Evans v. Victor

• Decision Date: 17 April 1913
• Docket Number: 3,863.
• Citation: 204 F. 361
• Parties: EVANS v. VICTOR, U.S. Marshal, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

204 F. 361

EVANS v. VICTOR, U.S. Marshal, et al.

No. 3,863.

United States Court of Appeals, Eighth Circuit.

April 17, 1913

J. C Denton, of Muskogee, Okl. (W. S. Cochran, of Muskogee, Okl on the brief), for appellant.

William J. Gregg, U.S. Atty., of Muskogee, Okl., for appellees.

Before SANBORN, Circuit Judge, and WILLIAM H. MUNGER and JACOB TRIEBER, District Judges.

SANBORN Circuit Judge.

Are the lands within the original corporate limits of the city of Muskogee and of other cities in the state of Oklahoma, the original Indian title to which has been extinguished and the unrestricted title to which has been vested in purchasers and their grantees under the Act of June 28, 1898, c. 517, 30 Stat. 495, and the Act of March 1, 1901, c. 676, 31 Stat 864, 868, Secs. 10 and 24, still Indian country, so that a special officer of the Interior Department, or an Indian agent, or the United States marshal, or the deputy of either of them, has authority to enter upon and search them, and the buildings and improvements upon them, without warrant or process, under sections 2139 and 2140, Revised Statutes, or any other act of Congress? This is the question which this case presents, and it is raised in this way: The plaintiff W. E. Evans, exhibited his bill in equity in the court below against S. G. Victor, the United States marshal, and Henry A. Larsen, the chief special officer of the Indian service, to suppress the sale of intoxicating liquors among the Indian tribes, in which he alleged that the marshal by one Hubbard, his deputy, and Larsen, without any search warrant or other process, unlawfully entered and searched for intoxicating liquor the Fountain Drug Store, of which he was and is the owner and proprietor; that this drug store was and is located on land within the original corporate limits of the city of Muskogee to which the Indian title had long prior thereto been extinguished; that the unrestricted title to this land had long before the search passed to and vested in purchasers thereof and their grantees under the Act of June 28, 1898, c. 517, 30 Stat. 495, Sec. 14, and the Act of March 1, 1901, c. 676, 31 Stat. 861; that the defendants threaten to make further forcible searches of the plaintiff's drug store, and of his person, houses, papers, and effects, solely by virtue of their offices; that their search disturbed and demoralized his business and exposed him to shame, contempt, ridicule, and unjust suspicion, to his damage in the sum of $3,100; that if the defendants are permitted to carry out their threat and to repeat the search at will his business will be destroyed, he will continue to be exposed to suspicion, shame, and ridicule, and will suffer irreparable injury; that he is a citizen of the state of Oklahoma and resides in the city of Muskogee; and that the acts of the defendants infringe upon his personal and property rights in violation of the fourth and fifth amendments to the Constitution of the United States, and he prayed for a permanent and moved for a temporary injunction against the threatened searches. In response to the motion for the injunction the United States attorney filed a statement on behalf of the defendants to the effect, so far as it is now material, that Larsen was the chief special officer of the United States Indian service appointed by the Secretary of the Interior to suppress the sale of intoxicating liquors among the Indian tribes; that Hubbard was his deputy and the deputy marshal; that if Hubbard made the search alleged he did it under the general direction of Larsen to enter and search any premises in the Indian country where he had reasonable ground to believe intoxicating liquors were unlawfully stored or kept; that the plaintiff's drug store in the city of Muskogee is situated in the Indian country; and that Larsen and his deputy had lawful authority to search it by virtue of sections 2139 and 2140, Revised Statutes, the Act of March 1, 1907, c. 2285, 34 Stat. 1017 (U.S. Comp. St. Supp. 1911, p. 1036), and the Act of March 1, 1895, c. 145, 28 Stat. 697. Upon the bill and this statement of the United States attorney the court below heard and denied the motion for the temporary injunction, on the ground that the complainant's drug store was situated in the Indian country, and the plaintiff appealed.

