United States v. Hutto, 691

• Citation: 41 S.Ct. 541,65 L.Ed. 1073,256 U.S. 524
• Decision Date: 01 June 1921
• Docket Number: No. 691,691
• Parties: UNITED STATES v. HUTTO et al
• Court: United States Supreme Court

256 U.S. 524

41 S.Ct. 541

65 L.Ed. 1073

UNITED STATES

v HUTTO et al.

No. 691.

Supreme Court of the United States

Argued April 11, 1921.

June 1, 1921

Mr. Assistant Attorney General Garnett, for the United States.

Mr. Sam K. Sullivan, of Newkirk, Okl., for defendants in error.

Mr. Justice PITNEY delivered the opinion of the Court.

This writ of error was brought under the Criminal Appeals Act of March 2, 1907 (chapter 2564, 34 Stat. 1246 [Comp. St. § 1704]), to review a judgment of the District Court sustaining demurrers to an indictment under section 37, Criminal Code (Comp, St. § 10-201), charging a conspiracy to violate section 2078 Rev. Stat. U. S. (Comp. St. § 4026), 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 spiracy shall be fined,' etc.

Section 2078, Rev. Stat., 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 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 section 2078, Rev. Stat. U. S., 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 section 2078, Rev. Stat., 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 section 37, Criminal Code.

Upon a rehearing, the demurrers again were sustained, but upon the ground that section 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 section 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 (article 1, § 8, cl. 3) to regulate commerce with the Indian Tribes, some traffic was carried on with the Indians upon the government account. As early as the year 1796 (chapter 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 (chapter 48, 2 Stat. 402), which required of the superintendent of Indian...