UNITED STATES SUPREME COURT DECISIONS ON-LINE

Where complainant's entire case rests on the construction of treaties with Indians in regard to reservations and on the claim that certain of such treaties have been repealed by the subsequent admission of the territory within which the reservations are situated, this Court has jurisdiction of a direct appeal from the district court under § 238, Judicial Code.

The provision in Article VII of the Treaty with the Minnesota Chippewa Indians of 1855, that the laws of Congress prohibiting the manufacture and introduction of liquor in Indian country shall be in force within the entire boundaries of the country ceded by that treaty to the United States until otherwise provided by Congress, relates to the outer boundaries and includes all the reservations that lie within.

It is within the constitutional power of Congress to prohibit the manufacture, introduction, or sale of intoxicants upon Indian lands, including not only land reserved for their special occupancy but also lands outside of the reservations to which they may naturally resort, and this prohibition may extend even with respect to lands lying within the bounds of states.

Article VII of the Chippewa Treaty of 1855 was not repealed directly or by implication by the subsequent act of Congress admitting Minnesota into the Union, nor was that article repealed by the effect of the subsequent treaties with the same bands of Chippewas of 1865 and 1867, but the intent of Treaties of 1855, 1865 and 1867, as construed clubjuris

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together, was that the acts of Congress relating to the introduction and sale of liquor in Indian country should continue in force within the entire boundaries of the country in question until otherwise provided by Congress.

Article VII of the Chippewa Treaty of 1855 has not been superseded by any of the provisions of the Nelson Act of 1889, or the cessions made by the Indians to the United States pursuant thereto, nor has that article been superseded by reason of any change in the character of the territory affected by the treaty and the status of the Indians therein.

The abrogation of an article in an Indian treaty prohibiting the sale of liquor within territory specified therein until Congress otherwise provides is, in the absence of any considerable number of Indians remaining in that territory, a question primarily for Congress, and not for the courts.

The fact that there has been a recent communication and recommendation from the President to Congress on a particular subject and Congress has not acted thereon is evidence that the problem is not so entirely obvious of solution that the courts can declare it to be beyond the range of legislative discretion.

Article VII of the Chippewa Treaty of 1855 having provided for the prohibition against sale of liquor within the entire territory ceded by that treaty until Congress should otherwise provide, held that, notwithstanding the subsequent admission of Minnesota to the Union, and the later treaties with the Chippewas of 1865 and 1867 and the changed condition of the country and the status of the Indians, Congress not having otherwise provided, the prohibition is still in force throughout that entire territory, including the City of Bemidji, in which there are but few Indians and in the vicinity of which there is a large area of territory unrestricted by the prohibitions of Article VII.

183 F.6d 1 reversed.

This is a direct appeal from a final decree of the district court, rendered April 20, 1912, granting to appellees (who were complainants below, and will be so designated), a permanent injunction against appellants (defendants below) in accordance with the prayer of the amended bill of complaint. It appears that complainants are severally residents and citizens of the City of Bemidji, Beltrami County, Minnesota, and at the time of the filing of the clubjuris

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bill were, and for a considerable time had been, engaged in business there as saloon keepers, selling at retail spirituous, vinous, and malt liquors at their respective places of business in that city, each of them having paid to the federal and state governments, respectively, the necessary tax and license fees, and having a receipt from the federal government and a liquor license issued under the authority of the State of Minnesota by the municipal council and officials of the city. The bill alleged that each of the complainants had refrained from selling or disposing of any liquor to Indians, or individuals of Indian blood, and had complied with the federal and state laws in this and in other respects; that each of them had built up and established a profitable and lucrative trade, and that the jurisdictional amount was involved. It averred that defendants, being citizens of other states, and acting in conjunction as special officers under the Interior Department of the United States Government, were threatening to enforce within the City of Bemidji the provisions of §§ 2139 and 2140 of the Revised Statutes of the United States and amendments thereto, and on December 9, 1910, had ordered complainants and other licensed saloon keepers in Bemidji to close their saloons and cease sales of liquor, and ship away their stock, threatening that otherwise they would destroy the stocks of liquor in the possession of complainants on the ground that, under Article VII of a Treaty made on the 22d day of February, 1855, between the United States and certain bands of Chippewa Indians, certain territory mentioned in the treaty, including what is now the City of Bemidji, was subject to the laws of the United States respecting the sale of liquors in the Indian country.

