Where complainant's entire case rests on the construction of
treaties with Indians in regard to reservations and on the claim
that certain of such treaties have been repealed by the subsequent
admission of the territory within which the reservations are
situated, this Court has jurisdiction of a direct appeal from the
district court under § 238, Judicial Code.
The provision in Article VII of the Treaty with the Minnesota
Chippewa Indians of 1855, that the laws of Congress prohibiting the
manufacture and introduction of liquor in Indian country shall be
in force within the entire boundaries of the country ceded by that
treaty to the United States until otherwise provided by Congress,
relates to the outer boundaries and includes all the reservations
that lie within.
It is within the constitutional power of Congress to prohibit
the manufacture, introduction, or sale of intoxicants upon Indian
lands, including not only land reserved for their special occupancy
but also lands outside of the reservations to which they may
naturally resort, and this prohibition may extend even with respect
to lands lying within the bounds of states.
Article VII of the Chippewa Treaty of 1855 was not repealed
directly or by implication by the subsequent act of Congress
admitting Minnesota into the Union, nor was that article repealed
by the effect of the subsequent treaties with the same bands of
Chippewas of 1865 and 1867, but the intent of Treaties of 1855,
1865 and 1867, as construed
Page 234 U. S. 423
together, was that the acts of Congress relating to the
introduction and sale of liquor in Indian country should continue
in force within the entire boundaries of the country in question
until otherwise provided by Congress.
Article VII of the Chippewa Treaty of 1855 has not been
superseded by any of the provisions of the Nelson Act of 1889, or
the cessions made by the Indians to the United States pursuant
thereto, nor has that article been superseded by reason of any
change in the character of the territory affected by the treaty and
the status of the Indians therein.
The abrogation of an article in an Indian treaty prohibiting the
sale of liquor within territory specified therein until Congress
otherwise provides is, in the absence of any considerable number of
Indians remaining in that territory, a question primarily for
Congress, and not for the courts.
The fact that there has been a recent communication and
recommendation from the President to Congress on a particular
subject and Congress has not acted thereon is evidence that the
problem is not so entirely obvious of solution that the courts can
declare it to be beyond the range of legislative discretion.
Article VII of the Chippewa Treaty of 1855 having provided for
the prohibition against sale of liquor within the entire territory
ceded by that treaty until Congress should otherwise provide,
held that, notwithstanding the subsequent admission of
Minnesota to the Union, and the later treaties with the Chippewas
of 1865 and 1867 and the changed condition of the country and the
status of the Indians, Congress not having otherwise provided, the
prohibition is still in force throughout that entire territory,
including the City of Bemidji, in which there are but few Indians
and in the vicinity of which there is a large area of territory
unrestricted by the prohibitions of Article VII.
183 F. 611 reversed.
This is a direct appeal from a final decree of the district
court, rendered April 20, 1912, granting to appellees (who were
complainants below, and will be so designated), a permanent
injunction against appellants (defendants below) in accordance with
the prayer of the amended bill of complaint. It appears that
complainants are severally residents and citizens of the City of
Bemidji, Beltrami County, Minnesota, and at the time of the filing
of the
Page 234 U. S. 424
bill were, and for a considerable time had been, engaged in
business there as saloon keepers, selling at retail spirituous,
vinous, and malt liquors at their respective places of business in
that city, each of them having paid to the federal and state
governments, respectively, the necessary tax and license fees, and
having a receipt from the federal government and a liquor license
issued under the authority of the State of Minnesota by the
municipal council and officials of the city. The bill alleged that
each of the complainants had refrained from selling or disposing of
any liquor to Indians, or individuals of Indian blood, and had
complied with the federal and state laws in this and in other
respects; that each of them had built up and established a
profitable and lucrative trade, and that the jurisdictional amount
was involved. It averred that defendants, being citizens of other
states, and acting in conjunction as special officers under the
Interior Department of the United States Government, were
threatening to enforce within the City of Bemidji the provisions of
§§ 2139 and 2140 of the Revised Statutes of the United
States and amendments thereto, and on December 9, 1910, had ordered
complainants and other licensed saloon keepers in Bemidji to close
their saloons and cease sales of liquor, and ship away their stock,
threatening that otherwise they would destroy the stocks of liquor
in the possession of complainants on the ground that, under Article
VII of a Treaty made on the 22d day of February, 1855, between the
United States and certain bands of Chippewa Indians, certain
territory mentioned in the treaty, including what is now the City
of Bemidji, was subject to the laws of the United States respecting
the sale of liquors in the Indian country.
