While a state, upon its admission to the Union, is on an equal
footing with every other state and, except as restrained by the
Constitution, has full and complete jurisdiction over all persons
and things within its limits, Congress has power to regulate
commerce with the Indian tribes, and such power is superior and
paramount to the authority of the state within whose limits are
Indian tribes.
Where fundamental principles of the Constitution are of equal
dignity, neither must be so enforced as to nullify or substantially
impair the other. While the prohibition of § 2139, Rev.Stat.,
as amended in 1892, against introducing intoxicating liquors into
Indian country does not embrace any body of territory in which the
Indian title has been unconditionally extinguished, that statute
must. be interpreted in connection with whatever special agreement
may have been made between the United States
Page 208 U. S. 341
and the Indians in regard to the extinguishment of the title and
the retention of control over the land ceded by the United
States.
It is within the power of Congress to retain control, for police
purposes, for a reasonable and limited period, over lands the
Indian title to which is extinguished and which are allotted in
severalty, notwithstanding that the Indians may be citizens and the
land may be within the limits of a state, and twenty-five years is
not an unreasonable period.
Under the agreement of May 1, 1893, ratified, 28 Stat. 286, 326,
between the United States and the Nez Perce Indians, the United
States retained control over the lands ceded for the purpose of
controlling the use of liquor therein for twenty-five years, and
during that period, § 2139, Rev.Stat., remains in force,
notwithstanding such land are within the State of Idaho.
By indictment returned in the District Court of the United
States for the District of Idaho, the plaintiff in error, Dick, was
charged with the offense of having unlawfully and feloniously
introduced intoxicating liquor -- whisky -- into the Indian
country, to-wit, into and upon the Nez Perce Indian Reservation, in
the County of Nez Perce, State of Idaho.
The indictment was based upon § 2139 of the Revised
Statutes as amended and reenacted by the Act of July 23, 1892, 27
Stat. 260, c. 234. That amended section reads:
"No ardent spirits, ale, beer, wine, or intoxicating liquor, or
liquors of whatever kind shall be introduced, under any pretense,
into the Indian country. Every person who sells, exchanges, gives,
barters, or disposes of any ardent spirits, ale, beer, wine, or
intoxicating liquors of any kind to any Indian under charge of any
Indian superintendent or agent, or introduces or attempts to
introduce any ardent spirits, ale, wine, beer, or intoxicating
liquor of any kind into the Indian country shall be punished by
imprisonment for not more than two years, and by fine of not more
than three hundred dollars for each offense. But it shall be a
sufficient defense to any charge of introducing or attempting to
introduce ardent spirits, ale, beer, wine, or intoxicating liquors
into the Indian country that the acts charged were done under
authority in writing from the War Department, or any officer duly
authorized thereunto by the War Department. . . ."
The accused demurred to the indictment upon the following,
Page 208 U. S. 342
among other, grounds: that at the time charged in the
indictment, there was no Indian country within the County of Nez
Perce or within the district of Idaho known or designated as the
Nez Perce Indian Reservation; that the jurisdiction of the United
States over all the country and territory embraced within the
former reservation known and designated as the Nez Perce Indian
Reservation was, by the act admitting Idaho as a state into the
Union, relinquished to the State of Idaho, excepting only that
jurisdiction was retained in the United States over such Indian
reservation until the Indians' title to the lands included within
the boundary of such reservation should be extinguished; that the
Indian or tribal title to the lands therein contained has, since
the admission of the state, been extinguished by the allotment of
the lands in severalty to the individual Indians and by the
purchase of the balance thereof by the United States, and that such
allotments and purchase have been ratified by the public laws and
acts of Congress, and further, that the former reservation, known
and designated as the Nez Perce Indian Reservation, had, prior to
the time of the commission of the acts mentioned in the indictment,
been opened for occupation, settlement, and disposal under the
general land laws of the United States by an act of Congress, and
that the same had been, as a matter of general and public
knowledge, prior to the time mentioned in the indictment, settled
and appropriated by citizens of the state; that various townsites
within the boundaries of the former reservation had been settled by
citizens, and the title thereto transferred from the United States
to the inhabitants, and that municipal governments, namely,
villages, had been organized and were in existence within the
boundaries of the former reservation, and that the same, nor any
part thereof, is not, and was not at the times mentioned in the
indictment, Indian country, or lands reserved for the use and
occupation of Indians or occupied by any Indian maintaining tribal
relations or by any Indians or persons whomsoever over which the
United States is exercising, or attempting to exercise, any of the
authority
Page 208 U. S. 343
or control in nature of the guardianship of the person. Other
grounds of demurrer were assigned, but they need not be here set
out.
