United States v. Osborn
| Decision Date | 08 April 1880 |
| Parties | UNITED STATES v. OSBORN. |
| Court | U.S. District Court — District of Oregon |
Rufus Mallory, District Attorney, for the United States.
Defendant in propria persona.
Information for disposing of spirituous liquor to an Indian.
DEADY D.J.
This is an information filed by the district attorney against Frank Osborn, charging him with having disposed of spirituous liquor to an Indian, under the charge of an Indian agent contrary to section 2139 of the Revised Statutes.
The defendant pleaded not guilty, and submitted to be tried by the court without the intervention of a jury.
The evidence, in which there is no conflict, proves that the Indian in question belongs to one of the tribes on the Warm Spring Reservation, under charge of Indian Agent Capt. John Smith; that with the consent of the agent and his mother he has lived off the agency with Mr. Miller, near Eugene, in this state, for the past eight or ten years, as a domestic and was therefore commonly called 'Joe Miller;' that within a few months since he left the house of Mr. Miller and has been working in the neighborhood for some of the farmers, and occasionally making his home with an Indian living in the vicinity upon a portion of the public land under the homestead act, and called 'Indian Jim;' that this Indian belongs to one of the coast reservations but has not resided there for some fifteen years, and claims to be a citizen and voter of Oregon; that a short time since, and after Joe had left the Millers, he went to Eugene, a few miles distant from his former residence, and asked the defendant, who kept a drug store there, for a pint of alcohol.
The defendant knew the Miller family, and Joe, and as an Indian who lived with them and bore their name, and when Joe asked for the alcohol he asked him if he was Miller's boy, and Joe answered, 'yes;' whereupon, he sold him the liquor. Agent Smith has known of the whereabouts of this Indian Joe since he left the reservation, and claims the right to return him there whenever he thinks proper; and his mother is still living there.
Upon these facts and the authority of U.S. v. Holliday, 3 Wall. 418, there can be no doubt but that Joe is an Indian under charge of an agent appointed by the United States. In this case the Indian to whom the liquor was disposed lived upon a piece of land which he occupied in severalty, and voted at the elections, as he was authorized to do by the laws of the state of Michigan.
There appears to be an impression that Indians situated as Jim and Joe are--that is, who live off the reservation and among, and more or less after, the manner of white people-- are citizens and voters of the state, and therefore it is no crime to give them spirituous liquors. But this is a mistake. The Indians are not a portion of the political community called the and, although not foreign nations or persons, they have always been regarded and treated as distinct and independent political communities. Worcester v. The State of Georgia, 5 Pet. 515; the Cherokee Nation v. The State of Georgia, Id. 1.
What effect, if any, the act of March 3, 1871, (16 St. 566; Rev St. Sec. 2079,) which declares that no Indian tribe within the territory of the United States 'shall be acknowledged or recognized as an independent nation, tribe or power, with whom the United States may contract by treaty,' may have upon this question, it is not...
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