To the bill as originally filed defendants interposed a
demurrer, which was overruled, and a temporary injunction was
granted. 183 F. 611. Thereafter, the cause was brought to final
hearing upon an amended bill
Page 234 U. S. 425
and a re-amended answer, and the court, adhering to its former
conclusion, rendered a final decree, as already mentioned.
The pertinent historical facts, as deduced from the averments of
the amended pleadings, are as follows: on and prior to February 22,
1855, certain bands of the Chippewa Tribe of Indians known as the
Mississippi Bands and the Pillager and Lake Winnibigoshish Bands,
were in possession of the greater portion of the lands north of
parallel 46 within the boundaries of the then Territory of
Minnesota. Their country constituted a wilderness, almost wholly
uninhabited by civilized people. On the date mentioned, these bands
entered into a treaty with the United States, which was approved by
the Senate and proclaimed by the President shortly thereafter (10
Stat. 1165). By its first article, the Indians ceded and conveyed
to the United States
"all their right, title, and interest in and to the lands now
owned and claimed by them, in the Territory of Minnesota, and
included within the following boundaries."
(Here follows a particular description, by natural boundaries,
of a tract of country said to contain about 21,000 square miles.)
By the same article, the Indians further relinquished and conveyed
to the United States any and all right, title, and interest, of
whatsoever nature, that they then had in and to any other lands in
the territory of Minnesota or elsewhere. This article mentions no
exception or reservation from the lands ceded or granted. By
Article II, there was
"reserved and set apart a sufficient quantity of land for the
permanent homes of the said Indians, the lands so reserved and set
apart to be in separate tracts, as follows."
The separate tracts were then briefly described or indicated.
For the Mississippi Bands, six reservations were set apart, which
came to be known as the Mille Lac, Rabbit Lake, Gull Lake,
Pokagomon Lake, Sandy Lake, and Rice Lake Reservations, and besides
these, a section of land was
Page 234 U. S. 426
reserved for one of the Indian chiefs. For the Pillager and Lake
Winnibigoshish Bands, three reservations were set apart, known from
their respective locations as the Leech Lake, Lake Winnibigoshish,
and Cass Lake Reservations.
The seventh Article of the treaty is as follows:
"Article VII. 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."
By Act of February 26, 1857, 11 Stat. 166, c. 60, the
inhabitants of a portion of the territory, including the lands
ceded by the Chippewas as above, were authorized to form a state
government and come into the Union on an equal footing with the
original states. The act contained no condition with reference to
the Treaty of 1855 or the rights of the Indians to any lands within
the boundaries of the state. A state constitution was formed by
which Indians were given the right to vote under certain
circumstances, and persons residing on Indian lands were declared
entitled to enjoy the rights and privileges of citizens as though
they lived in any other portion of the state, and to be subject to
taxation. This constitution having been ratified and adopted by the
people, Congress, by Act of May 11, 1858, 11 Stat. 285, c. 31,
admitted the state "on an equal footing with the original states in
all respects whatever." And by § 3 it was enacted that all the
laws of the United States not locally inapplicable should have the
same force and effect within that state as in other states of the
Union.
Page 234 U. S. 427
Another treaty was made between the Mississippi, Pillager, and
Lake Winnibigoshish Bands of Chippewas and the United States under
date May 7, 1864, which was ratified and proclaimed in the
following year, and is known as the Treaty of 1865 (13 Stat. 693).