The demurrer was overruled, and the case went to trial, the
accused pleading not guilty. At the close of the evidence, he asked
the court to direct a verdict of not guilty, but that request was
denied and the result of the trial was a verdict of guilty. Motions
for arrest of judgment and for a new trial having been denied, the
defendant was, on May 16, 1905, sentenced to pay a fine of $100 and
costs and to be imprisoned in the penitentiary for the term of one
year and ten days.
In order that the grounds of the demurrer may be clearly
apprehended, it is necessary to bring into view certain legislation
by Congress and an agreement or treaty made between the United
States and the Nez Perce Indians.
By the act of Congress of February 8, 1887, c. 119, providing
for the allotment of lands in severalty to Indians on the various
Indian reservations, and to extend the protection of the laws of
the United States and the territories over the Indians, it was
provided:
"That upon the approval of the allotments provided for in this
act by the Secretary of the Interior, he shall cause patents to
issue therefor in the name of the allottees, which patents shall be
of the legal effect, and declare, that the United States does and
will hold the land thus allotted, for the period of twenty-five
years, in trust for the sole use and benefit of the Indian to whom
such allotment shall have been made, or, in case of his decease, of
his heirs according to the laws of the state or territory where
such land is located, and that at the expiration of said period the
United States will convey the same, by patent, to said Indian, or
his heirs as aforesaid, in fee, discharged of said trust and free
of all charge or encumbrance whatsoever:
Provided, That
the President of the United States may in any case, in his
discretion, extend the period. And if any conveyance shall be made
of the lands set apart and allotted as herein provided, or any
contract made touching the same, before the expiration of the time
above
Page 208 U. S. 344
mentioned, such conveyance or contract shall be absolutely null
and void:
Provided, That the law of descent and partition
in force in the state or territory where such lands are situate
shall apply thereto after patents therefor have been executed and
delivered, except as herein otherwise provided. . . ."
24 Stat. 389, § 5.
Section 6 of that act is as follows:
"That, upon the completion of said allotments and the patenting
of the lands to said allottees, each and every member of the
respective bands or tribes of Indians to whom allotments have been
made shall have the benefit of and be subject to the laws, both
civil and criminal, of the state or territory in which they may
reside, and no territory shall pass or enforce any law denying any
such Indian within its jurisdiction the equal protection of the
law. And every Indian born within the territorial limits of the
United States to whom allotments shall have been made under the
provisions of this act, or under any law or treaty, and every
Indian born within the territorial limits of the United States who
has voluntarily taken up, within said limits, his residence
separate and apart from any tribe of Indians therein, and has
adopted the habits of civilized life, is hereby declared to be a
citizen of the United States, and is entitled to all the rights,
privileges, and immunities of such citizens, whether said Indian
has been or not, by birth or otherwise, a member of any tribe of
Indians within the territorial limits of the United States, without
in any manner impairing or otherwise affecting the right of any
such Indian to tribal or other property."