To the bill as originally filed defendants interposed a demurrer, which was overruled, and a temporary injunction was granted. 183 F.6d 1. Thereafter, the cause was brought to final hearing upon an amended bill clubjuris

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and a re-amended answer, and the court, adhering to its former conclusion, rendered a final decree, as already mentioned.

The pertinent historical facts, as deduced from the averments of the amended pleadings, are as follows: on and prior to February 22, 1855, certain bands of the Chippewa Tribe of Indians known as the Mississippi Bands and the Pillager and Lake Winnibigoshish Bands, were in possession of the greater portion of the lands north of parallel 46 within the boundaries of the then Territory of Minnesota. Their country constituted a wilderness, almost wholly uninhabited by civilized people. On the date mentioned, these bands entered into a treaty with the United States, which was approved by the Senate and proclaimed by the President shortly thereafter (10 Stat. 1165). By its first article, the Indians ceded and conveyed to the United States

"all their right, title, and interest in and to the lands now owned and claimed by them, in the Territory of Minnesota, and included within the following boundaries."

(Here follows a particular description, by natural boundaries, of a tract of country said to contain about 21,000 square miles.) By the same article, the Indians further relinquished and conveyed to the United States any and all right, title, and interest, of whatsoever nature, that they then had in and to any other lands in the territory of Minnesota or elsewhere. This article mentions no exception or reservation from the lands ceded or granted. By Article II, there was

"reserved and set apart a sufficient quantity of land for the permanent homes of the said Indians, the lands so reserved and set apart to be in separate tracts, as follows."

The separate tracts were then briefly described or indicated. For the Mississippi Bands, six reservations were set apart, which came to be known as the Mille Lac, Rabbit Lake, Gull Lake, Pokagomon Lake, Sandy Lake, and Rice Lake Reservations, and besides these, a section of land was clubjuris

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reserved for one of the Indian chiefs. For the Pillager and Lake Winnibigoshish Bands, three reservations were set apart, known from their respective locations as the Leech Lake, Lake Winnibigoshish, and Cass Lake Reservations.

The seventh Article of the treaty is as follows:

"Article VII. The laws which have been or may be enacted by Congress, regulating trade and intercourse with the Indian tribes, to continue and be in force within and upon the several reservations provided for herein, and those portions of said laws which prohibit the introduction, manufacture, use of, and traffic in, ardent spirits, wines, or other liquors, in the Indian country, shall continue and be in force within the entire boundaries of the country herein ceded to the United States until otherwise provided by Congress."

By Act of February 26, 1857, 11 Stat. 166, c. 60, the inhabitants of a portion of the territory, including the lands ceded by the Chippewas as above, were authorized to form a state government and come into the Union on an equal footing with the original states. The act contained no condition with reference to the Treaty of 1855 or the rights of the Indians to any lands within the boundaries of the state. A state constitution was formed by which Indians were given the right to vote under certain circumstances, and persons residing on Indian lands were declared entitled to enjoy the rights and privileges of citizens as though they lived in any other portion of the state, and to be subject to taxation. This constitution having been ratified and adopted by the people, Congress, by Act of May 11, 1858, 11 Stat. 285, c. 31, admitted the state "on an equal footing with the original states in all respects whatever." And by § 3 it was enacted that all the laws of the United States not locally inapplicable should have the same force and effect within that state as in other states of the Union. clubjuris

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Another treaty was made between the Mississippi, Pillager, and Lake Winnibigoshish Bands of Chippewas and the United States under date May 7, 1864, which was ratified and proclaimed in the following year, and is known as the Treaty of 1865 (13 Stat. 693). It took the place of a Treaty of March 11, 1863 (12 Stat. 1249). By its first section, the Gull Lake, Mille Lac, Sandy Lake, Rabbit Lake, Pokagomon Lake, and Rice Lake Reservations, as described in the Treaty of 1855, were ceded to the United States, with an exception not now pertinent, and in consideration of this cession, the United States agreed to set apart for the future home of the Chippewas of the Mississippi a considerable tract of land (part of the great tract ceded in 1855), embraced within designated boundaries, expressly excepting, however, the reservations made in the Treaty of 1855 for the Pillager and Lake Winnibigoshish Bands which were included within the boundaries mentioned. The lands thus set apart for the Chippewas of the Mississippi contained all the territory now within the limits of the City of Bemidji and the lands adjacent to it for a distance of several miles in all directions.

