234 U.S. 422 - Johnson v. Edwin Gearlds L J E

This direct appeal is taken under § 238, Judicial Code (act of March 3, 1911, 36 Stat. at L. 1157, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 228), which allows such an appeal (inter alia) 'in any case that involves the construction or application of the Constitution of the United States; in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question.' Our jurisdiction is invoked upon three grounds: (a) that the construction or validity of article 7 of the treaty of 1855 [10 Stat. at L. 1169] is drawn in question; (b) that the construction or application of the Constitution is involved; (c) that the construction of the treaties of 1865 and 1867 [13 Stat. at L. 693, 16 Stat. at L. 719] is drawn in question. There is a motion to dismiss, based upon the ground that none of these contentions is well founded. We think the motion must be denied. The court below, in overruling the demurrer, based its decision upon the ground that the treaty of 1855 was necessarily repealed by the admission of the state of Minnesota into the Union upon an equal footing with the original states. This decision was based upon the bill as originally framed, but the amendments made no change affecting this ground of decision; and it is evident from the record that, in granting the final decree, the court adhered to the view expressed in overruling the demurrer. It is insisted by appellants, with some force, that this view was based upon grounds that involved the construction or application of the Constitution of the United States; and that for this reason the direct appeal lies. We find it unnecessary to consider the point, since it seems to us that the entire case for complainants rests at bottom upon grounds that involve the construction of the three treaties referred to, especially that of 1855.

The bill, either in its original or its amended form, did not expressly assert as a ground for relief that the treaty of 1855 had been repealed, in whole or in part, by the admission of the state. On the contrary, relief was prayed upon the ground that the second clause of article 7 (that which related to the liquor traffic, and was to remain in force until otherwise provided by Congress) applied only to the ceded territory, and not to the reservations set apart within that territory; that by the treaty of 1865 those reservations were ceded to the United States, and ceased to be Indian country in any sense; and that by the subsequent cession in the treaty of 1867 the reservation of 1865 in turn was vested in the United States, and therefore ceased to be Indian country; and finally, that article 7 of the treaty of 1855 had expired at the time of the acts complained of in the bill (1910) by virtue of the provisions of the act of January 14, 1889, and the cessions made to the United States by the Chippewas of Minnesota pursuant to that act, and because of the changes wrought by time in the character of the territory included in the treaty of 1855, and the status of the Indians therein. These grounds of relief are reiterated in the amended bill, and the averments of the amended answer are calculated to meet them. And the principal force of the arguments on both sides is addressed to the construction of the several treaties referred to. For this reason, if for no other, the direct appeal is well taken.

Upon the merits, we may well begin with the disputed portion of the treaty of 1855:

'Article 7. The laws which have been or may be enacted by Congress, regulating trade and intercourse with the Indian tribes, to continue and be in force within and upon the several reservations provided for herein; and those portions of said laws which prohibit the introduction, manufacture, use of, and traffic in, ardent spirits, wines, or other liquors, in the Indian country shall continue and be in force, within the entire boundaries of the country herein ceded to the United States, until otherwise provided by Congress.'

The reference to previous laws clearly points to the act of June 30, 1834, entitled, 'An Act to Regulate Trade and Intercourse with the Indian Tribes, and to Preserve Peace on the Frontiers' (4 Stat. at L. 729, chap. 161), and kindred acts. The act of 1834 was a revision of previous enactments, and contains many provisions for the regulation of trade and intercourse. Its 20th and 21st sections (4 Stat. at L. 732, chap. 161) prohibit the introduction or manufacture of, or traffic in, spirituous liquor or wine within the Indian country. From them, §§ 2139, 2140, and 2141, Rev. Stat. were derived.

By the 1st section of the act of 1834, the term 'Indian country' was defined, for the purposes of that act, as meaning land to which the Indian title had not been extinguished. At the making of the treaty, therefore, the restriction respecting the liquor traffic was in force within the ceded area, because until then the Indian title had not been extinguished. It was the evident purpose of article 7 to continue the restriction in force in the ceded territory, notwithstanding the extinguishment of the Indian title. Such stipulations were not unusal. A contemporaneous treaty with the Winnebagoes contained a similar one. 10 Stat. at L. 1174, art. 8. And it has been uniformly recognized that such stipulations amount in effect to an amendment of the statute, so as to make the restriction effective throughout the ceded territory. United States v. 43 Gallons of Whisky (United States v. Lariviere) 93 U. S. 188, 196, 23 L. ed. 846, 847; Bates v. Clark, 95 U. S. 204, 208, 24 L. ed. 471, 472.

