State v. Rorvick

• Decision Date: 08 December 1954
• Docket Number: No. 8195,8195
• Citation: 277 P.2d 566,76 Idaho 58
• Parties: STATE of Idaho, Plaintiff and Appellant, v. George RORVICK, Defendant and Respondent.
• Court: Idaho Supreme Court

Page 566

277 P.2d 566

76 Idaho 58

STATE of Idaho, Plaintiff and Appellant, v. George RORVICK, Defendant and Respondent.

No. 8195.

Supreme Court of Idaho.

Dec. 8, 1954.

Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., J. Clinton Peterson, Asst. Atty. Gen., Boise, Jay H. Stout, Prosecuting Atty., Bingham County, Blackfoot, for appellant.

J. Blaine Anderson, Blackfoot, for respondent.

Arthur Lazarus, Jr., Richard Schifter, Washington, D. C., Theodore H. Little, Clarkston, Wash., Amici Curiae.

KEETON, Justice.

Respondent was charged in a criminal complaint filed in a Justice Court with the unlawful sale of beer, alleged to be an intoxicating liquor, to an Indian. The Justice sustained a general demurrer to the complaint. On appeal to the District Court of Bingham County, the District Judge likewise sustained a general demurrer and dismissed the proceeding. The State has appealed to this Court. The complaint charges:

'That George Rorvick of Fort Hall, Idaho, on or about the 26th day of September, 1953, at Fort Hall, in the County of Bingham and State of Idaho, then and there being, did then and there wilfully, knowingly, intentionally and unlawfully sell or furnish, or cause to be sold or furnished, intoxicating liquor, to-wit: beer, to one Wilford George, said Wilford George being then and there an Indian, contrary to the Idaho Code, Sec. 18-4201.'

It is the contention of the respondent that such complaint charges no crime in that the provision of the Code, Sec. 18-4201 I.C. prohibiting the sale of intoxicating liquor to an Indian, is unconstitutional and in conflict with Art. 1, Secs. 1 and 2 of the Idaho Constitution, ¹ and the 14th Amendment to the Constitution of the United States. ² Respondent argues that Sec. 3, Art. 6, of the Idaho Constitution was amended in the general election of 1950, by which amendment, disqualifications of Indians in certain particulars contained in the original article were eliminated; and since Indians, by the Constitution as now in effect, and congressional enactments by the Congress, 8 U.S.C.A. § 1401, have had conferred on them all rights of citizenship, such amendment and congressional enactment carry all privileges granted others as citizens of the State, including the right or privilege to buy intoxicants.

Respondent contends that Indians are now citizens of the United States and therefore the Legislature has no power to classify, segregate, or discriminate against them, and that the statute prohibiting the sale of intoxicating liquors to Indians is arbitrary, discriminatory and unreasonable, and denies the Indians, as a class, the equal protection of the law.

Federal and state statutes prohibiting the sale of intoxicants to Indians are of early origin and were first enacted by colonies' legislative bodies. The first Federal control measure was enacted in response to a plea by an Indian Chief, Little Turtle, to President Jefferson, who complained that the whites were selling intoxicating liquor to Indians which pauperized and demoralized them and is reported to have said:

'It is the introduction of this fatal poison which keeps them [the Indians] poor. * * * Before anything can be done to advantage this evil must be remedied. * * * Since their [the Indians] intercourse with the white people and owing to the introduction of this fatal poison we have become less numerous and happy.' Am. State Papers, Vol. 7 (Indian Affairs, Class II, Vol. 1) (1789-1815, p. 655.) Ch. 17--Handbook of Fed. Ind. Law. 352.

At different times, subsequent to this complaint to Jefferson, various Federal laws were passed and regulations promulgated prohibiting and controlling the vending and distribution to Indians of intoxicants.

Without reviewing cases and texts covering the subject matter suffice to say that such prohibitions and interdictions have been by the courts universally upheld, generally on two theories; first, the power of Congress to regulate commerce with Indians and Indian tribes, Art. 1, Sec. 8, Cl. 3, U. S. Constitution; and second, the duty to protect Indians from well recognized weaknesses and to protect the people with whom they come in contact. United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192; United States v. Holliday, 3 Wall. 407, 18 L.Ed. 182; Brown v. United States, 9 Cir., 8 F.2d 433; 42 C.J.S., Indians, § 76 p. 791; 27 Am.Jur. 577, Sec. 55; 31 C.J. 535, Sec. 122.

