Brown v. United States

• Citation: 8 F.2d 433
• Decision Date: 02 November 1925
• Docket Number: No. 4498.,4498.
• Parties: BROWN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

8 F.2d 433 (1925)

BROWN v. UNITED STATES.^*

No. 4498.

Circuit Court of Appeals, Ninth Circuit.

November 2, 1925.

Thomas J. Croaff and Joseph E. Morrison, both of Phœnix, Ariz., for plaintiff in error.

John B. Wright, U. S. Atty., of Tucson, Ariz., and Geo. T. Wilson and George R. Hill, Asst. U. S. Attys. both of Phœnix, Ariz.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

HUNT, Circuit Judge.

Evelyn Brown was convicted of selling intoxicating liquor to one Enis, a Maricopa Indian under charge of an Indian Agent, and a ward of the United States. The indictment is drawn under the Act of Congress of January 30, 1897 (chapter 109, § 1, 29 St. 506 Comp. St. § 4137), which provides that any person who shall sell liquor or any article which produces intoxication, to an Indian to whom an 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 in charge of any Indian superintendent or agent, or any Indian over whom the government, through its departments, exercises guardianship, and any person who shall introduce liquor into the Indian country, shall be punished by imprisonment for not less than 60 days and by a fine of not less than $100 for the first offense, and not less than $200 for each offense thereafter. That act was amendatory of section 2139 (Comp. St. § 4136a), which provided that every person (except an Indian in an Indian country) who sells or disposes of any spiritous liquor to an Indian under the charge of any Indian superintendent or agent, or who introduces or attempts to introduce any spirituous liquor or wine into the Indian country shall be punishable by imprisonment of not more than 2 years and by a fine of not more than $300. The sentence imposed was 2 years' imprisonment and a fine of $200. Motion in arrest of judgment was overruled, and writ of error was brought to review the judgment.

Upon the trial it was stipulated that defendant is a native-born Indian and an allottee of reservation land in Arizona, and is under the charge of a United States Indian agent.

Plaintiff contends that (a) the indictment states no offense, in that the statutes under which it was drawn have been modified, superseded, and repealed by the Eighteenth Amendment to the Constitution of the United States and by the National Prohibition Act of October 28, 1919 (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), in so far as such laws are applicable to any part of the United States except Indian country; and (b) that, by the Act of June 2, 1924 (chapter 233, 43 St. 253 Comp. St. Supp. 1925, § 3951aa), full and unqualified citizenship was granted to all native-born noncitizen Indians, and that thereupon the Indian to whom it is charged the liquor was sold ceased to be a ward of the United States.

Considering the first point, it is always to be kept in mind that the statute of January 30, 1897, rests upon the governmental policy of protection of Indians who are wards of the government from the dangers and evil effects of drinking intoxicating liquor. The statute is special in respect to Indians and Indian country (Kennedy v. United States, 265 U. S. 344, 44 S. Ct. 501, 68 L. Ed. 1045), and, in view of the underlying policy of the legislation, we see no incompatibility between it and the National Prohibition Act, which was enacted to enforce the Eighteenth Amendment. We therefore hold that there was no repeal (United States v. Stafoff, 260 U. S. 477, 43 S. Ct. 197, 67 L. Ed. 358; McClintic v. United States C. C. A. 283 F. 781).

Whether the plaintiff in error Indian was so far emancipated by the Act of June 2, 1924 (43 St. 1923-24, pt. 1, p. 253), as to be withdrawn from the provisions of the special act is the next question. By the Act of June 2, 1924, all noncitizen...