1. The 12th section of the Judiciary Act of 1789, which gives to
the circuit courts concurrent jurisdiction of all crimes and
offenses cognizable in the district courts, is prospective, and
embraces all offenses the jurisdiction of which is vested in the
district courts by subsequent statutes.
2. Therefore the circuit courts have jurisdiction of the offense
of selling ardent spirits to an Indian, under the Act of February
12, 1862, although by that act the jurisdiction is vested only in
the district court.
3. By that act Congress intended to make it penal to sell
spirituous liquor to an Indian under charge of an Indian agent,
although it was sold outside of any Indian reservation and within
the limits of a state.
4. The act aforesaid is constitutional, and is based upon the
power of Congress to regulate commerce with the Indian tribes.
5. This power extends to the regulation of commerce with the
Indian tribes and with the individual members of such tribes,
though the traffic and the Indian with whom it is carried on are
wholly within the territorial limits of a state.
6. Whether any particular class of Indians are still to be
regarded as a tribe or have ceased to hold the tribal relation is
primarily a question for the political departments of the
government, and if they have decided it, this Court will follow
their lead.
7. No state can by either its constitution or other legislation
withdraw the Indians within its limits from the operation o�
the laws of Congress regulating trade with them, notwithstanding
any rights it may confer on such Indians as electors or
citizens.
These were indictments, independent of each other, for
violations of the Act of Congress of February 13, 1862, [
Footnote 1]
Page 70 U. S. 408
which declares that if any person shall sell any spirituous
liquors "to any
Indian under the charge of any Indian
superintendent or Indian agent appointed by the United States, he
shall, on conviction thereof before the proper
district
court of the United States," be fined and imprisoned.
This act of 1862 was amendatory of an Act of June 30, 1834,
[
Footnote 2] declaring that if
any person sold liquor to an Indian in the
Indian country,
he should forfeit five hundred dollars.
These indictments were both in
district courts of the
United States -- the one against Haas in the district court for
Minnesota (there not being at the time of the indictment any
circuit court as yet established in Minnesota) and that
against Holliday in the district court for Michigan -- and under
the Act of August 8, 1846, [
Footnote 3] authorizing the remission of indictments from
the district to the circuit courts, they were both removed into the
circuit courts; the case of Haas, after he had been
convicted of the offense charged and while a motion in arrest of
judgment was pending and undetermined in the
district
court.
I
N HAAS' CASE
The indictment charged that the defendant had sold the liquor to
a Winnebago Indian in the State of Minnesota under the charge of an
Indian agent of the United States, but it did not allege that the
locus in quo was within the reservation belonging to the
Winnebago tribe or within any Indian reservation or within the
Indian country.
Upon this indictment the judges of the circuit court were
divided in opinion on the questions:
1. Whether, under the act of February 13, 1862, the offense for
which the defendant is indicted was one of which the circuit court
could have original jurisdiction.
2. Whether, under the facts above stated, any court of the
United States had jurisdiction of the offense.
Page 70 U. S. 409
I
N HOLLIDAY'S CASE
The indictment charged the defendant with selling liquor, in
Gratiot County, Michigan, to one Otibsko, an Indian under the
charge of an Indian agent appointed by the United States.
The plea alleged that Gratiot County was
an organized county
of the State of Michigan; that it was not within the Indian
country; that no Indian reservation existed within it; that
Otibsko was one of the Chippewa Indians mentioned in certain
treaties which were referred to; that Otibsko accepted lands in
Michigan and entered into possession of them under a certificate
from the United States; that the tribal organization of the said
Chippewa Indians was dissolved by one of the treaties except
insofar as it was necessary to preserve it for the purposes of the
same; and that Otibsko had voted at elections for county and town
officers.
The plea set forth also certain provisions of the constitution
and laws of Michigan which confer political rights upon civilized
male inhabitants of Indian descent, natives of the United States
and not members of any tribes, and also judicial rights and
privileges upon all Indians.
The government, by replication admitting the truth of the
matters contained in the plea, alleged that, pursuant to the
existing treaties with the said Chippewas, and the regulations and
practice of the Interior Department and Indian Bureau, the chiefs
and head men of the said Chippewas continued to be the
representatives of the tribe; that the Indian agent for Michigan
was required to deal with the said chiefs and head men of the said
Chippewas as such, and to take the receipts of such chiefs and head
men for money and property delivered to the said Chippewas under
the provisions of the treaties.
And alleged further that the said Otibsko recognized and
acknowledged the chiefs and head men of the Chippewas of Saginaw,
and resided with the said Indians on the lands in Isabella County,
selected by them under the treaty of 1855, and that the Indian
agent of the United States annually
Page 70 U. S. 410
distributed a sum of money and treaty property for the benefit
of the said Otibsko.