The fundamental contention that underlies the entire argument for complainants is that the first part of article 7 had for its object that the laws of Congress, present and future, regulating trade and intercourse with the Indian tribes, were to continue and be in force within the reservations created by the treaty; while the latter portion of the article had for its object to keep in force in the ceded country—which, it is said, excludes the reservations—those portions of the laws that prohibit the introduction, manufacture, use of, and traffic in ardent spirits, etc., in the Indian country until otherwise provided by Congress; the particular insistence being that the latter clause applies merely to the so-called ceded territory, and not to the lands included within the reservations.

With this construction of the treaty we cannot agree. We think it rests upon a misconception of the fair import of the terms employed in article 7, whether considered alone or together with the context, and fails to give due effect to the reason and spirit of the stipulation.

It seems to us that in the qualifying clause—'within the entire boundaries of the country herein ceded to the United States'—the words 'entire boundaries' are equivalent to 'outer boundaries,' and therefore include the reservations that lie within. And this agrees with the context; for, if we turn back to see what is 'herein ceded,' we find that by the terms of article 1 the cession is of all the right, title, and interest of the Indians in the lands owned and claimed by them, included within designated boundaries (this being the great tract in question), and then, in a separate clause, a relinquishment and conveyance of all right, title, and interest of the Indians in any other lands in the territory of Minnesota or elsewhere. There is here no suggestion that the reservations are excepted out of the cession. On the contrary, article 1 in terms vests the Indian title in the United States as to all the described lands, including the reservations mentioned in Article 2. The latter article reserves a number of comparatively small and isolated tracts 'for the permanent homes of the said Indians.' Of these, all are within the outer boundaries of the cession excepting the Mille Lac Reservation, which lies outside. Reading the two articles together, it is evident that the framers of the treaty intended that the reservations themselves should become the property of the United States, subject only to a trust for the occupancy of the Indians. This is placed beyond controversy when we observe that by the latter part of article 2 it was provided that the President of the United States might cause the reservations or portions thereof to be surveyed; assign a reasonable quantity, not exceeding 80 acres in any case, to each head of a family or single person over twenty-one years of age for his or their separate use; issue patents for the tracts so assigned, which tracts were to be exempt from taxation, levy, sale, or forfeiture, and not to be aliened or leased for a longer period than two years at one time, unless otherwise provided by the legislature of the state with the assent of Congress; not to be sold or aliened in fee for a period of five years after the date of patent, and not then without the assent of the President; and that, prior to the issue of the patents, the President might make rules and regulations respecting the disposition of the lands in case of the death of the allottee, etc.

The subdivision of the reservations, allotments to individual Indians, and the ultimate alienation of allotments, being thus in view at the making of the treaty, it is unreasonable to give such a construction to the stipulation contained in the second portion of article 7 as would defeat its object, by removing the restriction from scattered parcels of land whenever it should come to pass that the Indian title therein was extinguished. The restriction would be of little force unless it covered the entire ceded area en bloc, so that no change in the situation of the reservations by way of extinguishing the residue of Indian title or otherwise should operate to limit its effect. And so, upon the whole, we deem it manifest that the second clause of article 7 dealt with the entire ceded country, including the reservations, as country proper to be subjected to the laws relating to the introduction, etc., of liquor into the Indian country until otherwise provided by Congress. It was evidently contemplated that the bands of Indians, while making their permanent homes within the reservations, would be at liberty to roam and to hunt throughout the entire country, as before. The purpose was to guard them from all temptation to use intoxicating liquors.

That it is within the constitutional power of Congress to prohibit the manufacture, introduction, or sale of intoxicants upon Indian lands, including not only lands reserved for their special occupancy, but also lands outside of the reservations, to which they may naturally resort, and that this may be done even with respect to lands lying within the bounds of a state, are propositions so thoroughly established, and upon grounds so recently discussed, that we need merely cite the cases. Perrin v. United States, 232 U. S. 478, 483, 58 L. ed. ——, 34 Sup. Ct. Rep. 387; United States v. 43 Gallons of Whisky (United States v. Lariviere) 93 U. S. 188, 195, 197, 23 L. ed. 846, 848; Dick v. United States, 208 U. S. 340, 52 L. ed. 520, 28 Sup. Ct. Rep. 399.

