United States v. Holliday

THESE were indictments, independent of each other, for violations of the act of Congress of February 13, 1862, 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, 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, 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 offence charged and while a motion in arrest of judgment was pending and undetermined in the District Court.

IN HAAS'S 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 offence 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 offence? IN 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 in so far 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 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.

Mr. Romeyn, for Holliday; no counsel appearing for Haas: The cases in many features are alike. To some extent, the argument for one serves for both; though the first question certified in Haas's case does not arise in Holliday's.

As respects Holliday the question is, whether the United States can punish, as a criminal offence, the selling of liquor to an Indian who is connected with a tribal organization only so far as to receive his allowance from the United States, through the chief or head man? who is a land-owner in his own individual right, and a tax-payer in one of the States of the Union; when the liquor was sold, not on an Indian reserve, but in an organized county of a State; a district as exclusively under the jurisdiction of the State as the city of New York is under the jurisdiction of the State of New York. If so, then if the liquor had been sold to this Indian at the Astor House in New York, the proprietors of that house would be liable, on the same principles, and to the same extent as this defendant.

I. On every principle, the act of 1862 is to receive a strict construction. It is a penal act. It is of doubtful constitutionality.

No violence is done to the language of the statute, by confining its operation to Indians under the charge of an agent within the Indian country; for it was the evident policy of the act to protect the Indian, within the Indian country; and in addition, that policy is sufficiently sustained by the construction that the introduction of liquors into the Indian country shall be illegal.

Suppose that a civilized, educated Indian, a citizen of another State, should accept a glass of wine at a military post; would that be an offence under this act? We should think not.

II. If the act of 1862 be so construed as to embrace this charge, under the admitted facts of the case, then its enactments are beyond the powers of Congress, in conflict with the rights of the State, and are so far void.

As the offence was not committed in any place within the exclusive jurisdiction of the United States, the right of Congress to legislate for its punishment can be founded only on the notion that it was an offence against Federal sovereignty. But Congress has never claimed, and cannot lawfully exercise the power of legislating for Indians, except as tribes or quasi domestic nations. When they lose this relation and character, and become citizens of a State, or as individuals become separated from their ordinary tribal connections, they pass from the jurisdiction of the United States. The limits of the agency are established, as all know, by tribes or geographical boundaries. The general duty of the agent is to manage and superintend the intercourse with the Indians. This assumes their separate and social condition.

The facts show that, in the case of Otibsko, to whom in Holliday's case the liquor is said to have been sold, the tribal organization was, in fact, dissolved. The lands given to the Chippeways, it is plain, were owned in severalty; and all that remained of the tribal association was connected with the convenience of paying annuities. This Indian, moreover, became a citizen of the State of Michigan.

Conceding, for the sake of the argument, that the Indian was a member of a subsisting tribe, and under the charge of an Indian agent; still, after he came within the limits of the State, away from the Indian country, or any Indian reservation, he became subject to the laws of the State, and it was incompetent for the United States to take cognizance of the act charged, and to punish it as a crime against the Federal government. The whole subject of the regulation of the use and sale of liquors, within the State, and away from Indian reservations, is a matter for the State, in the exercise of its police powers. The State of Michigan has exercised this power, and prescribed the penalty, and the offence was within the jurisdiction of that State.

This legislation, as construed by the government in this case, cannot be sustained under the power of Congress to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; for the act of 1862 is not, in any way, a regulation of commercial intercourse.

After a thorough argument, contra, by Mr. Assistant Attorney-General Ashton, who went into the whole policy of the government as respects sales of liquor to the Indians, setting forth the statutes regarding them, and the decisions which bore upon them, Mr. Justice MILLER delivered the opinion of the court.