indian country. From them, §§ 2139, 2140, and 2141, Rev. Stat., were derived.

By the first section of the act of 1834, the term “Indian

The fundamental contention that underlies the entire argument for complainants is that the first part of Article VII had for its object that the laws of Congress, present and future, regulating trade and intercourse with the Indian tribes, were to continue and be in force within the reservations created by the treaty; while the latter portion of the Article had for its object to keep in force in the ceded country — which, it is said, excludes the reservations — those portions of the laws that prohibited the introduction, manufacture, use of, and traffic in ardent spirits, etc., in the Indian country until otherwise provided by Congress; the particular insistence being that the latter clause applies merely to the so-called ceded territory, and not to the lands included within the reservations.

With this construction of the treaty we cannot agree. We think it rests upon a misconception of the fair import of .the terms employed in Article VII, whether considered .aloné or together with the context, and fails to give due effect to the' reason and spirit of the stipulation.

It seems to us that in the qualifying clause — “within

The subdivision of the reservations, allotments to individual Indians, and the ultimate alienation of allotments, being thus in view at the making of the treaty, it is unreasonable to give such a construction to the stipulation contained in the second portion of Article VII as would defeat its object, by removing the restriction from scattered parcels of land whenever it should come to pass that the Indian title therein was extinguished. The restriction would be of little force unless it covered the entire ceded area en bloc, so that no change in the situation of the reservations by way of extinguishing the residue of Indian, title or otherwise should operate to limit its effect. And so, upon the whole, we' deem it manifest that the second clause of Article VII dealt with the entire ceded country, including the reservations, as country proper to be subjected to the laws relating to the introduction; etc., of liquor into the Indian country , until otherwise provided by Congress. It was evidently contemplated that thé bands of Indians, while making their permanent homes within the reservations, would be at liberty to roam and to hunt throughout the entire country, as' before. The purpose was to guard them from all- temptation to use intoxicating liquors.

That it is within the constitutional power of Congress to prohibit the manufacture, introduction, or sale of intoxicants upon Indian lands, including not only lands reserved for their special occupariy, but also lands outside of the' reservations to which they may naturally resort; and that this may be. done even with respect to lands lying within the bounds of a State, are propositions so

And we cannot -agree with the District Court that Article VII of the treaty of 1855 was repealed by the Minnesota Enabling Act, or by the admission of that State into the Union upon equal terms with the other States. Neither the Enabling Act nor the Act of Admission contains any reference to the treaty, although the latter was so recent that it can hardly have been overlooked. The court , seems to have considered that the continued existence of Article VII, so far as it prohibited the introduction, manufacture, and sale of liquors within the ceded country outside of the reservations, was inconsistent with the “equal footing” clause of the. Enabling and Admitting Acts. That there is no such inconsistency results very plainly, as we think, from the reasoning and authority of the cases above cited. The court deemed that United States v. Forty-three Gallons of Whiskey, supra, and Dick v. United States, supra, were distinguishable upon the ground that in each of those cases the treaty under consideration was made after the State had been admitted into the Union. But if the making of such á treaty after the admission of the State is not inconsistent with thé “equal footing” of that State with the others— as, of course, it is not — it seems tó us to result that there is nothing in the effect of “equal footing” clauses to operate as an implied repeal of such a treaty when previously established; -

In Ex parte Webb, 225 U. S. 663 , we had to deal with the effect of the Oklahoma Enabling Act (June 16, 1906, c. 3335, 34 Stat. 267 ) upon a previous statute (act of March 1, 1895, c. 145, § 8, 28 Stat. 693 , 697), which prohibited (inter alia), the “carrying into said [Indian] Terri

In United States v. Wright, 229 U. S. 226 , we held that the prohibition against the introduction of intoxicating liquors into the Indian country found in § 2139, Rev. Stat., as amended by the acts of July 23, 1892, c. 234, 27 Stat. 260 , and January 30, 1897, c. 109, 29 Stat. 506 , was not repealed, with respect to intrastate transactions, by the Oklahoma Enabling Act, in spite of the provision respecting internal 'prohibition contained therein as already mentioned.

Upon the whole, we have no difficulty in concluding that Article VII of the Treaty of February 22, 1855, was not repealed by the admission of Minnesota into the Union.