And we cannot agree with the District Court that article 7 of the treaty of 1855 was repealed by the Minnesota enabling act, or by the admission of that state into the Union upon equal terms with the other states. Neither the enabling act nor the act of admission contains any reference to the treaty, although the latter was so recent that it can hardly have been overlooked. The court seems to have considered that the continued existence of article 7, so far as it prohibited the introduction, manufacture, and sale of liquors within the ceded country outside of the reservations, was inconsistent with the 'equal footing' clause of the enabling and admitting acts. That there is no such inconsistency results very plainly, as we think, from the reasoning and authority of the cases above cited. The court deemed that United States v. 43 Gallons of Whisky (United States v. Lariviere) 93 U. S. 188, 196, 23 L. ed. 846, 847, and Dick v. United States, 208 U. S. 340, 52 L. ed. 520, 28 Sup. Ct. Rep. 399, were distinguishable upon the ground that in each of those cases the treaty under consideration was made after the state had been admitted into the Union. But if the making of such a treaty after the admission of the state is not inconsistent with the 'equal footing' of that state with the others,—as, of course, it is not, it seems to us to result that there is nothing in the effect of 'equal footing' clauses to operate as an implied repeal of such a treaty when previously established.

In Ex parte Webb, 225 U. S. 663, 56 L. ed. 1248, 32 Sup. Ct. Rep. 769, we had to deal with the effect of the Oklahoma enabling act upon a previous statute (act of March 1, 1895, chap. 145, § 8, 28 Stat. at L. 693), which prohibited (inter alia) the 'carrying into said [Indian] territory any of such liquors or drinks,' in view of the fact that the enabling act itself required that the Constitution of the new state should prohibit the manufacture, sale, or otherwise furnishing of intoxicating liquors within that part of the state formerly known as the Indian territory; and we held that in view of the existing treaties between the United States and the Five Civilized Tribes, and because the enabling act and the Constitution established thereunder dealt only with the prohibition of the liquor traffic within the bounds of the new state, the act of 1895 remained in force so far as pertained to the carrying of liquor from without the new state into that part of it which was the Indian territory.

In United States v. Wright, 229 U. S. 226, 57 L. ed. 1160, 33 Sup. Ct. Rep. 630, we held that the prohibition against the introduction of intoxicating liquors into the Indian country, found in § 2139, Rev. Stat., as amended by the acts of July 23, 1892, chap. 234, 27 Stat. at L. 260, and January 30, 1897, chap. 109, 29 Stat. at L. 506, was not repealed, with respect to intrastate transactions, by the Oklahoma enabling act, in spite of the provision respecting internal prohibition contained therein, as already mentioned.

Upon the whole, we have no difficulty in concluding that article 7 of the treaty of February 22, 1855, was not repealed by the admission of Minnesota into the Union.

We come, therefore, to the principal contention of complainants and appellees. which is that the article was repealed by the effect of the treaties of 1865 and 1867. The argument in support of this contention may be outlined as follows: that by the earliest of the three treaties the several bands of Indians ceded to the United States the great tract of approximately 21,000 square miles, but excepted from that cession the several reservations created for the Mississippi bands and for the Pillager and Lake Winnibigoshish bands; that when the treaty of 1865 was made, the Mississippi bands were the owners of their reservations within the exterior limits of the cession of 1855, which reservations were not covered by the second portion of article 7, but were subject to all of the laws of the United States regulating commerce and intercourse with the Indian tribes, simply because of being Indian country in fact; that by the treaty of 1865 the Mississippi bands ceded outright to the United States these reservations, and in return the United States ceded to them the tract of territory already mentioned (including Bemidji and the country surrouding it), excepting those portions included within the reservations of the Pillager and Lake Winnibigoshish bands; and that when, in 1867, in return for the White Earth Reservation, the Mississippi Chippewas receded to the United States the greater portion of the tract set apart for them in 1865, they ceded the same title and the same right and power over the lands that the three original tribes would have had; that is to say, they ceded them free and clear of article 7 of the treaty of 1855.

It will at once be observed that the argument rests at bottom upon the erroneous construction to which we have already called attention; viz., that the second portion of article 7 did not apply to the reservations that were within the exterior limits of the ceded territory. We repeat that, in our opinion, the restriction applied to all the territory that was included within the terms of the cession; as much to those portions set apart for reservations as to the surrounding territory. There was nothing in the treaty of 1865, therefore, to make the receded reservations unrestricted territory; nor was there anything in the treaty of 1867 to remove the restriction from the territory then receded. Reading the series of treaties together, it is plain enough, we think, that the contracting parties, in all that was done, were resting upon the plain language of the second part of article 7, which declared that the laws relating to the introduction, etc., of liquor in the Indian country, should continue in force within the entire boundaries of the country in question until otherwise provided by Congress.

Finally, it is contended that article 7 of the treaty of 1855 had been superseded at the time of the acts complained of in the bill (1910) by virtue of the provisions of the Nelson act of January 14, 1889 (25 Stat. at L. 642, chap. 24), and the cessions made to the United States by the Indians pursuant to that act, and by reason of the change in the character of the territory included in the treaty of 1855 and the status of the Indians therein.

