Gearlds v. Johnson

• Citation: 183 F. 611
• Decision Date: 09 January 1911
• Docket Number: 1,007.
• Parties: GEARLDS et al. v. JOHNSON et al.
• Court: U.S. District Court — District of Minnesota

183 F. 611

GEARLDS et al. v. JOHNSON et al.

No. 1,007.

United States Circuit Court, D. Minnesota, Fourth Division.

January 9, 1911

Spooner & Brown and E. E. McDonald, for complainants.

C. C Houpt, U.S. Dist. Atty., for defendants.

WILLARD District Judge (orally).

Congress from time to time has passed various laws prohibiting the introduction of liquor into the Indian country. Among these are the act of 1834 (Act June 30, 1834, c. 161, 4 Stat. 729) the act of 1864 (Act March 15, 1864, c. 33, 13 Stat. 29), the act of 1892 (Act July 23, 1892, c. 234, 27 Stat. 260), and the act of 1897 (Act Jan. 30, 1897, c. 109, 29 Stat. 506) and the question at the bottom of this case is, of course whether the United States government can prohibit the introduction of intoxicating liquors into land covered by the treaty of 1855. If the case depended alone upon these various acts of Congress, and particularly upon the last act, then no power could be found in the government for the purpose of prohibiting such introduction.

In the case of Dick v. U.S., 208 U.S. 340, the court said on page 352 (page 402 of 28 S.Ct. (52 L.Ed. 520)):

'If this case depended alone upon the federal liquor statute forbidding the introduction of intoxicating drinks into the Indian country, we should feel obliged to adjudge that the trial court erred in not directing a verdict for the defendant; for that statute, when enacted, did not intend by the words 'Indian country' to embrace any body of territory in which, at the time, the Indian title had been extinguished, and over which and over the inhabitants of which (as was the case of Culdesac) the jurisdiction of the state, for all purposes of government, was full and complete.'

The situation at Bemidji is the same as it was at Culdesac. It is not within the Indian country, and consequently the statute alone would not justify any prosecution for the introduction of liquor into that country. The power of the government must rest, as it rested in the case of Dick v. U.S., upon a treaty; and the treaty invoked is the treaty with the Chippewa Indians of February 22, 1855, which is in 10 Statutes at Large, p. 1165. Article 7 of that treaty is as follows:

'Art. 7. The laws which have been or may be enacted by Congress, regulating trade and intercourse with the Indian tribes, to continue and be in force within and upon the several reservations provided for herein; and those portions of said laws which prohibit the introduction, manufacture, use of, and traffic in, ardent spirits, wines, or other liquors, in the Indian country, shall continue and be in force, within the entire boundaries of the country herein ceded to the United States, until otherwise provided by Congress.'

The first and most important case to be considered is U.S. v. 43 Gallons of Whisky, 93 U.S. 188, 23 L.Ed. 846. That case involved a treaty made with the Chippewa Indians in 1863, by which they ceded certain lands in Minnesota to the United States. It contained a clause similar to article 7 of the treaty of 1855. The court said there at page 194 of 93 U.S. (23 L.Ed. 846):

'It was contended, among other things, that the sale of liquor to an Indian, or any other person within the county, was a matter of state regulation, with which Congress had nothing to do. But this court held that the power to regulate commerce with the Indian tribes was, in its nature, general, and not confined to any locality; that its existence necessarily implied the right to exercise it, whenever there was a subject to act upon, although within the limits of a state, and that it extended to the regulation of commerce with the individual members of such tribes.'

The court further said at page 195 of 93 U.S. (23 L.Ed. 846):

'As long as these Indians remain a distinct people, with an existing tribal organization, recognized by the political department of the government, Congress has the power to say with whom, and on what terms, they shall deal, and what articles shall be contraband. If liquor is injurious to them inside of a reservation, it is equally so outside of it; and why cannot Congress forbid its introduction into a place near by, which they would be likely to frequent?'