Idaho was admitted into the Union in 1890, Act of July 3, 26
Stat. 215, c. 656, the act of admission containing no provision
about Indian lands or reservations. But the Constitution of Idaho,
which Congress accepted, ratified, and confirmed, contained this
provision:
"And the people of the State of Idaho do agree and declare that
we forever disclaim all right and title to the unappropriated
public lands lying within the boundaries thereof, and to all lands
lying within said limits owned or
Page 208 U. S. 345
held by any Indians or Indian tribes, and, until the title
thereto shall have been extinguished by the United States, the same
shall be subject to the disposition of the United States, and said
Indian lands shall remain under the absolute jurisdiction and
control of the Congress of the United States."
In the Act of August 15th, 1894, c. 290, 28 Stat. 286, 326, 327,
330, making appropriations for current and contingent expenses of
the Indian Department and fulfilling treaty stipulations with
various Indian tribes, will be found the provisions of an agreement
between the Nez Perce Tribe of Indians upon the Lapwai Reservation
in Idaho, from which it appears that, in making that agreement, the
parties proceeded under the authority of the above act of 1887. By
that agreement, the Indians ceded, sold, relinquished, and conveyed
to the United States all their claim, title, and interest in and to
all the unallotted lands within the limits of that reservation
except certain specified tracts, which they retained. The parties
stipulated that the land so ceded should not be open for public
settlement until trust patents for the allotted lands had been duly
issued and recorded and the first payment made to the Indians.
Article IX of that agreement has a particular bearing upon this
case. It reads:
"It is further agreed that the lands by this agreement ceded,
those retained, and those allotted to the Nez Perce Indians shall
be subject, for a period of twenty-five years, to all the laws of
the United States prohibiting the introduction of intoxicants into
the Indian country, and that the Nez Perce Indian allottees,
whether under the care of an Indian agent or not, shall, for a like
period, be subject to all the laws of the United States prohibiting
the sale or other disposition of intoxicants to Indians."
The agreement, by its terms, was not to take effect and be in
force until ratified by Congress. It was accepted, ratified, and
confirmed by the above Act of August 15, 1894, c. 290.
Page 208 U. S. 349
MR. JUSTICE HARLAN delivered the opinion of the Court.
From the above statement it appears:
That the lands allotted in severalty to Indians in conformity
with the act of February 8, 1887, were to be held for the period of
twenty-five years by the United States in trust for the sole
Page 208 U. S. 350
use and benefit of the Indian allottee or his heirs, when a
formal patent was to be issued by the United States to the Indian
or his heirs in fee, free from all charge or encumbrance whatever,
such period subject to be extended by the President, in his
discretion.
That, upon the completion of the allotments and patenting of the
lands to the allottees as in that act provided, every member of the
respective bands or tribes of Indians to whom allotments have been
made was to have the benefit of and be subject to the laws, both
civil and criminal, of the state or territory in which he resided;
also, that every Indian born within the United States, to whom an
allotment was made under the act of 1887 or under any treaty, and
every Indian born within the United States who had voluntarily
taken up within such limits his residence, separate and apart from
any Indian tribe, and adopted the habits of civilized life was
declared to be a citizen of the United States and entitled to all
the rights, privileges, or immunities of such citizen, and
That, by the agreement of 1893 with the Indians, the lands
thereby ceded, those retained, and those allotted to the Nez Perce
Indians were to be subject for the period of twenty-five years to
all the laws of the United States prohibiting the introduction of
intoxicants into the Indian country, and that the Nez Perce Indian
allottees, whether under the care of an Indian agent or not, should
for a like period be subject to all the laws of the United States
prohibiting the sale or other disposition of intoxicants to the
Indians. It also appears that, at the date of such agreement, it
was made an offense against the United States, punishable by fine
and imprisonment, for anyone either to sell, exchange, give,
barter, or dispose of ardent spirits, ale, beer, wine or
intoxicating liquor of any kind to any Indian under charge of an
Indian superintendent or agent, or to introduce or attempt to
introduce ardent spirits, ale, beer, wine, or intoxicating liquor
of any kind into the Indian country.
There are certain facts which the accused insists are decisive
in his favor. They are as follows:
Page 208 U. S. 351
1. That the village of Culdesac, although within the boundaries
of the Nez Perce Reservation as established before Idaho was
admitted into the Union, was at the time specified in the
indictment, an organized village or town of that state.