As already pointed out, this act provided that commissioners to be appointed by the President should negotiate with the different bands of Chippewas in the state of Minnesota for the complete cession and relinquishment of their title and interest in all their reservations in the state, except so much of the White Earth and Red Lake Reservations as was not required for allotments, and that acceptance and approval of such cession and relinquishment by the President should be deemed full and ample proof of the cession, and should operate as a complete extinguishment of the Indian title without other or further act or ceremony.

From the averments of the amended bill and answer it is not easy to gather a precise statement of the present situation of the Indian lands and of the Indians themselves, so far as it affects the question before us. Some reference is made to the situation at the Red Lake Reservation; but since it is not clear that the restriction contained in the treaty of 1855 was intended for the protection of the Indians within that reservation, we prefer to confine our attention to the situation as it existed in 1910 within the boundaries of the great tract that was the subject of the cession of 1855. Within those bounds there would seem to be remaining only fragments of the White Earth and Leech Lake Reservations; both reservations being in process of allotment under the acts of February 8, 1887 (24 Stat. at L. 388, chap. 119), and of January 14, 1889 (25 Stat. at L. 642, chap. 24), and amendatory acts. Of the lands that have been allotted, a considerable portion are still held in fee by the United States, and are nonalienable by the allottees until the expiration of the trust period. Upon the White Earth Reservation, and also at Leech Lake, the government maintains an Indian agency and superintendent, as well as Indian schools. At the White Earth agency, 5,600 Indians are carried upon the annuity rolls; at Leech Lake, 1,750 Indians. The majority of these reside upon lands embraced within the original reservation, and they are the same Indians, or descendants of the same, that were parties to the treaties of 1855, 1865, and 1867. In consequence of their elevation to the plane of citizenship by the operation of the allotment acts, tribal relations have, for most purposes, ceased to exist, but are recognized for the purpose of the distribution of annuities under the Nelson act. And it is admitted that for purposes of business, pleasure, hunting, travel, and other diversions, these Indians traverse parts of the region comprised in the cession of 1855, outside of the reservations, and thus visit the towns, villages, and cities in the territory, including Bemidji. On the other hand it is admitted that their visits to Bemidji are infrequent, and that there are no Indian habitations within a range of 20 miles in any direction from that city. And, as pointed out in the prefatory statement, the diminished Red Lake Reservation is admittedly surrounded by a strip of land, approximately 15 miles in width, which never was subject to the treaty of 1855, and upon which saloons are maintained in close proximity to that reservation. This strip extends along the northerly boundary of the cession of 1855, which is perhaps 10 or 12 miles north of Bemidiji.

The argument for treating the restriction of 1855 as no longer in force rests not upon any denial of the fact that there are some thousands of Indians at the White Earth and Leech Lake Agencies, who are still more or less under the guardianship of the government, and for whose protection the liquor restriction ought to be maintained, but rather upon the fact that these Indians are surrounded by territory in which liquor is lawfully obtainable. In support of this, it is said that the former Mississippi reservations ceded to the United states in 1865 are unrestricted territory; that so much of the Leech Lake and Lake Winnibigoshish Reservations as were conveyed to the United States in 1890 are such territory; that every allotment from either of these reservations as to which the trust period has expired is such territory, and that land sold to white men in the reservations is such territory. It will be observed, again, that each of these contentions rests upon the fundamental error that the reservations mentioned in the treaty of 1855 are not within the liquor restriction of article 7.

In view of the interpretation we have placed upon that article, it seems to us that the contention as to changed conditions must be based not upon the supposed fact that the tract covered by the cession of 1855 'is already dotted with wet territory,' but rather upon the question whether the restriction entered into more than half a century ago, when the country was a wilderness—ought to be treated as still in force, in view of the small number of Indians entitled to protection, as compared with the large population of whites who now form the great majority of the inhabitants, and in view of the high state of civilization and development of the territory in question.