It took the place of a Treaty of March 11, 1863 (12 Stat. 1249). By
its first section, the Gull Lake, Mille Lac, Sandy Lake, Rabbit
Lake, Pokagomon Lake, and Rice Lake Reservations, as described in
the Treaty of 1855, were ceded to the United States, with an
exception not now pertinent, and in consideration of this cession,
the United States agreed to set apart for the future home of the
Chippewas of the Mississippi a considerable tract of land (part of
the great tract ceded in 1855), embraced within designated
boundaries, expressly excepting, however, the reservations made in
the Treaty of 1855 for the Pillager and Lake Winnibigoshish Bands
which were included within the boundaries mentioned. The lands thus
set apart for the Chippewas of the Mississippi contained all the
territory now within the limits of the City of Bemidji and the
lands adjacent to it for a distance of several miles in all
directions.
By a treaty made between the United States and the Chippewas of
the Mississippi, dated March 19, 1867, ratified and proclaimed in
the same year (16 Stat. 719), these bands ceded to the United
States the greater portion (estimated at 2,000,000 acres) of the
lands secured to them by the Treaty of 1865, and, in consideration
of this cession, the United States set apart for the use of the
same Indians a tract to be located in a square form as nearly as
possible, with lines corresponding to the government surveys, the
reservation to include White Earth Lake and Rice Lake, and to
contain thirty-six townships. This reservation came to be known as
the White Earth Reservation. It lies within the exterior boundaries
of the cession of 1855.
The territory ceded to the United States by the Treaty
Page 234 U. S. 428
of 1867 contains what is now the City of Bemidji and the country
about it for miles in every direction.
By an Act of January 14, 1889, known as the Nelson Act, 25 Stat.
642, c. 24, the President was authorized to designate commissioners
to negotiate with all the different bands of Chippewa Indians in
Minnesota for the complete cession and relinquishment of their
title and interest in all their reservations, except the White
Earth and Red Lake Reservations and in so much of these two
reservations as, in the judgment of the Commission, was not
required to make and fill the allotments required by this and
existing acts. The act provided that a census should be taken, and
that, after the cession and relinquishment had been approved, all
the Chippewa Indians in the state except those on the Red Lake
Reservation should be removed to the White Earth Reservation, and
lands should then be allotted to the Indians in severalty, in
conformity with the Act of February 8, 1887, 24 Stat. 388, c. 119,
and the surplus lands disposed of by sale, and the proceeds placed
in the Treasury of the United States to the credit of all the
Chippewa Indians in the State of Minnesota as a permanent fund, to
bear interest payable annually for fifty years, and at the end of
that period, the fund to be divided and paid to all of said
Chippewas, and their issue then living, in cash. By the first
section of this act, the acceptance and approval of the cession and
relinquishment of the lands by the President of the United States
was to be deemed full and ample proof of the assent of the Indians,
and to operate as a complete extinguishment of the Indian title
without further act or ceremony. Commissioners were appointed
accordingly, and agreements were entered into between them and the
several bands of Chippewas by which the Indians accepted and
ratified the provisions of the act and ceded to the United States
all their right, title, and interest in their reservations,
excepting portions of
Page 234 U. S. 429
the White Earth and Red Lake Reservations, and these cessions
were approved by the President on the fourth day of March,
1890.
Since the making of the Treaty of 1855, the country then ceded
to the United States, with the exception of the portions set apart
as Indian Reservations, has been largely developed, gradually at
first, but with great rapidity during recent years, and all the
land has become populated by white people, and opened up to
settlement, and organized as political subdivisions of the state,
and in the larger portion of the territory industries have been
established and commercial interests have grown up, so as to
materially change the situation that existed at the time of the
making of the treaty. According to the census of 1910, the counties
affected by that treaty show a total white population of 382,191.
Bemidji is the county seat of Beltrami County, and is a municipal
corporation, organized under the laws of the state as a city,
containing within its corporate limits about 7,000 inhabitants,
and, in connection with adjacent municipalities, constituting a
population of about 9,000 people. The city is reached by five lines
of railroads, three of which have transcontinental connections. The
country surrounding it is highly developed, and there are no Indian
habitations within twenty miles in any direction from the city.