2. The accused, Dick, is a Umatilla Indian who, at the date of
the offense, held, and for three years had held, an allotment in
severalty and also what is called a trust patent. On or about the
thirteenth of March, 1905, he purchased at Culdesac five bottles of
whisky, the contents of two bottles of which he and some other
Indians drank up. Part of the money paid for the whisky was
furnished by Te-We-Talkt, a Nez Perce Indian, living on the Nez
Perce Reservation and holding an allotment and also a preliminary
trust patent. Dick gave one bottle of the whisky to Te-We-Talkt,
but afterwards it was taken from the latter by the superintendent
and acting agent of the Nez Perce Indians. The purchasing of the
whisky, the giving of the one bottle to Te-We-Talkt, and the taking
of that bottle from the latter all occurred within the limits of
the Village of Culdesac. Nothing happened in relation to the
transaction outside of the village. The superintendent of the Nez
Perce Indians testified:
"I do not know of any reservation or any part of the reservation
used for government purposes or for Indian purposes within the
boundary of the Village of Culdesac. I have no idea there is any
such reservation within such village. Culdesac is seven or eight
miles from the exterior boundaries of the Indian school
reservation."
3. The lands upon which the Village of Culdesac is located were
part of those ceded to the United States by the agreement of 1893
with the Indians, and before the above transaction in that village
about whisky occurred, the title to such lands had passed by patent
from the United States under the townsite laws to the Probate Judge
of Nez Perce County, in trust for the inhabitants of the village.
141 F. 5, 7.
We need not stop to consider the scope, meaning, or validity of
that part of amended § 2139 of the Revised Statutes which
makes it an offense against the United States to sell,
exchange,
Page 208 U. S. 352
give, barter, or dispose of ardent spirits, ale, beer, wine, or
intoxicant liquors "to any Indian under charge of any Indian
superintendent or agent." No case is here for trial under that
clause of the statute, for the only charge in the indictment is
that the accused unlawfully and feloniously introduced intoxicating
liquors into the "Indian country."
Section 2139, as amended and reenacted in 1892, makes it an
offense against the United States for anyone to introduce
intoxicating liquors into the "Indian country," and the offense
charged against Dick was the introduction by him of whisky into
that country on the fifteenth day of March, 1905. The transaction
out of which the present prosecution arose occurred, as we have
seen, within the Village of Culdesac, a municipal organization
existing under and by virtue of the laws of Idaho, and the parties
involved in it were Dick and Te-We-Talkt, who were at that time
Indian allottees in severalty and holders of trust patents, and
therefore, according to the decision in
In re Heff,
197 U. S. 488,
citizens of the United States. If this case depended
alone
upon the federal liquor statute forbidding the introduction of
intoxicating drinks into the Indian country, we should feel obliged
to adjudge that the trial court erred in not directing a verdict
for the defendant, for that statute, when enacted, did not intend
by the words "Indian country" to embrace any body of territory in
which, at the time, the Indian title had been extinguished, and
over which and over the inhabitants of which (as was the case of
Culdesac) the jurisdiction of the state, for all purposes of
government, was full and complete.
Bates v. Clark,
95 U. S. 204;
Ex Parte Crow Dog, 109 U. S. 556,
109 U. S.
561.
But this case does not depend upon the construction of the
federal liquor statute, considered alone. That statute must be
interpreted in connection with the agreement of 1893 between the
United States and the Nez Perce Indians. By that agreement, as we
have seen, the United States stipulated that the lands ceded by the
Nez Perce Indians, and those retained as well as those allotted to
the Indians (which embraced all
Page 208 U. S. 353
the lands in the original reservation) should be subject, for
the limited period of twenty-five years, to all federal laws
prohibiting the introduction of intoxicants into the Indian
country.