In Perrin v. United States, 232 U. S. 478, 486, 58 L. ed. ——, 34 Sup. Ct. Rep. 387, we had to deal with a somewhat similar question. That was a review of a conviction for unlawfully selling intoxicating liquors upon ceded lands formerly included in the Yankton Sioux Indian Reservation in the state of South Dakota. The reservation was created in 1858, and originally embraced 400,000 acres. A considerable part of it was allotted in severalty to members of the tribe under the act of 1887, the allotments being in small tracts scattered through the reservation. By an agreement ratified and confirmed by Congress August 15, 1894 (28 Stat. at L. 286, 314, chap. 290), the tribe ceded and relinquished to the United States all the unallotted lands, and by article 17 of the agreement it was stipulated: 'No intoxicating liquors nor other intoxicants shall ever be sold or given away upon any of the lands by this agreement ceded and sold to the United States, nor upon any other lands within or comprising the reservations of the Yankton Sioux or Dakota Indians as described in the treaty between the said Indians and the United States, dated April 19th, 1858 [11 Stat. at L. 743], and as afterwards surveyed and set off to the said Indians. The penalty for the violation of this provision shall be such as Congress may prescribe in the act ratifying this agreement.' In the ratifying act a penalty was prescribed. The ceded lands were opened to disposition under the homestead and town-site laws, and passed largely into private ownership, and the place at which the intoxicating Liquors were sold was within the defendant's own premises in a town located upon a part of the ceded lands held in private ownership by the inhabitants, none of whom was an Indian. After overruling the contention that the restriction was invalid because the power to regulate the sale of intoxicating liquors upon all ceded lands rested exclusively in the state (citing United States v. 43 Gallons of Whisky [United States v. Lariviere], 93 U. S. 188, 23 L. ed. 846, and Dick v. United States, 208 U. S. 340, 52 L. ed. 520, 28 Sup. Ct. Rep. 399), the opinion dealt with the further contention that the power of Congress was necessarily limited to what was reasonably essential to the protection of Indians occupying the unceded lands, and that this limitation was transcended by the provision in question because it embraced territory greatly in excess of what the situation required, and because its operation was not confined to a designated period reasonable in duration, but apparently was intended to be perpetual. As to this the court said (p. 486):

'As the power is incident only to the presence of the Indians and their status as wards of the government, it must be conceded that it does not go beyond what is reasonably essential to their protection, and that, to be effective, its exercise must not be purely arbitrary, but founded upon some reasonable basis. Thus, a prohibition like that now before us, if covering an entire state when there were only a few Indian wards in a single county, undoubtedly would be condemned as arbitrary. And a prohibition valid in the beginning doubtless would become inoperative when, in regular course, the Indians affected were completely emancipated from Federal guardianship and control. A different view in either case would involve an unjustifiable encroachment upon a power obviously residing in the state. On the other hand, it must also be conceded that, in determining what is reasonably essential to the protection of the Indians, Congress is invested with a wide discretion, and its action, unless purely arbitrary, must be accepted and given full effect by the courts.'

Although the circumstances of the present case are different, and we are here dealing with a question of obsolescence rather than of original invalidity, the language just quoted indicates the point of view from which the question should be approached. But we must not forget that the question is one, primarily, for the consideration of the law-making body; nor are we in danger of doing so, since, by the very terms of the stipulation now under consideration, the prohibition of the liquor traffic was to continue 'until otherwise provided by Congress.' We do not mean to say that if it appeared that no considerable number of Indians remained wards of the government within the territory in question, the courts would not be justified in declaring that, since the constitutional warrant for the restriction no longer existed, the restriction must expire with it. But where the question confessedly turns not upon a total, nor even upon an approximately complete, emancipation of the Indians from the Federal guardianship, but upon their unimportance as compared with the interests of the population at large, we think the question is legislative rather than judicial.

Indeed, it has only recently been under consideration by Congress. On February 17, 1911 (Senate Doc. No. 824, 61st Cong., 3d Sess., vol. 85), the President, in a special message, called attention to the situation in Minnesota, resulting from the operation of the old Indian treaties under present conditions; and with respect to the area ceded by the Chippewas in 1855, he stated: 'The records of the Indian Bureau show that there are within said area, under the jurisdiction of the superintendents of the White Earth and Leech Lake Reservations, 7,196 Indians who can be amply protected by limiting the territory as to which said treaty provisions shall remain in force and effect to the area within and contiguous to said reservations, particularly described as follows: . . . I therefore recommend that Congress modify the article of said treaty quoted above so as to exclude from the operations of its provisions all of the territory ceded by said treaty to the United States, except that immediately above described.'

That Congress has not yet acted upon this recommendation is evidence that the problem is not so entirely obvious of solution that it can be judicially declared to be beyond the range of legislative discretion.

Since it must be admitted that complainants have no ground of relief against defendants if the restriction remains in force at Bemidji, as we hold that it does, it follows that the decree of the District Court should be reversed, and the cause remanded with directions to dismiss the bill.

Decree reversed.

Mr. Justice McKenna and Mr. Justice Lurton dissent upon grounds expressed in the opinion of the District Court, reported in 183 Fed. 611.