And at page 196 of 93 U.S. (23 L.Ed. 846):

'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.' And finally, at page 198 of 93 U.S. (23 L.Ed. 846):

'If this result can be thus obtained, surely the federal government may, in the exercise of its acknowledged power to treat with Indians, make the provision in question, coming, as it fairly does, within the clause relating to the regulation of commerce.'

This case has been referred to in subsequent decisions. In the case of Dick v. U.S., before mentioned, there was under consideration a treaty with the Indians which prohibited for the period of 25 years the introduction of intoxicating liquor into lands then ceded by them. The court in delivering the opinion repeatedly referred to that circumstance, and seemed to indicate that the period of prohibition was important. In speaking of the case of U.S. v. 43 Gallons of Whisky, the court said at page 359 of 208 U.S., page 405 of 28 S.Ct. (52 L.Ed. 520):

'In view of some contentions of counsel and of certain general observations in the case of Forty-Three Gallons of Whisky, above cited, not necessary to the decision of that case, but upon which some stress has been laid, it is well to add that we do not mean by anything now said to indicate what in our judgment is the full scope of the treaty-making power of Congress, nor how far, if at all, a treaty may permanently displace valid state laws or regulations.'

The latest case to which my attention has been called is U.S. v. Sutton, 215 U.S. 291, 30 Sup.Ct. 116, 54 L.Ed. 200. There a prosecution for the introduction of liquor into Indian country was upheld; but it appeared that the 'Indian country' there in question was a tract of land which had been allotted to an Indian, the title to which was still held in trust for him by the United States. It may be argued that the authority of the case of U.S. v. 43 Gallons of Whisky has been somewhat qualified by what was said in the case of Dick v. U.S., and by the fact that the case of U.S. v. Sutton, supra, was put upon somewhat different grounds. It was nevertheless in the first case distinctly held that Congress had the power, not only to prohibit the introduction of liquor into an Indian reservation, into what was in fact Indian country, but also to prohibit the introduction of liquor into adjoining country, not Indian country, but within the limits of an organized state. So far as this court is concerned, that statement must be considered as binding upon it. The law must be considered as settled that Congress has the power to prohibit the introduction of liquor into lands not Indian country, but adjoining it, within the limits of a state.

But, when this is admitted and conceded, the present case is not yet in my judgment resolved. The question here presented is not a question as to the power of Congress. As I have already said, it is within the power of Congress, after a state has been admitted to the Union, to prohibit the introduction of liquor into not only Indian country, but into the adjoining country. That it had that power before the state was admitted and while the land was within the limits of a territory is unquestioned. At the time when the treaty of 1855 was negotiated the government had undoubtedly the power to insert in that treaty the provisions therein contained. So it is not at all a question of power, but it is a question whether that provision in the treaty of 1855 is still in force, or whether any subsequent act of Congress has modified or repealed it. Whisky nor by Dick v. U.S. In each of those cases the treaty under consideration was made after the state had been admitted to the Union. These questions can only be answered by reference to the proceedings which took place when the state of Minnesota was admitted to the Union, and by reference to the authorities.

The enabling act was passed on the 26th of February, 1857 (chapter 60, 11 Stat. 166). It provided in section 5, subd. 5, as follows:

'Provided, the foregoing propositions herein offered are on the condition, that the said convention which shall form the Constitution of said state shall provide, by a clause in said Constitution, or an ordinance, irrevocable without the consent of the United States, that said state shall never interfere with the primary disposal of the soil within the same, by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof; and that no tax shall be imposed on lands belonging to the United States, and that in no case shall nonresident proprietors be taxed higher than residents.'

These were the only agreements which Congress imposed as a condition for the entrance of Minnesota into the Union. There is nothing whatever said in the enabling act with reference to Indians. There is nothing said in it with reference to this treaty of 1855, or with reference to any other treaty. Nothing was inserted therein requiring the state in its Constitution to recognize the treaty of 1855, or any other treaty, or as to the rights of the Indians to any lands within the boundaries of the state. When the Constitution was adopted it contained no such recognition, and Indians are mentioned in only two places therein. By article 7, Sec. 1 they are given the right to vote under...