Townsend v. United States

• Decision Date: 17 April 1920
• Docket Number: 5424.
• Citation: 265 F. 519
• Parties: TOWNSEND v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

265 F. 519

TOWNSEND v. UNITED STATES.

No. 5424.

United States Court of Appeals, Eighth Circuit.

April 17, 1920

G. K Sutherland, of Hominy, Okl. (S. H. Harris and J. I. Howard both of Oklahoma City, Okl., and Paul G. Darrough, of Hugo Okl., on the brief), for plaintiff in error.

Frank E. Ransdell, Asst. U.S. Atty., of Oklahoma City, Okl. (John A. Fain, U.S. Atty., of Lawton, Okl., on the brief), for the United States.

Before SANBORN, Circuit Judge, and LEWIS and MUNGER, District Judges.

MUNGER District Judge.

From a judgment of forfeiture and order of sale of an automobile this writ of error is prosecuted. An information was filed against this vehicle, charging that it was used by Dewey Bales and John Ke-mo-hah in introducing intoxicating liquors into the Indian country and upon two allotments of Osage Indians, in Osage county, Okl. The plaintiff in error intervened in the suit, alleging that she owned the automobile, that she had loaned it that day to her brother John Ke-mo-hah, to drive about the town of Hominy, Okl., and she denied that it was used in introducing intoxicating liquors into the Indian country and on the allotments, and alleged that it was seized on the public highway in Osage county.

The case was tried by the court on a written agreement and stipulation of facts, from which it appeared that on June 1, 1918, an officer of the Indian Bureau seized and searched this automobile and found in it a quart of champagne, which had been transported by means of the automobile from some other place in the county not on these allotments by John Ke-mo-hah, who had charge of the car at the time. The officer had followed this automobile for about four miles from the town of Hominy, and it had turned around and was starting back in an easterly direction, when it was stopped and searched. An Osage Indian had a homestead allotment embracing the northwest quarter of the northwest quarter of section 24, and another had a homestead allotment embracing the southwest quarter of the southwest quarter of section 13, which were held under trust patents by them; the title still being held in trust by the United States. The section line between these two tracts of land runs east and west, and at the time the automobile was seized and searched it was on a 33-foot highway along this section line between these two allotments, and it had not been off of the section line highway. The intervener owned the automobile, and had loaned it to her brother to drive in and about the town of Hominy; but she did not own the champagne, or know of or consent to its transportation.

The errors assigned challenge the sufficiency of the facts stipulated to support the judgment, and that question is reviewable, even though the trial was to the court, as the agreement for such mode of trial was in writing. Lehnen v. Dickson, 148 U.S. 71, 73, 13 Sup.Ct. 481, 37 L.Ed. 373; Fellman v. Royal Ins. Co., 185 F. 689, 690, 107 C.C.A. 637. The question presented on the facts is whether the automobile was used in introducing intoxicating liquor into the Indian country. By section 1 of the Act of Congress of January 30, 1897 (29 Stat. 506; section 4137 U.S.Comp.Stats.Ann. 1916), it is made an offense for any person to introduce any vinous or intoxicating liquor into the Indian country, which term includes any Indian allotment while the title thereto is held in trust by the government. By section 2140, Revised Statutes (section 4141, U.S. Comp. Stats. Ann. 1916), provision is made for the seizure and forfeiture under certain circumstances of the boats, teams, wagons, and sleds used in conveying any spirituous liquor or wine into the Indian country in violation of law. By an Act of Congress of March 2, 1917 (39 Stat. 969, 970; section 4141a U.S.Comp.Stats. 1918, Comp. St. Ann. Supp. 1919):

'Automobiles or any other vehicles or conveyances used in introducing, or attempting to introduce, intoxicants into the Indian country, or where the introduction is prohibited by treaty or federal statute, whether used by the owner thereof or other person, shall be subject to the seizure, libel, and forfeiture provided in section twenty-one hundred and forty of the Revised Statutes of the United States.'

By another provision of the Act of Congress of May 18, 1916 (39 Stat. 134; section 4144a, U.S. Comp. Stats. Ann. 1916):

'The provisions of sections twenty-one hundred and forty and twenty-one hundred and forty-one of the Revised Statutes of the United States shall also apply to beer and other intoxicating liquors named in the act of January thirtieth, eighteen hundred and ninety-seven (Twenty-Ninth Statutes at Large, page five hundred and six), and the possession by a person of intoxicating liquors in the country where the introduction is prohibited by treaty or federal statute shall be prima facie evidence of unlawful introduction.'

The plaintiff in error contends that the public highway, the place where the search and seizure were made, was not Indian country, and hence no introduction of liquor into Indian country has been proven. The criterion to determine whether this place had ceased to be Indian country is whether the Indian title had or had not been extinguished. Bates v. Clark, 95 U.S. 204, 208, 24 L.Ed. 471; Ex parte Crow Dog, 109 U.S. 556, 561, 3 Sup.Ct. 396, 27 L.Ed. 1030; Dick v. United States, 208 U.S. 340, 352, 28 Sup.Ct. 399, 52 L.Ed. 520; United States v. Celestine, 215 U.S. 278, 285, 30 Sup.Ct. 93, 54 L.Ed. 195; Donnelly v. United States, 228 U.S. 243, 269, 33 Sup.Ct. 449, 57 L.Ed. 820, Ann. Cas. 1913E, 710; United States v. Pelican, 232 U.S. 442, 449, 34 Sup.Ct. 396, 58 L.Ed. 676; Evans v. Victor, 204 F. 361, 365, 122 C.C.A. 531. The Allotment Act relating to these Osage Indian lands, approved June 28, 1906 (34 Stat. 539), provided for the distribution of the lands to the members of the tribe, but contained this provision relating to highways:

'Sec. 10. That public highways or roads, two rods in width, being one rod on each side of all section lines, in the Osage Indian reservation, may be established without any compensation therefor.'

There can be no question that the Indian title is extinguished when the United States has made a grant of the title and of the right of possession, either expressly or as the necessary result of the statute, so that the jurisdiction of the state is full and complete. Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U.S. 114, 117, 14 Sup.Ct. 496, 38 L.Ed. 377; Dick v. United States, 208 U.S. 340, 352, 28 Sup.Ct. 399, 52 L.Ed. 520; Evans v. Victor, 204 F. 361, 366, 122 C.C.A. 531; United States v. Four Bottles Sour-Mash Whisky (D.C.) 90 F. 720, 723.

In case of the grant of a right of way through the Indian country, when title to the fee has been granted, and the Indians' right of possession has been surrendered or otherwise extinguished, the Indian title ceases. Buttz v. Northern Pacific Railroad, 119 U.S. 55, 69, 70, 7 Sup.Ct. 100, 30 L.Ed. 330; Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U.S. 114, 117, 14 Sup.Ct. 496, 38 L.Ed. 377; Clairmont v. United States, 225 U.S. 551, 556, 32 Sup.Ct. 787, 56 L.Ed. 1201; United States v. Lindahl (D.C.) 221 F. 143, 144.

The grant of a right of way over the lands does not necessarily imply that the Indian title to the soil is terminated. In the case of United States v. Soldana, 246 U.S. 530, 38 Sup.Ct. 357, 62 L.Ed. 870, the validity of an indictment charging an introduction of liquor into the Indian country dependent upon the construction given to a grant of the right of way to the railway company through the Crow Indian reservation, or upon the answer to the question, as stated by the court:

'Did the statutes except from the reservation the land on which the railroad was built and extinguish the Indian title, or did they merely give to the company a right of way or other limited interest in the land on which to construct

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