Mosier v. United States

• Decision Date: 22 April 1912
• Docket Number: 3,627.
• Citation: 198 F. 54
• Parties: MOSIER v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

198 F. 54

MOSIER v. UNITED STATES. ^[1]

No. 3,627.

United States Court of Appeals, Eighth Circuit.

April 22, 1912

Milton Brown, for plaintiff in error.

John Embry, U.S. Atty., and Isaac D. Taylor, Asst. U.S. Atty.

Before SANBORN, ADAMS, and CARLAND, Circuit Judges.

CARLAND Circuit Judge.

Mosier was tried, convicted, and sentenced upon the first count of an indictment which was in the following language:

'That heretofore, to wit, on the 28th day of December, in the year of our Lord one thousand nine hundred and nine, Eugene Mosier, whose more full name is to the grand jurors unknown, then and there being in said district, did then and there, within said district, to wit, in the county of Osage, in said Western district of Oklahoma, and within the jurisdiction of said court, unlawfully, willfully, and feloniously sell, give away, dispose of, exchange, and barter certain intoxicating liquors, to wit, whisky, to a certain Indian, to wit, to Hazel Gray, said Indian being then and there a ward of the government under charge of an Indian superintendent, and an Indian over whom the government, through the Interior Department then and there exercised guardianship, and an Indian who had not received a certificate of competency and whose restrictions had not been removed, and who was then and there a member of the Osage tribe of Indians, in Oklahoma and then and there and continuously theretofore a resident and inhabitant of said district and of the former territory of Oklahoma.'

After conviction Mosier moved in arrest of judgment on the ground that the first count did not state an offense against the laws of the United States. The motion being overruled and exception taken, the judgment entered on the verdict has been removed here by writ of error. While other errors are assigned, the ruling on the motion in arrest is the only one reviewable by us. Section 1, Act Jan. 30, 1897 (29 Stat. 506), the law under which the indictment was framed, reads as follows:

'That any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian to whom 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 under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the government, through its departments, exercises guardianship, * * * shall be punished by imprisonment for not less than sixth days, and by a fine of not less than one hundred dollars for the first offense and not less than two hundred dollars for each offense thereafter. * * * '

A comparison of the indictment with the statute easily demonstrates that an offense is stated therein unless there are other statutes which have repealed the law upon which the indictment is based as to Oklahoma, or have removed Hazel Gray from the class of persons to whom it is unlawful by the terms thereof to sell, give away, or dispose of spirituous or vinous liquors. It is alleged in the indictment that Hazel Gray on December 28, 1909, was a member of the Osage Tribe of Indians, in Oklahoma, who had not received a certificate of competency and whose restrictions had not been removed. To understand the force of this allegation, we must examine Act June 28, 1906, 34 Stat. 539. This act divided all lands belonging to the Osage Tribe of Indians in Oklahoma by giving to the members of such tribe his or her fair share thereof in acres, as provided in the act. Generally speaking, each member of the tribe was entitled to make three selections of land, of 160 acres each, and to designate which one of these should be his or her homestead. The act further provided that the homestead should be inalienable and nontaxable until otherwise provided by Congress, and that the other two selections, together with the remaining lands allotted to any member, should be known as surplus land and should be inalienable for 25 years. Subdivision 7 of section 2 and section 9 of the act, so far as material, read as follows:

'That the Secretary of the Interior, in his discretion, at the request and upon the petition of any adult member of the tribe, may issue to such member a certificate of competency, authorizing him to sell and convey any of the lands deeded him by reason of this act, except his homestead, which shall remain inalienable and nontaxable for a period of twenty-five years, or during the life of the homestead allottee, if upon investigation, consideration, and examination of the request he shall find any such member fully competent and capable of transacting his or her own business and caring for his or her own individual affairs: Provided, that upon the issuance of such certificate of competency the lands of such member (except his or her homestead) shall become subject to taxation, and such member, except as herein provided, shall have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States.'

'Sec. 9. That there shall be a biennial election of officers for the Osage Tribe as follows: A principal chief, an assistant principal chief, and eight members of the Osage tribal council, to succeed the officers elected in the year nineteen hundred and six, said officers to be elected at a general election to be held in the town of Pawhuska, Oklahoma Territory, on the first Monday in June; and the first election for said officers shall be held on the first Monday in June, nineteen hundred and eight, in the manner to be prescribed by the Commissioner of Indian Affairs, and said officers shall be elected for a period of two years, commencing on the first day of July following said election, and in case of a vacancy in the office of principal chief, by death, resignation, or otherwise, the assistant principal chief shall succeed to said office, and all vacancies in the Osage tribal council shall be filled in a manner to be prescribed by the Osage tribal council, and the Secretary of the Interior is hereby authorized to remove from the council any member or members thereof for good cause, to be by him determined.'

An examination of the act now under consideration shows beyond question that there is an Osage Indian agency in Oklahoma, in charge of an Indian superintendent, and that as to all Osage Indians who have not received a certificate of competency the Department of Interior exercises guardianship over them. Therefore Act June 28, 1906, 34 Stat. 539, is not only not inconsistent with the allegations of the indictment, but in connection with such allegations establishes the fact on motion in arrest that Hazel Gray was on December 28, 1909, an Indian under the charge of an Indian superintendent, and also an Indian over whom the government, through the Interior Department, exercised guardianship.

It is further contended, however, that, as the indictment alleges that Hazel Gray was on the date last mentioned a member of the Osage Tribe of Indians in Oklahoma, we must take judicial notice from this allegation that she was then and there a citizen of the United States and of Oklahoma, and therefore not subject to Act Jan. 30, 1897 (29 Stat. 506), upon which the indictment is founded. In support of this position, the case of In re Heff, 197 U.S. 488, 25 Sup.Ct. 506, 49 L.Ed. 848, and certain provisions of the act of June 16, 1906 (chapter 3335, 34 Stat. 267), are cited. Just how Hazel Gray became a citizen of the United States and of Oklahoma is not specifically pointed out. Act June 28, 1906, 34 Stat. 539, under which the lands of the Osage Indians were allotted, unlike General Allotment Act Feb. 8, 1887, c. 119, 24 Stat. 388, did not provide that the Osage Indians, after the allotment, should be citizens of the United States and be subject to and entitled to all the benefits of all the laws, civil and criminal, of the state wherein they resided. The act under which Oklahoma was admitted to the Union did not in express terms make the Osage Indians citizens of the United States and of Oklahoma, but, as it seems to be conceded that Hazel Gray was on December 28, 1909, a citizen of the United States and of Oklahoma, we presume that her citizenship arose by reason of her being an inhabitant of the territory which was admitted to the Union as the state of Oklahoma on an equal footing with the other states of the Union.

The question, then, to be decided on this branch of the case is: Does the mere fact of citizenship destroy the allegation of the indictment that Hazel Gray was on December 28, 1909, an Osage Indian under the charge of an Indian superintendent, and an Indian over whom the government, through the Interior Department, exercised guardianship? There is certainly nothing inconsistent in being an Indian and a citizen of the United States at the same time. The word 'Indian' describes a person of Indian blood. The word 'citizen' describes a political status. If as a matter of law and fact the government is exercising guardianship over an Indian who is also a citizen, it is not for the courts to say when the guardianship shall cease. As was said by the Supreme Court in United States v. Rickert, 188 U.S. 432, 23 Sup.Ct. 478, 47 L.Ed. 532:

'These are considerations to be addressed to Congress. It is for the legislative branch of the government to say when these Indians shall cease to be dependent and assume the responsibilities attaching to citizenship. That is a

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