ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH DAKOTA
White, McKenna, Holmes, Van Devanter, Pitney, McReynolds
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This is a prosecution for selling whiskey and other intoxicating liquors to an Indian in violation of the act of January 30, 1897, c. 109, 29 Stat. 506. According to the indictment, the sale was made August 9, 1914, in Tripp County, South Dakota; the Indian was a member of the Sioux tribe, a ward of the United States and under the charge of an Indian agent; and the United States was still holding in trust the title to land which had been allotted to him April 29, 1902. A demurrer was sustained and the indictment dismissed on the ground that the statute, in so far as it purports to embrace such a case, is invalid, because in excess of the power of Congress. The case is here on direct writ of error under the Criminal Appeals Act, March 2, 1907, c. 2564, 34 Stat. 1246.
By the act of 1897 the sale of intoxicating liquor to "any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian a ward of the Government under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship," is denounced as a punishable offense.
The allotment to this Indian was made from the tribal lands in the Rosebud Reservation, in South Dakota, under the act of March 2, 1889, c. 405, 25 Stat. 888, the eleventh section (p. 891) of which provided that each allotment should be evidenced by a patent, inaptly so called, declaring that for a period of twenty-five years -- and for a further period if the President should so direct -- the United States would hold the allotted land in trust for the sole use and benefit of the allottee, or, in case of his death, of his heirs, and at the end of that period would convey the
same to him or his heirs in fee, discharged of the trust and free of all charge or encumbrance; that any lease or conveyance of the land, or contract touching the same, made during the trust period, should be null and void, and that each allottee should "be entitled to all the rights and privileges and be subject to all the provisions" of § 6 of the General Allotment Act of February 8, 1887 c. 119, 24 Stat. 388. The act of 1889 recognized the existence of the tribe, as such, and plainly disclosed that the tribal relation, although ultimately to be dissolved, was not to be terminated by the making or taking of allotments. In the acts of March 3, 1899, c. 450, 30 Stat. 1362, and March 2, 1907, c. 2536, 34 Stat. 1230, that relation was recognized as still continuing, and nothing is found elsewhere indicating that it was to terminate short of the expiration of the trust period.
By the General Allotment Act of 1887 provision was made for allotting lands in any tribal reservation in severalty to members of the tribe, for issuing to each allottee a trust patent similar to that just described and with a like restraint upon alienation, and for conveying the fee to the allottee or his heirs at the end of the trust period. Its sixth section, to which particular reference was made in § 11 of the act of 1889, declared that, upon the completion of the allotments and the patenting of the lands, the allottees should have "the benefit of and be subject to the laws, both civil and criminal, of the State or Territory" of their residence, and that all Indians born in the United States who were recipients of allotments under "this act, or under any law or treaty," should be citizens of the United States and entitled to all the rights, privileges and immunities of such citizens. This act, like that of 1889, disclosed that the tribal relation, while ultimately to be broken up, was not to be dissolved by the making or taking of allotments, and subsequent legislation shows repeated instances in which the tribal relation of Indians
having allotments under the act was recognized during the trust period as still continuing.
With this statement of the case, we come to the questions presented for decision, which are these: What was the status of this Indian at the time the whiskey and other liquors are alleged to have been sold to him? And is it within the power of Congress to regulate or prohibit the sale of intoxicating liquor to Indians in his situation?
The power of Congress to regulate or prohibit traffic in intoxicating liquor with tribal Indians within a State, whether upon or off an Indian reservation, is well settled. It has long been exercised and has repeatedly been sustained by this court. Its source is two-fold; first, the clause in the Constitution expressly investing Congress with authority "to regulate commerce . . . with the Indian tribes", and, second, the dependent relation of such tribes to the United States. Of the first it was said in United States v. Holliday, 3 Wall. 407, 417: "Commerce with the Indian tribes, means commerce with the individuals composing those tribes. . . . (p. 418). The locality of the traffic can have nothing to do with the power. The right to exercise it in reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or of a member of the tribe with whom it is carried on. . . . (p. 419). This power residing in Congress, that body is necessarily supreme in its exercise." And of the second it was said in United States v. Kagama, 118 U.S. 375, 383: "These Indian tribes are the wards ...