Submitted October 15, 1909. Decided December 20, 1909.
United States v. Celestine, ante, p. 278, followed, as to continuance of jurisdiction of United States over offenses committed within the limits of an Indian reservation. The Indians, as wards of the Government, are the beneficiaries of the prohibition against the introduction of liquor into Indian country; and, under the Washington enabling act, jurisdiction and control over Indian lands remains in the United States, and Congress has power to prohibit and punish the introduction of liquor therein. The limits of an Indian reservation are not changed by allotments in severalty during the trust period, and, where the lands allotted are subject to restrictions against alienation and to defeasance, the prohibition against liquor continues to be effective.
"ARTICLE VI. The President may, from time to time, at his discretion, cause the whole or such portions of such reservation as he may think proper, to be surveyed into lots, and assign the same to such individuals or families of the said confederated tribes and bands of Indians as are willing to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable."The demurrer was sustained, and thereupon the Government brought the case here on writ of error under the act of March 2, 1907, c. 2564, 34 Stat. 1246.
Mr. Assistant Attorney General Harr for the United States.
There was no appearance or brief for the defendant in error.
The question whether the indictment charges any offense against the laws of the United States involves the validity of the act of January 30, 1897, as applied to the facts stated, and therefore the case is one properly before us under the act providing for writs of error in certain instances in criminal cases. Ch. 2564, 34 Stat. 1246; United States v. Keitel, 211 U.S. 370, 397.
We have recently considered, in United States v. Celestine, ante, the question of the jurisdiction of the United States over offenses committed within the limits of a reservation, as also the effect of allotments therein upon its continued existence, and further discussion of those matters is unnecessary. The limits of the Yakima Reservation were not changed by virtue of the allotments that are referred to in the stipulation of facts. The lands allotted were subject to restrictions against alienation, and the title which was conferred by the allotments was subject to defeasance. Sixth Article, Treaty with the Omahas, 10 Stat. 1043-5; United States v. Celestine. The offense charged was not one committed by a white man upon a white man, United States v. McBratney, 104 U.S. 621; Draper v. United States, 164 U.S. 240, or by an Indian upon an Indian, United States v. Celestine, ante, but it was the introduction of liquor into an Indian reservation. In this offense neither race or color are significant. The Indians, as wards of the Government, are the beneficiaries, but for their protection the prohibition is against all, white man and Indian alike. Legislation of this nature has been for a long time in force. Fourth sec., chap. 174, Laws 1832, 4 Stat. 564; § 2139, Rev. Stat. If the Yakima Reservation were within the limits of a Territory there would be no question of the validity of the statute under which this indictment was found, but the contention is that the offense charged is of a police nature and that the full police power is lodged in the State, and by it alone can such offenses be punished. By the second paragraph of § 4 of the enabling act with respect to the State of Washington, (c. 180, 25 Stat. 677,) the people of that State disclaimed all right and title "to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States." Construing this, in connection with other provisions of the enabling act, it was held in Draper v. United States, 164 U.S. 240, that it did not deprive the State of jurisdiction over crimes committed within a reservation by others than Indians or against Indians, following in this United States v. McBratney, 104 U.S. 621. But in terms "jurisdiction and control" over Indian lands remain in the United States, and there being nothing in the section withdrawing any other jurisdiction than that named in Draper v. United States, undoubtedly Congress has the right to forbid the introduction of liquor and to provide punishment for any violation thereof. Couture, Jr., v. United States, 207 U.S. 581. It is true that only a per curiam opinion was filed in that case, and the judgment was affirmed on the authority of United States v. Rickert, 188 U.S. 432; McKay v. Kalyton, 204 U.S. 458, but an examination of the record shows that its facts are similar to those in the present case. See also an opinion by Shiras, District Judge, in United States v. Mullin, 71 F. 682, and one by Circuit Judge Van Devanter, speaking for the Circuit Court of Appeals for the Eighth Circuit, in Rainbow v. Young, 161 F. 835.
Without pursuing the discussion further, we are of opinion that the District Court erred in its ruling, and the judgment is