Now the principal contention of the accused is that the United
States has no jurisdiction for purposes of local police control
over lands within a state which are owned in fee by white citizens
of such state, although they may have been once the property of an
Indian tribe, and were acquired by the United States subject to the
condition that the acts of Congress relating to a named subject
should remain in force for a prescribed period over such territory.
We could not allow this view to control our decision without
overruling former decisions, the correctness of which, so far as we
are aware, has never been questioned. In determining the extent of
the power of Congress to regulate commerce with the Indian tribes,
we are confronted by certain principles that are deemed fundamental
in our governmental system. One is that a state, upon its admission
into the Union, is thereafter upon an equal footing with every
other state, and has full and complete jurisdiction over all
persons and things within its limits, except as it may be
restrained by the provisions of the federal Constitution or by its
own Constitution. Another general principle based on the express
words of the Constitution is that Congress has power to regulate
commerce with the Indian tribes, and such power is superior and
paramount to the authority of any state within whose limits are
Indian tribes. These fundamental principles are of equal dignity,
and neither must be so enforced as to nullify or substantially
impair the other. In regulating commerce with Indian tribes,
Congress must have regard to the general authority which the state
has over all persons and things within its jurisdiction. So, the
authority of the state cannot be so exerted as to impair the power
of Congress to regulate commerce with the Indian tribes.
At the date of the agreement of 1893 with the Nez Perce Indians,
the reservation upon which they lived was their
Page 208 U. S. 354
property, and they and their lands were subject to federal
jurisdiction, although the lands of that reservation were within
the limits of the State of Idaho, which had been previously
admitted into the Union upon an equal footing with other states.
The future of those lands was a matter to be determined primarily
between the Indians owning them and the United States, under whose
exclusive jurisdiction at that time were both the Indians and their
lands. The Indians -- such is the fair interpretation of the
agreement -- desired to retain some of their lands, but were
willing to cede a part of them to the United States, to be allotted
in severalty to men of their tribe, provided the lands then
constituting the reservation, "those ceded, those retained, and
those allotted" to the Nez Perce Indians, were protected by the
federal laws prohibiting the introduction of intoxicants into the
Indian country. We may assume that they particularly had in mind
the lands allotted in severalty, because the allottees, after
receiving preliminary trust patents, would become citizens of the
United States, and it was necessary that the Indians remaining on
the unallotted and retained lands should be protected against the
pernicious influences that would come from having the allotted
lands used by citizens of the United States as a storehouse for
intoxicants. Only the authority of the United States could have
adequately controlled the conduct of such citizens. If intoxicants
could be kept upon the lands of the allottees in severalty, it is
easy to perceive what injury would be done to the Indians living on
the other lands, who, in order to obtain intoxicating liquor, could
go regularly or frequently to the places near by, on some allotted
lands, where intoxicants were stored for sale or exchange.
Therefore the provision in the agreement by which the lands
allotted in severalty, as well as those retained and ceded, were
made subject (not for all time, but only for a limited period,
reasonable in duration) to any federal statute forbidding the
introduction of intoxicants into the Indian country, was one
demanded by the highest considerations of public policy, whether we
look to the
Page 208 U. S. 355
proper government of the Indian tribes by the United States or
to the safety and happiness of the Indians themselves.
This question, as to the validity of Article IX of the agreement
of 1893 is, we think, concluded by principles announced in former
decisions in this Court. A leading case is that of
United
States v. Forty-three Gallons of Whisky, 93 U. S.
188,
93 U. S.
193-195,
93 U. S. 197.
That was a libel of information by the United States against a lot
of whisky seized and sought to be forfeited by virtue of an act of
Congress approved June 30, 1834 and amended March 15, 1864. The
liquors were introduced into an organized village of the State of
Minnesota, which village was located upon territory that had been
ceded to the United States by a treaty made in 1863 and proclaimed
in 1864 with certain bands of Indians. The case proceeded upon the
ground that the carrying of the whisky into the Minnesota village
was in violation of an existing act of Congress, making it a crime
to introduce spirituous liquors or wines into the "Indian country."