The Federal statute in effect during recent times, 18 U.S.C.A. § 1154, now amended, prohibited the furnishing of intoxicating liquor:

'* * * to any 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 who is a ward of the Government under charge of any Indian superintendent, or to any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship * * *.'

This prohibition made it unlawful to sell intoxicating liquor to Indians, coming within the prescribed classes, regardless of the place in the United States where the sale is made. United States v. Miller, D.C., 105 F. 944; United States v. Holliday, supra; United States v. Osborn, D.C., 2 F. 58; Brown v. United States, supra; Mulligan v. United States, 8 Cir., 120 F. 98.

18 U.S.C.A. § 1154 was modified by Congress on August 15, 1953, and by the amendment it limited the provisions of the inhibition as follows:

'The provisions of sections 1154 * * * of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register.' 18 U.S.C.A. § 1161, Crimes & Criminal Procedure.

We shall not review further the history of Federal prohibition laws and regulations making it an offense, under prescribed conditions, to sell intoxicating liquors to Indians, except to say that such prohibition and interdictions were enacted for the protection of the Indians, often at the Indians' solicitation and request and to guard them from debasing influences and from being further imposed upon, cheated and wronged by their conquerors.

State statutes prohibiting the sale of intoxicating liquor to Indians where Federal jurisdiction was not exclusive were at an only time in American history enacted by the legislatures of many states, and were generally upheld as a proper exercise of police power to protect certain classes of persons liable to be injured morally or physically by its use. The historical background supports the conclusion that Indians come within such class. The Legislatures recognized that the protection of the class and those with whom they came in contact was an advisable and proper regulation. People v. Gebhard, 151 Mich. 192, 115 N.W. 54; 27 Am.Jur. 577, Sec. 55.

It is unnecessary to review the genetics or to indulge in a scientific analysis or discussion of anthropogeny to discover the reasons for the interdictions. Suffice to say that the historic background of laws prohibiting sale of intoxicants to Indians is well recognized and must now be considered as firmly established.

In an early case, United States v. Holliday, 1865, 3 Wall. 407, 18 L.Ed. 182, the Court held even though Indians had conferred upon them rights as electors or citizens of a state, the Congress had jurisdiction to pass legislation making it a crime to sell intoxicating liquors to them.

In People v. Bray, 105 Cal. 344, 38 P. 731, 27 L.R.A. 158, the defendant was prosecuted under a provision of California Penal Code, Sec. 397, making it a felony to sell intoxicating liquor to Indians. The defendant contended that it was not a violation to sell intoxicating liquor to an Indian who, at the time of the sale, was a citizen of the State, and further contended that a law which takes from one person on account of color or race any privilege which others are permitted and allowed to enjoy, is void. The Court rejected the contention and held that even though the particular person of Indian blood to whom the intoxicating liquor was sold was not a member of any tribe and was living in a state of civilization and not under the jurisdiction of the Federal Government in any degree, nevertheless the interdiction was a proper exercise of police power. This decision was followed in People v. Lemon, 105 Cal. XVII, 38 P. 905, and in People v. Goodrich, 105 Cal. XVII, 38 P. 954.

Similar legislation in Montana prohibiting the sale of intoxicants to Indians was attacked as unconstitutional in Territory v. Guyot, 9 Mont. 46, 22 P. 134, 136. The Court upheld the legislation saying:

'There is no limitation upon the authority of a territory to pass laws for the regulation and restriction of 'the sale of articles deemed injurious to the health or morals of the community.' The act under consideration is clearly within the police power of the territorial government, as defined by the courts, and is not inconsistent with the constitution and laws of the United States.'

In State v. Mamlock, 58 Wash. 631, 109 P. 47, the constitutionality of a statute similar to that of Idaho was challenged. The Court upheld the act and rejected the contention that the facts established no crime, even though the particular person to whom the intoxicating liquor was sold was a citizen of the State. The Court said:

'The validity of state laws prohibiting the sale of intoxicating liquors to certain classes of persons who are peculiarly liable to be injured morally or physically by their use * * *, has so often been affirmed by the courts that the question is no longer an open one. * * * That the American Indian falls within the classes thus defined, whether he be a citizen of the United States or otherwise, is...