On this state of facts, the circuit court was divided on the
following points:
1. Whether the Act of Congress of February, 1862, does by proper
construction extend to a sale of liquor, such as is charged in the
indictment, under the circumstances stated in the plea and
replication?
2. Whether, if construed to so extend, Congress has the
constitutional right to so enact?
3. Whether, under the circumstances stated in the plea and
replication, the Indian named can be considered as under the charge
of an Indian agent within the meaning of the act?
4. Whether, upon the facts stated in the plea and replication,
the said Otibsko was a civilized Indian, not a member of any tribe
within the meaning of the Constitution of Michigan, and whether he
was a citizen of the State of Michigan?
5. Whether the provisions of the Constitution and laws of the
State of Michigan, stated in the plea of the defendant, were, under
all the facts and circumstances stated in said plea and
replication, and, under the constitution, the said treaties and act
of Congress of 1862, a bar to said indictment?
The record in this case showed that the Secretary of the
Interior and the Commissioner of Indian Affairs had decided that it
was necessary, in order to carry into effect the provisions of the
treaty referred to and set up by Holliday, that the tribal
organization should be preserved.
In both cases the questions were now, by certificate of
division, here.
Page 70 U. S. 413
MR. JUSTICE MILLER delivered the opinion of the Court. [
Footnote 4]
The questions propounded to this Court in the two cases have a
close relation to each other, and will be disposed of in one
opinion.
The first question on which the judges divided in the case
against Haas is
"whether, under the Act of February 13, 1862, the offense for
which the defendant is indicted was one of which the circuit court
could have original jurisdiction."
Previous to the Act of July 15, 1862, no circuit courts existed
in the districts of Texas, Florida, Wisconsin, Minnesota, Iowa, and
Kansas, but the district courts in those districts exercised the
powers of circuit courts. It was during this time that Haas was
indicted and convicted, and a motion in arrest of judgment was
pending and undetermined when that act went into effect. That act,
by its own terms, transferred to the circuit courts which it
created -- one of which was in the District of Minnesota -- all
causes, civil or criminal, which might have been brought, and could
have been originally cognizable in a circuit court. If, then, the
offense for which Haas was indicted was one which could have been
originally cognizable in a circuit court, it was properly in that
court for final determination; otherwise it was not.
The act under which the indictment was found says that if any
person shall commit the offense therein described, "such person
shall, on conviction before the proper District Court of the United
States, be imprisoned," &c.
So far as the act itself provides a court for its enforcement,
it is the district court, and not the circuit court.
An examination, however, of the several acts, which define
generally the relative jurisdiction of the district and circuit
courts of the United States leaves no doubt that, in regard to all
crimes, and offenses, it was intended to make the jurisdiction
concurrent, except in cases where the punishment is death. In that
class of offenses the jurisdiction
Page 70 U. S. 414
is exclusive in the circuit courts. The present offense,
however, is created after all of those acts were passed, and the
law defining it only confers jurisdiction on the district court.
Can the statutes, or any of them which give the circuit courts
concurrent jurisdiction of offenses cognizable in the district
courts, be held to have a prospective operation in such case as the
present?
The 12th section of the Judiciary Act, which created both the
circuit and district courts, says of the former, they
"shall have exclusive cognizance of all crimes and offenses
cognizable under the authority of the United States except where
this act otherwise provides or the laws of the United States shall
otherwise direct, and concurrent jurisdiction with the district
courts of crimes and offenses cognizable therein."
This provision has distinct reference in its first clause to
cases of which the circuit courts shall have exclusive
jurisdiction, and, in its latter clause, to cases in which they
shall have concurrent jurisdiction with the district courts. The
former include all crimes and offenses where some statute does not
provide the contrary. The latter include all crimes and offenses
cognizable in the district courts.
The Judiciary Act of 1789, of which these provisions constitute
a part, is the one which, for the first time under our federal
Constitution, created the courts which were to exercise the
judicial function of the government. The powers conferred by that
act on the several courts which it created, and the lines by which
it divided the powers of those courts from each other, and limited
the powers of all of them under the Constitution, were intended to
provide a general system for the administration of such powers as
the Constitution authorized the federal courts to exercise. The
wisdom and forethought with which it was drawn have been the
admiration of succeeding generations. And so well was it done that
it remains to the present day, with a few unimportant changes, the
foundation of our system of judicature, and the law which confers,
governs, controls, and limits the powers
Page 70 U. S. 415
of all the federal courts except the Supreme Court, and which
largely regulates the exercise of its powers.