Sections 2139 and 2140 of the Revised Statutes are modified remnants of section 20 of the Act of June 30, 1834, c. 161, 4 Stat. 732. The first part of that section declared that if any person should sell or dispose of spirituous liquor or wine to an Indian in the Indian country, or if any person should introduce, or attempt to introduce, such liquor or wine into the Indian country, except supplies for the army, he should forfeit and pay a fine. The second part of the section provided that if any superintendent of Indian affairs, Indian agent or subagent, or commanding officer of a military post, had reason to suspect that any white person or Indian was about to introduce, or had introduced, any spirituous liquor or wine into the Indian country, it should be lawful for him to cause the boats, stores, packages, and places of deposit of such person to be searched, the liquor or wine to be seized, proceeded against by libel, and any ardent spirits or wine found in the Indian country to be destroyed. The first part of this section, with changes here immaterial, has descended into section 2139, and the second part into section 2140, of the Revised Statutes. Section 2139 prohibits the introduction of ardent spirits into the Indian country. Section 2140 authorizes a superintendent of Indian affairs, Indian agent or subagent, to cause the boats, stores, wagons, sleds, and places of deposit of any person who he suspects or is informed has introduced, or is about to introduce, spirituous liquor or wine into the Indian country to be searched, and the spirits, if found, to be libeled or destroyed. It is conceded by counsel for the defendants, and is settled by repeated decisions of the Supreme Court, that the power of the officers of the Interior Department, and of the officers of the army, to cause such searches and seizures is limited by the terms and the true construction of section 20 of the act of 1834, and of sections 2139 and 2140 of the Revised Statutes, to searches and seizures in the Indian country, and that they are without authority to cause such searches and seizures outside the Indian country. Bates v. Clark, 95 U.S. 204, 209, 24 L.Ed. 471; Clairmont v. United States, 225 U.S. 551, 556, 560, 32 Sup.Ct. 787, 56 L.Ed. 1201.

The Act of March 1, 1907, c. 2285, 34 Stat. 1017, and the Act of March 1, 1895, c. 145, 28 Stat. 697, which the defendants cite in justification of their acts, contain nothing which either expressly or by reasonable implication extends the power of these officers to make searches and seizures, without warrant or process, to places outside the Indian country. The act of 1907 merely confers upon the special agent of the Indian bureau for the suppression of the liquor traffic among Indians and in the Indian country, and his deputies, the same authority which is conferred by section 2140 on the Indian superintendents, the Indian agents, subagents, and the commanding officers of military posts, but no greater or more extended authority. The Act of March 1, 1895, c. 145, 28 Stat. 697, simply provided that any person who should carry any intoxicating drinks into the Indian Territory, or cause such drinks to be so carried, or should in that territory manufacture, sell, or furnish to any one any intoxicating drinks, should be subject to fine and imprisonment (section 8), and that none of the laws in force in that territory that were not in conflict with that act were repealed, or in any manner affected thereby (section 13). As section 2140 was then in force in the Indian Territory, as there was no treatment or mention of it, or of its subject, the power to search or seize, and as there was nothing in that section, or in the limitation of the power of the officers therein named to the Indian country, which was in conflict with any of the provisions of the act of 1895, that section and the limitation of the power of the officers therein mentioned to the Indian country was not 'in any manner affected' by that act, and the result is that the defendants had no authority to make the search which they made and those they threaten to make, unless the land in the city of Muskogee on which the plaintiff's drug store was located was in the Indian country.

What, then, is the Indian country? Congress, by the Act of 1834, c. 161, 4 Stat. 729, declared 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 shall not have been extinguished, for the purposes of this act be taken and deemed to be the Indian country.'

And it has been settled by repeated and uniform decisions of the Supreme Court, from Bates v. Clark, 95 U.S. 204 208, 24 L.Ed. 471, wherein the rule was first clearly announced in 1877, to Clairmont v. United States, 225 U.S. 551, 558, 32 Sup.Ct. 787, 56 L.Ed. 1201, wherein it was reaffirmed in 1912, and it is conceded by counsel for the defendants that the criterion by which to determine whether a specified tract of land or location is in the Indian country, is that all the country described by the act of 1834 as Indian country remains Indian country as long as the Indians retain their original title, and, in the absence of a different provision by treaty, or by act of Congress, ceases to be Indian country whenever that title is extinguished. Dick v....