United States v. Nelson

• Decision Date: 01 January 1886
• Citation: 29 F. 202
• Parties: UNITED STATES v. NELSON.
• Court: U.S. District Court — District of Alaska

29 F. 202

UNITED STATES v. NELSON.

United States District Court, District of Alaska.

1886

DAWSON J.

Defendant was indicted at the May term, 1886, of the district court for selling distilled liquors in the town of Sitka, in the district of Alaska, contrary to the statutes of the United States made and provided against, etc. To this indictment defendant has demurred upon two grounds: (1) That the statute of the United States which it is alleged was violated, is unconstitutional and void; (2) that the indictment does not state facts sufficient to constitute an offense against the statute.

The question presented is, has congress the constitutional power to prohibit the importation, manufacture, and sale of distilled spirits in the district of Alaska?

It is earnestly and ably argued by defendant's counsel that the act of congress of July, 1868, (Gen. St. Sec. 1955,) is violative of the fundamental principles of free government and therefore void; for the reason alleged in the argument that congress, in its peculiar relation to Alaska, and with the restricted power it possesses in regard thereto, has no constitutional right to enact a prohibitory liquor law for this territory.

It has been judicially held (see Kie v. U.S., 27 F. 351) that Alaska has been since 1867, and now is, a district of our country under the exclusive jurisdiction of the United States, but I know of no case in which it has been decided that Alaska is in no sense 'Indian country.' It was held by this court in the Slave Case, in April last, that only as to the prohibited commerce mentioned in the sections referred to, being section 1955 of the act of July, 1868, and sections 20 and 21 of the intercourse act of 1834, and section 14 of the act of May, 1884, could Alaska be regarded as Indian country. That conclusion was based upon the Opinions of Attorneys General, vol. 14, p. 290, and vol. 16 p. 141, and I am unable to find anything in the opinion of Justice DEADY in the Kie Case in conflict with the conclusion there reached; for the learned judge says:

'As it rests with congress to say whether a district of country shall be considered 'Indian country,' so far as the intercourse between the aborigines thereof and other persons is concerned, this legislation, in my judgment, by at least a reasonable, if not a necessary, implication, is equivalent to a declaration that Alaska is not to be considered 'Indian country' only so far as concerns the introduction and disposition of spirituous liquors therein.'

It may well be said that Alaska is not 'Indian country,' in the conventional sense of the word; but it does not follow that it is not 'Indian country,' so far as congress may choose to make it such. True, the government has never treated with the Indians of Alaska; but in the third article of the treaty of March 3, 1867, there is express and specific reservation of power to the United States to make laws and regulations in relation to the aboriginal tribes. Congress being the only law-making power of the government under the constitution, that instrument has sharply defined the subjects upon which congress may legislate, and specifically prescribed the duties of the legislative branch of the government. Section 3 of article 4 of the constitution, one of the sections classifying the subjects upon which congress may legislate, says: 'The congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States.'

It will be observed from this section that the territory or unpatented lands then within the territorial boundaries of the United States, and which did not belong to the original individual states, was intended to be, and upon the ratification and adoption of the constitution did become, the absolute property of the United States, subject only to the right of occupancy by the Indians. But the United States possessed the right to extinguish the Indian title of occupancy either by conquest or purchase. See 1 Kent, Comm. lect. 12. The treaty-making power of the government is vested by section 2 of article 2 of the constitution in the president, by and with the advice and consent of the senate. This power necessarily implies the right to purchase new territory; and when the power has been exercised, and territory purchased, the title, immediately upon an exchange of ratification, vested in the United States. American Ins. Co. v. Canter, 1 Pet. 511.

Such was the recognized doctrine in the treaty of peace with Great Britain, and by subsequent cessions from France and Spain, and by cessions from the individual states. But an effort was made to restrict and limit the powers of the government over the territories of Louisiana and Florida. The reason for the strenuous efforts to limit and restrict the powers of the government in relation to those territories is a matter of history, but the institution about which that controversy arose has passed away, and is not longer a question of contention, either in the political or juridical affairs of the government.

Counsel refers to and quotes the following from the opinion of the court in the case of American Ins. Co. v. Canter, 1 Pet. 511:

'In the mean time Florida continues to be a territory of the United States government by that clause of the constitution which empowers congress to make all needful rules and regulations respecting the territory or other property of the United States. Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a state, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source from which the power is derived, the possession of it is unquestionable.'

It is then argued that because the source of power to make all needful rules and regulations respecting the territory or other property of the United States was not decided in that case, that the power exists only as the inevitable consequence of the right to acquire territory; and the celebrated Dred Scott Case, 19 How. 393, is cited and relied upon by counsel. But the conclusion reached by the majority of the court in that case, holding that the power to make all needful rules and regulations existed only as the inevitable consequence of the right to acquire territory, and that section 3 of article 4 of the constitution had reference only to the then territory of the United States, has never met with the united approval of the American bench and bar. Two reasons may be assigned for the lack of approval of the doctrine of that case: First, the decision was by a divided bench, some of the ablest jurists then on the bench, in exhaustive opinions, dissenting from the conclusions reached by the majority; secondly, the case involved a vital political question, upon which the American people were unmistakably and radically divided in sentiment.

Article 1 of the treaty by which Alaska was ceded to the United States is as follows:

'His majesty, the emperor of all the Russias, agrees to cede to the United States, by this convention, immediately upon the exchange of the ratifications thereof, all the territory and dominion now possessed by his said majesty on the continent of America, and in adjacent islands; the same being contained within the geographical limits herein set forth. ' See Pub. Treaties U.S. 671.

Upon the ratification by the president of the United States, by and with the advice and consent of the senate, on the one part, and on the other by his majesty, the emperor of all the Russias, and an exchange of those ratifications within three months from the date of the treaty, the title to the soil in Alaska vested in the United States, and remains in the United States by virtue of the treaty with Russia.

Judge STORY, in his Commentaries on the Constitution, in examining the section now under consideration, has deduced the following conclusion from the very case referred to and quoted from by counsel, in 1 Pet.:

'As the general government possesses the right to acquire territory either by conquest or by treaty, it would seem to follow, as an inevitable consequence, that it possesses the power to govern what it has so acquired. The territory does not, when so acquired, become entitled to self-government, and it is not subject to the jurisdiction of any state. It must consequently be under the dominion and jurisdiction of the Union, or it would be without any government at all. * * * In cases of confirmation or cession by treaty, the acquisition becomes firm and stable, and the ceded territory becomes a part of the nation to which it is annexed, either on terms stipulated in the treaty, or on such as its new masters may impose. ' Story, Const. par. 1324.

There can, I think, be no question as to the authority of congress to enact such forms of territorial government within the territories of the United States as they may choose or deem best, and not in conflict with the constitution and laws of the United States. Possessing the power to erect a territorial government for Alaska, they could confer upon it such powers, judicial and executive, as they deem most suitable to the necessities of the inhabitants. It was unquestionably within the constitutional power of congress to withhold from the inhabitants of Alaska the power to legislate and make laws. In the absence, then, of any law-making power in the territory, to what source must the people look for the laws by which they are to be governed? This question can admit of but one...