We come, therefore, to the principal contention of complainants and appellees, which is that the Article was repealed by the effect of the Treaties of 1865 and 1867. The argument in support of this contention may be outlined as follows: that by the earliest of the three treaties the several bands of Indians ceded to the United States the great tract of approximately 21,000 square miles, but excepted from that cession the several reservations created for the Mississippi bands and for the Pillager and Lake Winnibigoshish bands;- that when the Treaty of 1865 was

It will at once be observed that the argument rests at bottom upon the erroneous construction to which we have already called attention, viz;, that the second portion of Article VII did not apply to the reservations that were within the exterior limits of the ceded territory. We repeat that, in our opinion, the restriction applied to all the territory that was included within the terms of the cession; as much to those portions set apart for reservations as to the surrounding territory. There was nothing in the Treaty of 1865, therefore, to make the receded reservations unrestricted territory; nor was there anything in the Treaty of 1867 to remove the restriction from the territory then receded. Reading the series of treaties together, it is plain enough, we think, that the contracting parties, in all that was done, were resting upon the plain language of the second part of Article VII, which declared that the laws relat

Finally, it is contended that Article VII.of the Treaty of 1855 had been superseded at the time of the acts complained of in the bill (1910), by'virtue of the provisions of the Nelson Act of January 14, 1889, c. 24, 25 Stat. 642 , and the cessions made to the United States by the Indians pursuant to that act, and by reason of the change in the character of the territory included in the Treaty of 1855 and the status of the Indians therein.

As already pointed out, this act provided that Commissioners to be appointed by the President should negotiate with the different bands of Chippewas in the State of Minnesota for the complete cession and relinquishment of their title and interest in all their reservations in the State, except so much of the White Earth and Red Lake reservations as was not required for allotments, and that acceptanee and approval of such cession and relinquishment by the President should be deemed full and ample proof of the cession and should operate as a complete extinguishment of the Indian title without other or further act or ceremony.

From the averments of the amended bill and answer it is not easy to gather a precise statement of the present situation of the Indian lands and of the Indians themselves, so far as it affects the question before us. Some reference is made to the situation at the Red Lake reservation; but since it is not clear that the restriction contained in the Treaty of 1855 was intended for the protection of the Indians within that reservation, we prefer to confine our attention to the situation as it existed in 1910 within the boundaries of the great tract that was the subject of the cession of 1855. Within those bounds there would seem to be remaining only fragments of the White Earth

The argument for treating the restriction of 1855 as no

In view of the interpretation we have placed upon that Article, it seems to us that' the contention as to changed conditions must be based not upon the supposed fact that the tract covered by the cession of 1855 “is already dotted with wet territory,” but rather upon the question whether the restriction — entered into more than half a century ago, when the country was a wilderness — ought to be treated as still in force, in view of the small number of Indians entitled to protection as compared with the large population of whites who now form the great majority of the inhabitants, and in view of the high state of civilization and development of the territory in question.

In Perrin v. United States, 232 U. S. 478 , 486, we had to deal with a somewhat similar question. That was a review of a conviction for unlawfully selling intoxicating liquors upon ceded lands formerly included in the Yank-

“As the power is incident only to the presence of the Indians and their status as wards of the- Government, it must be conceded that it does not go beyond what is reasonably essential to their protection,, and that, to be effective, its exercise must not be purely arbitrary, but founded upon some reasonable basis. Thus, a prohibition like that now before us, if covering an entire State when there were only a few Indian wards in a single county, undoubtedly would be condemned as arbitrary. And a prohibition valid in the beginning doubtless would become inoperative when in regular -course the Indians affected were completely emancipated from -Federal- guardianship and control. A different view in either case would involve an unjustifiable encroachment upon a power obviously residing in the State. On the other hand, it must also be conceded that, in determining what is reasonably essential to the protection of the Indians, Congress is invested with a wide discretion, and its action, unless purely arbitrary, must be accepted and given full effect by the courts.”

Although the circumstances of the present case are different, and we are- here dealing with a question of obsolescence rather than of original invalidity, the language just quoted indicates the point of view, from which the question should be approached. But we must not forget that the question is one, primarily, for the consideration of the law-making body; nor are we in danger of doing so, since by the very terms of the stipulation now under consideration the prohibition of the liquor traffic was to con-, tinue “until otherwise provided by Congress.” We do not- mean to say that if it appeared that no considerable

Indeed, it has only recently been under consideration by Congress. On February 17,1911 (Senate Doc. No. 824, 61st Cong., 3d Sess., Yol. 85), the President, in a special message, called attention to the situation in Minnesota, resulting from the operation of the old Indian treaties under present conditions; and with respect to the area ceded by the Chippewas in. 1855, he stated: “The.records of the Indian Bureau show that there are within said area, under the jurisdiction of the superintendents of the White Earth and Leech Lake Reservations, 7,196 Indians who can be amply protected by limiting the territory as to which said treaty provisions shall remain in force and effect to the area within and contiguous to said reservations, particularly described as follows: . . . T therefore recommend that Congress modify the article of said treaty quoted above so as to exclude from the operations of its provisions all of the territory ceded by said treaty to the United States, except that immediately above described.”

That Congress has not yet acted upon this recommendation is evidence that the problem is not so entirely obvious of solution that it can be judicially declared to be beyond the range of legislative discretion.

Since it must be admitted that complainants have no ground of relief against defendants if the restriction remains in force at Bemidji, as we hold that it does, it follows

Decree reversed.

Mr. Justice McKenna and Mr. Justice Lurton dissent upon grounds expressed in the opinion of the District Court, reported in 183 Fed. Rep. 611 .