Brown v. United States , 8 F.2d 433 ( 1925 )

HUNT, Circuit Judge.

Evelyn Brown was convicted of selling intoxicating liquor to one Enis, a Maricopa Indian under charge of an Indian Agent, and a ward of the United States. The indictment is drawn under the Act of Congress of January 30, 1897 (chapter 109, § 1, 29 St. 506 [Comp. St. § 4137]),, which provides that any person who shall sell liquor or any article which produces intoxication, to an Indian to whom an allotment of land has been made, while the title to the same shall be held in trust by the government, or to any Indian, a ward of the government in charge of any Indian superintendent or agent, or any Indian over whom the government, through its departments, exercises guardianship, and any person who shall introduce liquor into the Indian country, shall be punished by imprisonment for not less than 60 days and by a fine of not less than $100 for the first offense, and not less than $200 for each offense thereafter. That act was amendatory of section 2139 (Comp. St. § 4136a), which provided that every person (except an Indian in an Indian country) who soils or disposes of any spiritous liquor to an Indian under the charge of any Indian superintendent or agent, or who introduces or attempts to introduce any spirituous liquor or wine into the Indian country shall be punishable by imprisonment of not more than 2 .years and by a fine of not more than $300. The sentence imposed was 2 years’ imprisonment and a fine of $200. Motion in arrest of judgment was overruled, and writ of error was brought to review the judgment.

Upon the trial it was stipulated that defendant is a native-born Indian and an allottee of reservation land in Arizona, and is under the charge of a United States Indian agent.

Plaintiff contends that (a) the indictment states no offense, in that the statutes under which it was drawn have been modified, superseded, and repealed by the Eighteenth Amendment to tho Constitution of the United States and by the National Prohibition Act of October 28, 1919 (Comp. St. Ann. Supp. 1923, § 10138% et seq.), in so far as such laws are applicable to any part of the United States except Indian, country; and (b) that, by the Act of June 2, 1924 (chapter 233, 43 St. 253 [Comp. St. Supp. 1925, § 3951aa]), full and unqualified citizenship was granted to-all native-born noncitizen Indians, and that thereupon the Indian to whom it is charged the liquor was sold ceased to bo a ward of the United States.

Considering, the first point, it is always to be kept in mind that the statute of January 30, 1897, rests upon the governmental policy of protection of Indians who are wards of the government from the dangers and evil effects of drinking intoxicating liquor. The statute is special in respect to Indians and Indian country (Kennedy v. United States, 265 U. S. 344, 44 S. Ct. 501, 68 L. Ed. 1045), and, in view of the underlying policy of the legislation, we see no ineompatibility between it and the National Prohibition Act, which was enacted to enforce the Eighteenth Amendment. We therefore hold that there was no repeal (United States v. Stafoff, 260 U. S. 477, 43 S. Ct. 197, 67 L. Ed. 358; McClintic v. United States [C. C. A.] 283 F. 781).

Whether the plaintiff in error Indian was so far emancipated by the Act of June 2,1924 (43 St. 1923-24, pt. 1, p. 253), as to be withdrawn from the provisions of the spe-> cial act is the next question. By the Act of June 2, 1924, all noncitizen Indians born in the United States are declared to be citizens of the United States, provided that the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property. If the interpretation adopted in Re Heff, 197 U. S. 488, 25 S. Ct. 506, 49 L. Ed. 848, still obtained, we should have to hold’ that the plaintiff in error being an allottee and a citizen of the United States and of Arizona guardianship by the United States was abandoned, and he became subject to the laws passed in the exercise of the police power of the state of Arizona and to the provisions of the National Prohibition Act. But the reasoning upon which the court founded its conclusion in the Heff Case was that the Act of January 30, 1897, supra, forbidding the sale of liquor to Indians, allottees made citizens, was an' exercise ■ of police power by Congress and not of the power given under section 8, art. 1, of the commerce clause of the Constitution. That view,’ however, has been held erroneous, and the Heff Case has been expressly overruled in United States v. Nice, 241 U. S. 591, 36 S. Ct. 696, 60 L. Ed. 1192, upon the ground that the legislation (section 2139, R. S.) which forbids sale of liquor to Indians was enacted, not under the police power, but under the commerce clause of the Constitution, and also because of the right of Congress to legislate with respect to Indian tribes in dependent relation to the United States.

In the Nice Case, the court cited United States v. Holliday, 3 Wall. 407, 18 L. Ed. 382,i decided many years before the Heff Case, where, in stating the propositions affirmed in the Nice Case, the court also held that the locality of the traffic can have nothing to do with the power residing in Congress to legislate concerning Indian tribes. In the Holliday Case, as here, liquor was sold in a state and without an Indian reservation to an Indian under the charge of an agent. The distinction between the Holliday Case and that under consideration is that it does not appear here that the Indian involved in this matter was a member of an Indian tribe, whereas the Indian concerned in the Holliday Case was one of a tribe. But it does appear that Enis was an Indian under the charge of an Indian agent in Arizona and was an allottee of land; and, as the clear purpose of the cited legislation of 1897, prohibiting sales of liquor to Indians whether within or outside of reservations, was to protect the Indians under pupilage of the United States, and as an allottee is still in a more or less dependent relationship, logically* it must follow that commerce with an individual Indian allottee, is prohibited as is commerce with a tribe or an individual having tribal connections. “Commerce with Indian tribes,” said Justice Miller in the Holliday Case, “means commerce with the individuals comprising those tribes.” And that citizenship is not incompatible with tribal relation was expressly held in the Nice Case, supra, again citing the Holliday Case to the point that it was immaterial to the decision that the Indian had become a citizen of the state. Again, in the earlier ease of Hallowell v. United States, 221 U. S. 321, 31 S. Ct. 587, 55 L. Ed. 750, it was held that -an Indian allottee of land, though a citizen of the United States, and entitled to the rights, privileges, and immunities of such citizenship, was still a ward of the government; citizenship not necessarily taking away jurisdiction of the United States to protect the Indian from the evil results of intoxicating liquor as was done in the Act of January 30, 1897.

We therefore believe that, in the absence of expression of clear intent to abandon special protection against the evils of intoxicating liquor, the Indian allottee holding the land allotted subject to restrictions placed by Congress is still to be accorded protection as one of the Indian race. Bowling v. United States, 233 U. S. 528, 34 S. Ct. 659, 58 L. Ed. 1080.

The judgment is affirmed.