The original Red Lake Indian Reservation lay immediately north
of the great tract covered by the cession of 1855, and was not
subject to the treaty of that year. Pursuant to the Nelson Act of
January 14, 1889, a considerable portion of this reservation was
relinquished to the United States, and has been opened up to
settlement, with the result that there is now a strip of territory
about fifteen miles in width, lying a few miles north of Bemidji,
which is admittedly exempt from the provisions of any treaty or law
relative to the introduction of intoxicating liquors in the Indian
country, and in that strip the sale of intoxicating
Page 234 U. S. 430
liquors is actually conducted without interference on the part
of the government of the United States.
Page 234 U. S. 433
MR. JUSTICE PITNEY, after making the foregoing statement,
delivered the opinion of the Court.
This direct appeal is taken under § 238, Judicial Code (Act
of March 3, 1911, 36 Stat. 1157, c. 231), 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 VII of the Treaty of 1855 is
drawn in question; (b) that the construction or application of the
Constitution is
Page 234 U. S. 434
involved; (c) that the construction of the Treaties of 1865 and
1867 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 VII (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 VII of the Treaty of 1855 had expired at the
time of
Page 234 U. S. 435
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 VII. 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.
729, c. 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 twentieth and twenty-first
sections (4 Stat. 732) 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 first section of the Act of 1834, the term "Indian
Page 234 U. S. 436
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 VII to continue the restriction in force in the
ceded territory notwithstanding the extinguishment of the Indian
title. Such stipulations were not unusual. A contemporaneous treaty
with the Winnebagoes contained a similar one. 10 Stat. 1174, Art.
VIII. 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. Forty-Three Gallons of Whisky, 93 U. S.
188,
93 U. S. 196;
Bates v. Clark, 95 U. S. 204,
95 U. S.
208.
The fundamental contention that underlies the entire argument
for complainants is that the first part of Article VII 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 VII, 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
Page 234 U. S. 437
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
I, 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 I in terms vests the Indian title in the United
States as to all the described lands, including the reservations
mentioned in Article II. 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 II,
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 eighty 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
Page 234 U. S. 438
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 VII 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 VII 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
Page 234 U. S. 439
thoroughly established, and upon grounds so recently discussed,
that we need merely cite the cases.
Perring v. United
States, 232 U. S. 478,
232 U. S. 483;
United States v. Forty-Three Gallons of Whisky, supra; Dick v.
United States, 208 U. S. 340.
And we cannot agree with the district court that Article VII 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 VII, 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. Forty-Three
Gallons of Whisky, supra, and
Dick v. United States,
supra, 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, we
had to deal with the effect of the Oklahoma Enabling Act upon a
previous statute (Act of March 1, 1895, c. 145, § 8, 28 Stat.
693, 697), which prohibited (
inter alia) the "carrying
into said [Indian] territory
Page 234 U. S. 440
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, 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,
c. 234, 27 Stat. 260, and January 30, 1897, c. 109, 29 Stat. 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
VII 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
Page 234 U. S. 441
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 VII, 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 surrounding 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 VII 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 VII
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 VII
which declared that the laws relating
Page 234 U. S. 442
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 VII 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. 642, c. 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
Page 234 U. S. 443
and Leech Lake Reservations, both reservations being in process
of allotment under the Acts of February 8, 1887, 24 Stat. 388, c.
119, and of January 14, 1889, 25 Stat. 642, c. 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 ten or
twelve miles north of Bemidji.
The argument for treating the restriction of 1855 as no
Page 234 U. S. 444
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
VII.
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
Perring v. United States, 232 U.
S. 478,
232 U. S. 486,
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
Page 234 U. S. 445
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. 286,
314, c. 290), the tribe ceded and relinquished to the United States
all the unallotted lands, and by Article I7 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, 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. Forty-Three Gallons of Whisky, 93 U. S.
188, and
Dick v. United States, 208 U.
S. 340), 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
Page 234 U. S. 446
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.
232 U. S.
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 lawmaking 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
Page 234 U. S. 447
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
Page 234 U. S. 448
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 F.
611.