It cannot be supposed under these circumstances that in giving
to the circuit courts jurisdiction of all crimes and offenses
cognizable in the district courts, it was intended to limit the
grant to such cases as were then cognizable in those courts. In
fact, there was, at the time this statute was passed, no such thing
as an offense against the United States unless it was treason as
defined in the Constitution. It has been decided that no common law
crime or offense is cognizable in the federal courts. The Judiciary
Act organizing the courts was passed before there was any statute
defining or punishing any offense under authority of the United
States. This clause, then, giving the circuit courts concurrent
jurisdiction in all cases of crime cognizable in the district
courts must of necessity have had reference to such statutes as
should thereafter define offenses to be punished in the district
courts.
The offense, then, for which Haas was indicted, although
declared by that act to be cognizable in the district courts, was,
by virtue of the act of 1789, also cognizable in the circuit
courts.
The second question in that case is this: whether, under the
facts above stated, any court of the United States had jurisdiction
of the offense?
The facts referred to are, concisely, that spirituous liquor was
sold within the territorial limits of the state of Minnesota and
without any Indian reservation, to an Indian of the Winnebago
tribe, under the charge of the United States Indian agent for said
tribe.
It is denied by the defendant that the act of Congress was
intended to apply to such a case, and, if it was, it is denied that
it can be so applied under the Constitution of the United States.
On the first proposition the ground taken is that the policy of the
act, and its reasonable construction, limit its operation to the
Indian country, or to reservations inhabited by Indian tribes. The
policy of the act is the protection of those Indians who are, by
treaty or otherwise,
Page 70 U. S. 416
under the pupilage of the government from the debasing influence
of the use of spirits, and it is not easy to perceive why that
policy should not require their preservation from this, to them,
destructive poison, when they are outside of a reservation as well
as within it. The evil effects are the same in both cases.
But the act of 1862 is an amendment to the 20th section of the
Act of June 30, 1834, and, if we observe what the amendment is, all
doubt on this question is removed. The first act declared that if
any person sold spirituous liquor to an Indian in the Indian
country he should forfeit five hundred dollars. The amended act
punishes any person who shall sell to an Indian under charge of an
Indian agent or superintendent appointed by the United States. The
limitation to the Indian country is stricken out, and that
requiring the Indian to be under charge of an agent or
superintendent is substituted. It cannot be doubted that the
purpose of the amendment was to remove the restriction of the act
to the Indian country, and to make parties liable if they sold to
Indians under the charge of a superintendent or agent, wherever
they might be.
It is next asserted that if the act be so construed it is
without any constitutional authority in its application to the case
before us.
We are not furnished with any argument by either of the
defendants on this branch of the subject, and may not therefore be
able to state with entire accuracy the position assumed. But we
understand it to be substantially this: that so far as the act is
intended to operate as a police regulation to enforce good morals
within the limits of a state of the Union, that power belongs
exclusively to the state, and there is no warrant in the
Constitution for its exercise by Congress. If it is an attempt to
regulate commerce, then the commerce here regulated is a commerce
wholly within the state, among its own inhabitants or citizens, and
is not within the powers conferred on Congress by the commercial
clause.
The act in question, although it may partake of some
Page 70 U. S. 417
of the qualities of those acts passed by state legislatures,
which have been referred to the police powers of the states, is, we
think, still more clearly entitled to be called a regulation of
commerce. "Commerce," says Chief Justice Marshall, in the opinion
in
Gibbons v. Ogden to which we so often turn with profit
when this clause of the Constitution is under consideration,
"commerce undoubtedly is traffic, but it is something more; it is
intercourse." The law before us professes to regulate traffic and
intercourse with the Indian tribes. It manifestly does both. It
relates to buying and selling and exchanging commodities, which is
the essence of all commerce, and it regulates the intercourse
between the citizens of the United States and those tribes, which
is another branch of commerce, and a very important one.
If the act under consideration is a regulation of commerce, as
it undoubtedly is, does it regulate that kind of commerce which is
placed within the control of Congress by the Constitution? The
words of that instrument are: "Congress shall have power to
regulate commerce with foreign nations, and among the several
states, and with the Indian tribes." Commerce with foreign nations,
without doubt, means commerce between citizens of the United States
and citizens or subjects of foreign governments as individuals. And
so commerce with the Indian tribes means commerce with the
individuals composing those tribes. The act before us describes
this precise kind of traffic or commerce, and therefore comes
within the terms of the constitutional provision.
Is there anything in the fact that this power is to be exercised
within the limits of a state which renders the act regulating it
unconstitutional?