By a treaty made between the United States and the Chippewas of the Mississippi, dated March 19, 1867, ratified and proclaimed in the same year (16 Stat. 719), these bands ceded to the United States the greater portion (estimated at 2,000,000 acres) of the lands secured to them by the Treaty of 1865, and, in consideration of this cession, the United States set apart for the use of the same Indians a tract to be located in a square form as nearly as possible, with lines corresponding to the government surveys, the reservation to include White Earth Lake and Rice Lake, and to contain thirty-six townships. This reservation came to be known as the White Earth Reservation. It lies within the exterior boundaries of the cession of 1855.

The territory ceded to the United States by the Treaty clubjuris

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of 1867 contains what is now the City of Bemidji and the country about it for miles in every direction.

By an Act of January 14, 1889, known as the Nelson Act, 25 Stat. 642, c. 24, the President was authorized to designate commissioners to negotiate with all the different bands of Chippewa Indians in Minnesota for the complete cession and relinquishment of their title and interest in all their reservations, except the White Earth and Red Lake Reservations and in so much of these two reservations as, in the judgment of the Commission, was not required to make and fill the allotments required by this and existing acts. The act provided that a census should be taken, and that, after the cession and relinquishment had been approved, all the Chippewa Indians in the state except those on the Red Lake Reservation should be removed to the White Earth Reservation, and lands should then be allotted to the Indians in severalty, in conformity with the Act of February 8, 1887, 24 Stat. 388, c. 119, and the surplus lands disposed of by sale, and the proceeds placed in the Treasury of the United States to the credit of all the Chippewa Indians in the State of Minnesota as a permanent fund, to bear interest payable annually for fifty years, and at the end of that period, the fund to be divided and paid to all of said Chippewas, and their issue then living, in cash. By the first section of this act, the acceptance and approval of the cession and relinquishment of the lands by the President of the United States was to be deemed full and ample proof of the assent of the Indians, and to operate as a complete extinguishment of the Indian title without further act or ceremony. Commissioners were appointed accordingly, and agreements were entered into between them and the several bands of Chippewas by which the Indians accepted and ratified the provisions of the act and ceded to the United States all their right, title, and interest in their reservations, excepting portions of clubjuris

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the White Earth and Red Lake Reservations, and these cessions were approved by the President on the fourth day of March, 1890.

Since the making of the Treaty of 1855, the country then ceded to the United States, with the exception of the portions set apart as Indian Reservations, has been largely developed, gradually at first, but with great rapidity during recent years, and all the land has become populated by white people, and opened up to settlement, and organized as political subdivisions of the state, and in the larger portion of the territory industries have been established and commercial interests have grown up, so as to materially change the situation that existed at the time of the making of the treaty. According to the census of 1910, the counties affected by that treaty show a total white population of 382,191. Bemidji is the county seat of Beltrami County, and is a municipal corporation, organized under the laws of the state as a city, containing within its corporate limits about 7,000 inhabitants, and, in connection with adjacent municipalities, constituting a population of about 9,000 people. The city is reached by five lines of railroads, three of which have transcontinental connections. The country surrounding it is highly developed, and there are no Indian habitations within twenty miles in any direction from the city.

The original Red Lake Indian Reservation lay immediately north of the great tract covered by the cession of 1855, and was not subject to the treaty of that year. Pursuant to the Nelson Act of January 14, 1889, a considerable portion of this reservation was relinquished to the United States, and has been opened up to settlement, with the result that there is now a strip of territory about fifteen miles in width, lying a few miles north of Bemidji, which is admittedly exempt from the provisions of any treaty or law relative to the introduction of intoxicating liquors in the Indian country, and in that strip the sale of intoxicating clubjuris

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liquors is actually conducted without interference on the part of the government of the United States. clubjuris

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