Browning v. United States

• Decision Date: 09 May 1925
• Docket Number: No. 6489.,6489.
• Citation: 6 F.2d 801
• Parties: BROWNING v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

6 F.2d 801 (1925)

BROWNING v. UNITED STATES.^*

No. 6489.

Circuit Court of Appeals, Eighth Circuit.

May 9, 1925.

Roy A. Reynolds, of Tulsa, Okl. (Allen W. Comstock, of Pawhuska, Okl., and Henry B. Martin, of Tulsa, Okl., on the brief), for plaintiff in error.

W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before SANBORN and KENYON, Circuit Judges, and BOOTH, District Judge.

BOOTH, District Judge.

Plaintiff in error was indicted, tried, and convicted for having in his possession on or about the 19th of February, 1922, intoxicating liquor "in and upon the Indian country, to wit, Osage county, Oklahoma."

The prosecution was had, according to the statement of counsel for plaintiff in error, under Act June 30, 1919, c. 4, § 1 (41 Stat. 4 Comp. St. Ann. Supp. 1923, § 4137aa); but, according to the statement of counsel for defendant in error, under Act May 25, 1918, c. 86, § 1 (40 Stat. 563 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4137aa), which, so far as here material, reads as follows:

"That on and after September first, nineteen hundred and eighteen, possession by a person of intoxicating liquors in the Indian country where the introduction is or was prohibited by treaty or federal statute shall be an offense and punished in accordance with the provisions of the acts of July twenty-third, eighteen hundred and ninety-two (Twenty-Seventh Statutes at Large, page two hundred and sixty), and January thirtieth, eighteen hundred and ninety-seven (Twenty-Ninth Statutes at Large, page five hundred and six)."

We deem it immaterial under which act the prosecution was had, since both acts prohibited the possession of intoxicating liquor "in the Indian country" at the time in question, and both acts provided that punishment should be in accordance with the provisions of Act of July 23, 1892 (27 Stat. 260 Comp. St. §§ 4136a, 4140), and Act Jan. 30, 1897 (29 Stat. 506 Comp. St. § 4137). The two last-mentioned acts prohibited the introduction of liquor into the Indian country, and provided punishment therefor. The penalties in the two acts were not exactly the same, but it has been held by this court that the latter of the two acts was an amendment of the former, and that the two should be construed together in fixing the maximum and minimum punishment. Morgan v. Ward, 224 F. 698, 140 C. C. A. 238.

The assignments of error are three in number. (1) That the court erred in overruling the demurrer to the indictment. (2) That the court erred in holding that the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138 ¼ et seq.) had not repealed the statute under which defendant was convicted. (3) That the verdict was contrary to the law and the evidence.

The legal question sought to be raised by the first and third assignments is whether the locus in quo of the alleged offense was "in and upon the Indian country." Inasmuch as counsel on both sides have assumed that this question was properly raised in the record, we shall so assume, but without so deciding.

The term "Indian country" has been defined by Congress several times and with varying content. As early as 1802 Congress described the boundaries of the Indian country, all of which at that time lay east of the Mississippi river. 2 Stat. 139. By the Act of Congress of June 30, 1834 (4 Stat. 729), the boundaries of the Indian country were defined as follows: "That all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi river, and not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country." Section 1.

Referring to this definition of "the Indian country," the Supreme Court said, in the case of Clairmont v. United States, 225 U. S. 551, 557, 32 S. Ct. 787, 788 (56 L. Ed. 1201): "This portion of the act of 1834 was not re-enacted in the Revised Statutes, though other parts of the statute were, and hence was repealed by section 5596 of the revision. But, as has frequently been stated by this court, the definition may still `be referred to in connection with the provisions of its original context which remain in force, and may be considered in connection with the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country where it is spoken of in the statutes.' Ex parte Crow Dog, 109 U. S. 556, 561 3 S. Ct. 396, 27 L. Ed. 1030; United States v. Le Bris, 121 U. S. 278, 280 7 S. Ct. 894, 30 L. Ed. 946."

