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U.S. Supreme Court

United States v. Forty-three Gallons of Whiskey, 93 U.S. 188 (1876)

United States v. Forty-three Gallons of Whiskey

93 U.S. 188


1. Congress, under its constitutional power to regulate commerce with the Indian tribes, may not only prohibit the unlicensed introduction and sale of spirituous liquors in the "Indian country," but extend such prohibition to territory in proximity to that occupied by Indians.

2. It is competent for the United States, in the exercise of the treatymaking power, to stipulate in a treaty with an Indian tribe that, within the territory thereby ceded, the laws of the United States then or thereafter enacted prohibiting the introduction and sale of spirituous liquors in the Indian country shall be in full force and effect until otherwise directed by Congress or the President of the United States.

3. Such a stipulation operates proprio vigore, and is binding upon the courts, although the ceded territory is situate within an organized county of a state.

This is a libel of information by the United States against

Page 93 U. S. 189

forty-three gallons of whiskey, sundry peltries, and other goods and merchandise, seized as forfeited by virtue of the twentieth section of the Act of Congress approved June 30, 1834, as amended by the Act approved March 15, 1864.

There are two special counts in the libel. The first, in substance, sets forth that on Feb. 12, 1872, Bernard Lariviere, a white person, of the Village of Crookston, in the County of Polk and State of Minnesota, did unlawfully carry and introduce into said village, which is located upon the territory ceded to the United States by treaty with the Red Lake and Pembina bands of Chippewa Indians made and concluded Oct. 3, 1863, and proclaimed May 5, 1864, the spirituous liquors particularly described, contrary to the treaty and the act of Congress above cited; that an Indian agent, duly appointed, having reason to suspect and being informed that spirituous liquors had been introduced by said Lariviere into said County of Polk in violation of the act of Congress, searched and caused to be searched the goods, merchandise, peltries &c., which he had in his possession at Crookston, in the ceded territory aforesaid, upon which search the whiskey was found stored, packed, and mingled with and in the packages, goods, and peltries, and in the places of deposit of said Lariviere, and was so carried and introduced into the ceded territory contrary to the form of statute of the United States in such case made and provided, and was seized and taken by the Indian agent as forfeited, together with all the goods and peltries, &c., so found.

The second count sets forth that the whiskey was introduced with the intent to sell, dispose of, and distribute the same to and among the bands and tribes of Chippewa Indians who frequented the Village of Crookston, and lived under the charge of an Indian agent upon a reservation near that place.

The information prays that the said goods, merchandise, peltries &c., may be decreed and declared forfeited, and the forfeiture properly enforced.

Lariviere, a claimant, who first appeared in response to the monition, demurred and excepted to the libel upon the ground that it appeared from its recitals that the court had no jurisdiction; that the property never was introduced, nor was it

Page 93 U. S. 190

intended to be introduced, into any Indian country, but that it was affirmatively shown by the libel that it was searched and seized at Crookston, in the County of Polk and State of Minnesota, the same being an organized county, and said Crookston not being in or adjoined to or near any Indian country; hence that the seizure was without any authority of law &c. Grant, another claimant, also excepted and demurred because it appeared in the libel that the goods were seized within the jurisdiction of the State of Minnesota and not on any lands within any Indian country or in any country exclusively within the jurisdiction of the United States.

The court below sustained the demurrer and exceptions and dismissed the libel.

The United States thereupon sued out this writ of error.

The Act of March 15, 1864, 13 Stat. 29, is as follows:

"Be it enacted, &c., that the twentieth section of the 'Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers,' approved June 30, 1834, be, and the same is hereby, amended, so as to read as follows, to-wit:"

" SEC. 20. And be it further enacted that if any person shall sell, exchange, give, 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 sub-agent, or commanding officer 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, agent, sub-agent, or commanding officer to cause the boats, stores, packages, wagons, sleds, and other places of deposit

Page 93 U. S. 191

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."

Art. 7 of the Treaty between the United States, concluded Oct. 3, 1863, and the Red Lake and Pembina band of Chippewa Indians, proclaimed May 5, 1864, 13 Stat. 668, is as follows:

"The laws of the United States now in force, 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."

Submitted on printed arguments by Mr. Assistant Attorney-General Smith for the plaintiff in error.

Trade with Indian tribes is in all its forms subject exclusively to the regulations of Congress. Duer's Const.Jur. 281; Rawle on the Const., c. 9, 84; 2 Story on Const., secs. 1097-1101.

The mere erection of the Territory of Minnesota into a state did not ipso facto cause it to cease to be "Indian country." United States v. Bailey, 1 McLean 235; United States v. Cisna, id., 254; United States v. Ward, 1 Woolw.C.C. 19, 21.

The act of 1834, as amended by that of 1864, is a "regulation of commerce," and therefore within the constitutional powers of Congress. United States v. Holliday, 3 Wall. 417.

Congress, having the power to define the "Indian country" and prohibit the unlicensed introduction and sale of liquors within it, can either enlarge or diminish the boundaries of such country, as it deems best for the interests of intercourse or commerce.

Page 93 U. S. 192

Where the United States recognizes and declares the tribal condition of Indian bands, the courts will follow. Cherokees v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515.

The United States has, by treaty with the Indians, extended its laws to the territory in which this liquor was seized.

A treaty, as the law of the land, is superior to any state legislation, and is valid even as a municipal regulation, until superseded by some act of Congress. Ware v. Hylton, 3 Dall. 236; Taylor v. Morton, 2 Curtis C.C. 454; 1 Story on Const., sec. 1838; Worcester v. Georgia, supra.

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