The treaty with the Indians which was involved in that case
provided that the statutes of the United States prohibiting the
introduction and sale of spirituous liquors into the Indian country
should be the law throughout all the country ceded until otherwise
directed by Congress or the President. In that case, the contention
was that the place where the whisky was found was not Indian
country, that it ceased to be such when the territory was
transferred to the United States, and that the extension, by force
alone of the Indian treaty, of the federal laws relating to lands
in an organized county of the state was an infringement of the
state's lawful jurisdiction and an invasion of its sovereignty, the
state having been admitted into the Union upon an equal footing
with the original states.
This Court said:
"The Red Lake and Pembina band of Chippewa Indians ceded to the
United States, by treaty, concluded October 2, 1863, a portion of
the lands occupied by them, reserving enough for their own use. The
seventh article is in these words:"
" The laws of the United States now in force,
Page 208 U. S. 356
or that may hereafter be enacted, prohibiting the introduction
and sale of spirituous liquors in the Indian country, shall be in
full force and effect throughout the country hereby ceded until
otherwise directed by Congress or the President of the United
States."
"The ceded country is now part of an organized county of the
State of Minnesota, and the question is whether the incorporation
of this article in the treaty was a rightful exercise of power. If
it was, then the proceedings to seize and libel the property
introduced for sale in contravention of the treaty were proper, and
must be sustained. Few of the recorded decisions of this Court are
of greater interest and importance than those pronounced in
Cherokee
Nation v. Georgia, 6 Pet. 1, and
Worcester v.
Georgia, 6 Pet. 515. Chief Justice Marshall, in
these cases, with a force of reasoning and an extent of learning
rarely equaled, stated and explained the condition of the Indians
in their relation to the United States and to the states within
whose boundaries they lived, and his exposition was based on the
power to make treaties and regulate commerce with the Indian
tribes. Under the Articles of Confederation, the United States had
the power of regulating the trade and managing all affairs with the
Indians not members of any of the states, provided that the
legislative right of a state within its own limits be not infringed
or violated. Of necessity, these limitations rendered the power of
no practical value. This was seen by the convention which framed
the Constitution, and Congress now has the exclusive and absolute
power to regulate commerce with the Indian tribes -- a power as
broad and as free from restrictions as that to regulate commerce
with foreign nations. The only efficient way of dealing with the
Indian tribes was to place them under the protection of the general
government. Their peculiar habits and character required this, and
the history of the country shows the necessity of keeping them
'separate, subordinate, and dependent.' Accordingly, treaties have
been made and laws passed separating Indian territory from that of
the states, and providing that intercourse and trade with
Page 208 U. S. 357
the Indians should be carried on solely under the authority of
the United States. Congress very early passed laws relating to the
subject of Indian commerce, which were, from time to time, modified
by the lessons of experience. . . . The power is in nowise affected
by the magnitude of the traffic or the extent of the intercourse.
As long as these Indians remain a distinct people, with an existing
tribal organization, recognized by the political department of the
government, Congress has the power to say with whom, and on what
terms, they shall deal and what articles shall be contraband. If
liquor is injurious to them inside of a reservation, it is equally
so outside of it, and why cannot Congress forbid its introduction
into a place
nearby, which they would be likely to
frequent? It is easy to see that the love of liquor would
tempt them to stray beyond their borders to obtain it, and that bad
white men, knowing this, would carry on the traffic in adjoining
localities rather than venture upon forbidden ground. If Congress
has the power, as the case we have last cited decides, to punish
the sale of liquor anywhere to an individual member of an Indian
tribe, why cannot it also subject to forfeiture liquor introduced
for an unlawful purpose into territory in proximity to that, where
the Indians live? There is no reason for the distinction, and, as
there can be no divided authority on the subject, our duty to them,
our regard for their material and moral wellbeing, would require us
to impose further legislative restrictions should country adjacent
to their reservations be used to carry on the liquor traffic with
them."
After referring to
United States v.
