United States v. Forty-Three Gallons of Whisky

Asst. Atty. Gen. Maury, for appellant.

C. K. Davis, for appellees.

FIELD, J.

By the treaty between the Red Lake and Pembina bands of Chippewa Indians and the United States, concluded on the second of October, 1863, those Indians ceded to the United States their right, title, and interest to certain lands owned and claimed by them in the state of Minnesota and the territory of Dakota. 13 St. 667. The seventh article of the treaty stipulated that the laws of the United States then in force or that might thereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, should be in full force and effect throughout the country thereby ceded until otherwise directed by congress or the president of the United States. The twentieth section of the act of June 30, 1834, entitled 'An act to regulate trade and intercourse with the Indian tribes, and to preserve pease on the frontier,' (4St. 729,) as amended by the act of March 15, 1864, (13 St. 29,) was in force when this treaty was made; and it forbids any one, under certain penalties, to sell or dispose of any spirituous liquors or wine to an Indian under the charge of an Indian superintendent or agent; or to introduce or to attempt to introduce them into the Indian country, unless done by order of the war department or of some authorized officer under it. And the section provides for the seizure and forfeiture of liquors thus introduced, and the goods and property of the party violating the statute with which they are found. The following is the section as amended:

'Sec. 20. And be it further enacted, that if any person shall     sell, exchange, barter, or dispose of any spirituous liquors      or wine to any Indian under the charge of any Indian      superintendent or Indian agent appointed by the United      States, or shall introduce or attempt to introduce any      spirituous liquor or wine into the Indian country, such      person, on conviction thereof before the proper district or      circuit court of the United States, shall be imprisoned for a      period not exceeding two years, and shall be fined not more      than $300: provided, however, that it shall be a sufficient      defense to any charge of introducing or attempting to      introduce liquor into the Indian country if it be proved to      be done by order of the war department, or any officer duly      authorized thereunto by the war department. And if any     superintendent of Indian affairs, Indian agent, or subagent,      or commanding of a military post, has reason to suspect or is      informed that any white person or Indian is about to      introduce or has introduced any spirituous liquor or wine      into the Indian country, in violation of the provisions of      this section, it shall be lawful for such superintendent,      subagent, or commanding officer to cause the boats, stores, packages, wagons, sleds, and other places of deposit      of such person to be searched; and if any such liquor is      found therein, the same, together with the boats, teams,      wagons, and sleds used in conveying the same, and also the      goods, packages, and peltries of such person, shall be seized      and delivered to the proper officer, and shall be proceeded      against by libel in the proper court, and forfeited, one-half      to the informer and the other half to the use of the United      States; and if such person be a trader, his license shall be      revoked and his bonds put in suit. And it shall, moreover, be     the duty for any person in the service of the United States,      or for any Indian, to take and destroy any ardent spirits or      wine found in the Indian country, except such as may be      introduced therein by the war department. And in all cases     arising under this act Indians shall be competent witnesses.'

Under this section the present libel of information was filed in the district court of the district of Minnesota, to enforce the forfeiture of certain spirituous liquors, which are particularly described, and other merchandise found with them at the time of seizure. In one of its counts the libel sets forth that Bernard Lariviere, a white person, late of the village of Crookston, county of Polk, and state of Minnesota, did, on the second of February, 1874, unlawfully carry and introduce into the country ceded to the United States under the treaty mentioned-namely, into the county of Polk, which is a part of the ceded country-the spirituous liquors described; that such introduction was in violation of the provisions of the twentieth section of the act of congress above quoted; that he owned, and at the tme had in his possession with the liquors, a quantity of goods, packages, and peltries, a list of which is contained in a schedule annexed to the libel; that an Indian agent, duly appointed, having reason to suspect, and having been informed, that spirituous liquors had been introduced by Lariviere, caused his stores, packages, and peltries to be searched, and there found the liquors mentioned, which he in consequence seized, together with the other goods. In another count the libel sets forth substantially the same matters, with the addition that the liquors were introduced into the country ceded with intent to sell, dispose of, and distribute the same among the bands and tribes of Chippewa Indians then under charge of the Indian agent, and frequenting the county of Polk and village of Crookston, and living there or near the place.

To this libel Lariviere and one Clovis Guerin appeared as claimants of the goods seized, and demurred to the libel on the ground that the court had no jurisdiction; that the property was never introduced into the Indian territory, but, as appeared by the libel, was searched and seized in an organized county of the state of Minnesota, and hence that the seizure was without authority of law. The demurrer thus interposed was sustained by the district court, and judgment rendered against the United States, and this judgment was affirmed by the circuit court. The case was then brought to this court, where the judgment was reversed and the cause remanded, with directions to overrule the demurrer. Several important legal and constitutional questions were raised on the argument here, and it was held that congress, under its constitutional power to regulate commerce with the Indian tribes, may not only prohibit the introduction and sale of spirituous liquors in the Indian country, but extend such prohibition to territory in proximity to that occupied by Indians; that it is competent for the United States, in the exercise of the treaty-making power, to stipulate in a treaty with an Indian tribe that within the territory thereby ceded the laws of the United States, then and thereafter enacted, prohibiting the introduction and sale of spirituous liquors in Indian country, shall be in full force and effect until otherwise directed by congress or the president of the United States, and that a stipulation to that effect will operate proprio vigore, and be binding upon the courts, although the ceded territory is situated within an organized county of a state. These conclusions are stated in a very clear and able opinion by Mr. Justice DAVIS, which is reported in 93 U.S. 192.