By the Act of Congress of January 30, 1897, c. 109 (29 Stat. 506 Comp. St. § 4137) it was provided that the term "Indian country" "shall include any Indian allotment while the title to the same shall be held in trust by the government, or while the same shall remain inalienable by the allottee without the consent of the United States." In short, as this court has said: "The term `Indian country' has a constantly changing application." Joplin Mer. Co. v. U. S., 213 F. 926, 929, 131 C. C. A. 160, 163 (Ann. Cas. 1916C, 470).

It is undisputed that the place where the alleged offense was committed was one of the public streets of the city of Pawhuska, in Osage county, Okl. It is contended by plaintiff in error that, though Osage country had at one time concededly been Indian country, yet it had ceased to be Indian country long prior to the transaction now in question, or at least that the part of Osage county included in the town site of Pawhuska had ceased to be Indian country.

It is well settled, as contended by plaintiff in error, that lands which at one time have constituted part of the Indian country may cease to be such. In the leading case of Bates v. Clark, 95 U. S. 204, 24 L. Ed. 471, the court, in discussing the Act of June 30, 1834, said:

"What, then, is Indian country, within the meaning of the acts of Congress regulating intercourse with the Indians? * * * The simple criterion is that as to all the lands thus described it was Indian country whenever the Indian title had not been extinguished, and it continued to be Indian country so long as the Indians had title to it, and no longer. As soon as they parted with the title, it ceased to be Indian country, without any further act of Congress, unless by the treaty by which the Indians parted with their title, or by some act of Congress, a different rule was made applicable to the case."

The qualification in the last clause of the foregoing statement had already been illustrated in the case of United States v. 43 Gallons of Whisky, 93 U. S. 188, 23 L. Ed. 846. This was a libel of information by the United States against 43 gallons of whisky and other merchandise, seized under Act June 30, 1834 (4 Stat. 732), as amended by Act March 15, 1864 (13 Stat. 29), which forbade the introduction of intoxicating liquor into the Indian country. It was contended that the seizure was made within the jurisdiction of the state of Minnesota, and not within any Indian country. The seizure was in fact made in the village of Crookston, Polk county, Minn., on February 12, 1872. The land on which Crookston was located had been part of the lands of the Red Lake and Pembina bands of the Chippewa Indians, but had been ceded to the United States by the treaty of October 2, 1863. 13 Stat. 667. Minnesota had theretofore been admitted to the Union, and Polk county had been organized.

The treaty in question contained the following article: "The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, shall be in full force and effect throughout the country hereby ceded, until otherwise directed by Congress or the President of the United States." Article 7.

It was contended that the incorporation of this article in the treaty was beyond the power of Congress and was an invasion of the sovereignty of the state of Minnesota. The Supreme Court, however, held the article of the treaty valid and in the course of its opinion said:

"The Indian country, as defined by the act of 1834, was at that date so remote from settlements that there was no occasion to extend the prohibition beyond its limits. It has since then been so narrowed by successive treaties that the white population is now all around it, and regarding it with a wistful eye. In view of this changed condition, it would be strange indeed if the commercial power, lodged solely with Congress and unrestricted as it is by state lines, did not extend to the exclusion of spirituous liquors intended to corrupt the Indians, not only from existing Indian country, but from that which has ceased to be so, by reason of its cession to the United States.

"The power to define originally the `Indian country,' within which the unlicensed introduction and sale of liquors were prohibited, necessarily includes that of enlarging the prohibited boundaries whenever, in the opinion of Congress, the interests of Indian intercourse and trade will be best subserved. * * * This stipulation was not only reasonable in itself, but was justly due from a strong government to a weak people it had engaged to protect. It is not easy to see how it infringes upon the position of equality which Minnesota holds with the other states. The principle that federal jurisdiction must be everywhere the same, under the same circumstances, has not been departed from. The prohibition rests on grounds which, so far from making a distinction between the states, apply to them all alike. The fact that the ceded territory is within the limits of Minnesota is a mere incident; for the act of Congress imported into the treaty applies alike to all Indian tribes occupying a particular country, whether within or without state lines. Based as it is exclusively on the federal authority over the...