In the same opinion to which we have just before referred, Judge
Marshall, in speaking of the power to regulate commerce with
foreign states, says, "The power does not stop at the
jurisdictional limits of the several states. It would be a very
useless power if it could not pass those lines." "If Congress has
power to regulate it, that power must be exercised
Page 70 U. S. 418
wherever the subject exists." It follows from these
propositions, which seem to be incontrovertible, that if commerce,
or traffic, or intercourse, is carried on with an Indian tribe or
with a member of such tribe, it is subject to be regulated by
Congress although within the limits of a state. The locality of the
traffic can have nothing to do with the power. The right to
exercise it in reference to any Indian tribe, or any person who is
a member of such tribe, is absolute, without reference to the
locality of the traffic or the locality of the tribe or of the
member of the tribe with whom it is carried on. It is not, however,
intended by these remarks to imply that this clause of the
Constitution authorizes Congress to regulate any other commerce,
originated and ended within the limits of a single state, than
commerce with the Indian tribes.
These views answer the two questions certified up in the case
against Haas, and the two first questions in the case against
Holliday.
The third question in Holliday's case is whether, under the
circumstances stated in the plea and replication, the Indian named
can be considered as under the charge of an Indian agent within the
meaning of the act?
The substance of the facts as set out in those pleadings is that
the Indian to whom the liquor was sold had a piece of land on which
he lived, and that he voted in county and town elections in
Michigan, as he was authorized to do by the laws of that state;
that he was still, however, so far connected with his tribe, that
he lived among them, received his annuity under the treaty with the
United States, and was represented in that matter by the chiefs or
head men of his tribe, who received it for him; and that an agent
of the government attended to this and other matters for that
tribe. These are the substantial facts pleaded on both sides in
this particular question, and admitted to be true, and without
elaborating the matter, we are of opinion that they show the Indian
to be still a member of his tribe, and under the charge of an
Indian agent. Some point is made of the
Page 70 U. S. 419
dissolution of the tribe by the Treaty of August 2, 1855, but
that treaty requires the tribal relation to continue until 1865,
for certain purposes, and those purposes are such that the tribe is
under the charge of an Indian superintendent, and they justify the
application of the act of 1862 to the individuals of that
tribe.
Two other questions are propounded by the judges of the Circuit
Court for the Eastern District of Michigan, both of which have
relation to the effect of the Constitution of Michigan and certain
acts of the legislature of that state in withdrawing these Indians
from the influence of the act of 1862.
The facts in the case certified up with the division of opinion
show distinctly
"that the Secretary of the Interior and the Commissioner of
Indian Affairs have decided that it is necessary, in order to carry
into effect the provisions of said treaty, that the tribal
organization should be preserved."
In reference to all matters of this kind, it is the rule of this
Court to follow the action of the executive and other political
departments of the government whose more special duty it is to
determine such affairs. If by them those Indians are recognized as
a tribe, this Court must do the same. If they are a tribe of
Indians, then by the Constitution of the United States they are
placed, for certain purposes within the control of the laws of
Congress. This control extends, as we have already shown, to the
subject of regulating the liquor traffic with them. This power
residing in Congress, that body is necessarily supreme in its
exercise. This has been too often decided by this Court to require
argument or even reference to authority.
Neither the Constitution of the state nor any act of its
legislature, however formal or solemn, whatever rights in may
confer on those Indians or withhold from them, can withdraw them
from the influence of an act of Congress which that body has the
constitutional right to pass concerning them. Any other doctrine
would make the legislation of the state the supreme law of the
land, instead of the Constitution
Page 70 U. S. 420
of the United States and the laws and treaties made in pursuance
thereof.
If authority for this proposition in its application to the
Indians is needed, it may be found in the cases of the
Cherokee
Nation v. State of Georgia, [
Footnote 5] and
Worcester v. State of Georgia.
[
Footnote 6]
The results to which we arrive from this examination of the law
as regards the questions certified to us is that both questions in
the case against Haas must be answered in the affirmative, and in
the case against Holliday, the first three must be answered in the
affirmative, and the last two in the negative.
It is, however, proper to say, that in the fourth question in
the latter case is included a query whether the Indian Otibsko was
a citizen of the state of Michigan,
As the views which we have advanced render this proposition
immaterial to the decision of the case, the court is to be
understood as expressing no opinion upon it.
[
Footnote 1]
12 Stat. at Large 339.
[
Footnote 2]
4 Stat. at Large 732.
[
Footnote 3]
9
id. 73.
[
Footnote 4]
NELSON, J., not sitting, having been indisposed.
[
Footnote 5]
30 U. S. 5 Pet.
1.
[
Footnote 6]
31 U. S. 6 Pet.
515.
