United States v. One 1941 4-Door Buick Sedan, Civ. No. 583.

• Decision Date: 30 March 1946
• Docket Number: Civ. No. 583.
• Parties: UNITED STATES v. ONE 1941 4-DOOR BUICK SEDAN, etc.
• Court: U.S. District Court — District of Minnesota

64 F. Supp. 905

UNITED STATES v. ONE 1941 4-DOOR BUICK SEDAN, etc.

Civ. No. 583.

District Court, D. Minnesota, Fifth Division.

March 30, 1946.

Victor E. Anderson, U. S. Atty., and William P. Murphy, Asst. U. S. Atty., both of St. Paul, Minn., for plaintiff.

Arthur M. Clure, of Duluth, Minn., for intervening claimant, Minnesota Nat. Bank of Duluth.

DONOVAN, District Judge.

Libelant commenced a proceeding pursuant to Title 25, U.S.C.A., Sections 246 and 247, for the condemnation and forfeiture of the automobile above described. Said automobile was seized February 3, 1945, within the territorial limits of the Bois Forte Indian Reservation, also known as the Nett Lake Indian Reservation.

Elmer Bernard Herhusky, the owner of the automobile, was taken into custody and convicted on his plea of guilty for "unlawfully introducing and possessing four-fifth quart bottle of intoxicating liquor on Indian reservation", and used the automobile on said date for that purpose.

The Minnesota National Bank of Duluth, a national banking association under the laws of the United States, intervened and by answer alleged that intervenor, on or about July 28, 1944, purchased a conditional sales contract from Tormoen Motor Sales Company, the terms of which required payment by said Elmer Bernard Herhusky of a purchase price of $1739.90, of which $530 was payable on July 25, 1944, the date of said contract, and the balance "in fifteen monthly installments of $80.66". The contract was recorded in the office of the Register of Deeds of Koochiching County, Minnesota, on July 28, 1944. At the time of said seizure, there remained due and unpaid under the terms of said contract the sum of $724.90.

Intervenor asks "in the event a forfeiture is ordered that said vehicle be sold, and that the interest in and the amount of loss of * * * claimant be duly determined herein".

A summary of the facts leading to the arrest of Herhusky and the seizure of said vehicle is as follows:

Herhusky resided at Nett Lake and was employed there at the Indian Co-operative or Trade Store. Herhusky and his wife lived in a lean-to or shed on the westerly side of the store. A barn, used as a garage, was located on the rear of the government lot containing said buildings.

At about 8 p. m., February 3, 1945, Herhusky, driving said automobile from Orr, Minnesota, to his home on the reservation, arrived on said lot and parked near the garage door. An officer of the Indian Service named H. P. Davis had arrived just ahead of Herhusky. Davis drove into the "enclosure back of the Traders' Store, which also includes the dance hall", and remained in his car for the purpose of policing a dance, about to commence, and which Davis expected would be attended by Indians.

Davis testified that he had reasons to be suspicious of Herhusky because of complaints made to the effect that Herhusky was in the habit of taking Indians away from the Reservation and returning them thereto in a drunken condition. Describing the situation leading to the seizure of the automobile in question, Officer Davis said: "We drove up there and parked and stayed in the automobile. It was somewhat of a stormy night and we stayed in the automobile. We were there for approximately 15 minutes when an automobile came in through the opening, turned up and stopped near a garage. From there we went over to the automobile. We recognized it as belonging to Mr. Herhusky. We went up to the automobile, to the left side. I opened the front door of the automobile near the driver and found Mr. Herhusky under the wheel — sitting in the front seat under the wheel. When I opened the door I noticed a distinct odor of liquor. I introduced myself as an officer of the Indian Service and I informed him that we had had numerous reports that he had been taking Indians out, off of the reservation, and securing liquor and bringing them back intoxicated, and had been introducing liquor on the reservation. I told him we were going to search his automobile — asked him first if he had any intoxicating liquor with him. He didn't answer that question. It was dark and I turned my flashlight to the back part of the automobile and I noticed a package lying on the back cushion of the back seat, containing two quart bottles of whiskey. The necks of the bottles were sticking out of the sack. I took those two bottles and then went around to the other side and looked through the front part of the automobile and found another quart bottle, very near full, in the glove compartment of the automobile. I placed Mr. Herhusky under arrest and informed him that we would have to seize the automobile. After that, why I asked him to get out of his automobile, which he did, and he produced the keys to the car on my request. I took Mr. Herhusky over to my automobile, which was parked just in back of this car, and asked him his name, age, and other questions about himself that is necessary for my report. I also asked him if he did not know that it was a violation of the law to bring liquor on to the reservation. I also asked him if he had received a letter advising him that it was a violation of the law from Superintendent Scott some time ago. He stated that he had received the letter from Mr. Scott. I don't recall his answer as to knowing of the violation but he admitted receiving the letter from Mr. Scott. * * * Mr. Scott at that time was the Superintendent of the Consolidated Chippewa Agency and located at Cass Lake. * * * I asked him (Herhusky) what he intended to do with the liquor that he had in his possession and he stated that he was going to use it himself. I made the statement that three quarts, it seemed to me, was a lot of liquor for his own use and asked him if he brought it in for anyone else, or was going to distribute it to anyone around the dance. I complained that three quarts was too much liquor if he just wanted a little drink himself; that it was quite a quantity to bring in when he went in and out of the Nett Lake Agency to the railroad or to Orr once to three times a week for freight. He didn't answer the question. He insisted that the liquor was his. He said it belonged to him; that he was going to use it for himself."

It is undisputed that the premises above described, and the...