Holliday, 3 Wall. 409, in which it was held that
Congress could regulate commerce with the individual members of
Indian tribes, the Court proceeded:
"The chiefs doubtless saw, from the curtailment of their
reservation and the consequent restriction of the limits of the
'Indian country,' that the ceded lands would be used to store
liquors for sale to the young men of the tribe, and they well knew
that, if there was no cession, they were already sufficiently
protected by the extent of their reservation. Under such
circumstances
Page 208 U. S. 358
it was natural that they should be unwilling to sell until
assured that the commercial regulation respecting the introduction
of spirituous liquors should remain in force in the ceded country
until otherwise directed by Congress or the President. This
stipulation was not only reasonable in itself, but was justly due
from a strong government to a weak people it had engaged to
protect. It is not easy to see how it infringes upon the position
of equality which Minnesota holds with the other states. The
principle that federal jurisdiction must be everywhere the same
under the same circumstances has not been departed from. The
prohibition rests on grounds which, so far from making a
distinction between the states, apply to them all alike. The fact
that the ceded territory is within the limits of Minnesota is a
mere incident; for the act of Congress imported into the treaty
applies alike to all Indian tribes occupying a particular country,
whether within or without states' lines. Based as it is exclusively
on the federal authority over the
subject matter, there is
no disturbance of the principle of state equality."
The result in that case was that the whisky was forfeited
because illegally introduced in violation of the treaty with the
Indians, and this notwithstanding the place in which it was found
and seized was within a state.
In
Bates v. Clark, 95 U. S. 204,
95 U. S.
208-209, the Court said that Indian lands ceased,
without any further act of Congress, to be Indian country after the
Indian title had been extinguished, but it took care to add the
qualifying words, "unless, by the treaty by which the Indians
parted with their title, or by some act of Congress, a different
rule was made applicable to the case." Referring to the treaty
involved in the case of the
Forty-three Gallons of Whisky,
the Court further said:
"Then this treaty was made, in 1864, the land ceded was within
the territorial limits of the State of Minnesota. The opinion holds
that it was Indian country before the treaty, and did not cease to
be so when the treaty was made,
by reason of the special clause
to the contrary in the treaty, though within the
boundaries
Page 208 U. S. 359
of a state. It follows from this that all the country
described by the act of 1834 as Indian country remains Indian
country so long as the Indians retain their original title to the
soil, and ceases to be Indian country whenever they lose that
title,
in the absence of any different provision by treaty or
by act of Congress."
See also Ex Parte Crow Dog, 109 U.
S. 556,
109 U. S.
561.
Following our former decisions, we adjudge that the agreement
between the United States and the Nez Perce Indians, whereby the
Indian lands ceded, retained, and allotted to the Nez Perce Indians
should be subject (not without limit as to time, but only for
twenty-five years) to any federal statutes prohibiting the
introduction of intoxicants into the Indian country, was not liable
to objection on constitutional grounds; in which case the demurrer
to the indictment was properly overruled, and the plaintiff in
error rightfully convicted.
In view of some contentions of counsel and of certain general
observations in the case of
Forty-three Gallons of Whisky,
above cited, not necessary to the decision of that case, but upon
which some stress has been laid, it is well to add that we do not
mean, by anything now said, to indicate what, in our judgment, is
the full scope of the treatymaking power of Congress, nor how far,
if at all, a treaty may permanently displace valid state laws or
regulations. We go no further in this case than to say that the
requirement, in the agreement of 1893, that the federal liquor
statutes protecting the Indian country against the introduction of
intoxicants into it should, for the limited period of twenty-five
years, be the law for the lands ceded and retained by, as well as
the lands allotted to, the Nez Perce Indians, was a valid
regulation, based upon the treatymaking power of the United States
and upon the power of Congress to regulate commerce with those
Indians, and was not inconsistent, in any substantial sense, with
the constitutional principle that a new state comes into the Union
upon entire equality with the original states. The judgment must,
for the reasons stated, be affirmed.
It is so ordered.
