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Inasmuch as the question involved is one that materially affects the interests of the Indians, it is desirable that it should be passed upon by the highest court of appeal at as early a day as possible. You are therefore requested to take such steps in the premises, in accordance with the suggestions of the Attorney General, as will insure its being brought before the Supreme Court of the United States without delay.
I would suggest that in your action to this end you confer with General Shannon and other private counsel for the Indians.
The cases in which the question above referred to has been decided by the supreme court of Kansas, that have come to the knowledge of this department, are as follows:
Charles Bluejacket et al. vs. the Board of County Commissioners of the county of Johnson, Kansas.
The Board of County Commissioners of Miami county, Kansas, os. Wau-zop-eah et al.
Yellow Beaver, Tom Rogers et al. vs. the Board of Commissioners of Johnson county, Kansas. I am sir, very respectfully, your obedient servant,
JAMES HARLAN, Secretary. JAMES S. EMORY, Esq.,
United States District Attorney, Lawrence, Kansas.
UNITED STATES DISTRICT ATTORNEY'S OFFICE,
District of Kansas, Lawrence, March 28, 1866. Sir: I have the honor this day to acknowledge the receipt of your letter of instructions of the 12th instant, in regard to the Indian tax cases, requesting me to sue out writs of error and take such steps as may be necessary to insure these cases being brought before the United States Supreme Court. I have consulted General Shannon, the private counsel of the Indians, as you suggest, and will get the cases up as soon as possible. Your obedient servant,
J. S. EMORY,
United States District Attorney. Hon. James HARLAN,
Secretary of the Interior.
OFFICE SUPERINTENDENT OF INDIAN AFFAIRS,
Atchison, Kansas, May 25, 1866. SIR: I have the honor to inform you that, in obedience to your instructions contained in office letter of the 2d instant, directing me to investigate certain matters relating to the sale of lands belonging to the Shawnees, the Kaskaskias, Peorias, Weas, Piankeshaws, and the Miamies, for taxes levied uniler authority of the laws of this State, I have to report that I have visited all the county seats where these Indians have lands taxed, and made all necessary arrangements to have a correct statement furnished, for the information of the department, of all lands belonging to Indians which have been sold for taxes,
In Wyandot county the statement of Shawnee lands taxed will be ready in about one week. In Johnson county it will take about two months. In Miami county about a week, and in Douglas county about three weeks.
The statements of lands sold for taxes belonging to the Miamies, Kaskaskias, Peoias, Weas, &c., are already made out, and will be forwarded in a few days.
I found this tax business considerably mixed up, especially in Johnson county, where they bave been selling lands belonging to the Shawnees since 1860, and have deeded all lands held by them in severalty to the county, and in some cases to white persons.
Some taxes have been paid by Indians, but in most cases they paid none. In order to get at these matters correctly, it will necessarily take some time in Johnsou county, where so large a body of their land lies.
As soon as these statements come to hand I will forward them, with other desired information in relation thereto. Very respectfully, your obedient servant,
Superintendent of Indian Affairs. Hon. D. N. COOLEY,
Commissioner, Washington, D. C.
Supreme Court of the United States. —Nos. 119 and 134.—December term, 1865.
THE UNITED STATES, plaintiff, ) On a certificate of division of opinion between the judges of
the circuit court of the United States for the eastern disLORTON HOLLIDAY. trict of Michigan.
THE UNITED STATES, plaintiff, ) On a certificate of division of opinion between the judges of
the circuit court of the United States for the district of JOSEPH HAAS.
The above cases come to this court by certificates of division of opinion of the judges of the circuit courts for the districts of Michigan and Minnesota, and arise out of indictinents under the act of February 13, 1862, amendatory of the act of 1834, regulating trade and intercourse with the Indian tribes.
The questions propounded to this court in the two cases have a close relation to each other, and will be disposed of in one opinion.
The first question on which the judges divided in the case against Haas is, “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."
Previous to the act of July 15, 1862, no circuit courts existed in the districts of Texas, Florida, Wisconsin, Minnesota, Iowa, and Kansas, but the district courts in those districts exercised the powers of circuit courts.
It was during this time that Haas was indicted and convicted ; and a motion in arrest of judgment was pending and undetermined when that act went into effect. That act, by its own terms, transferred to the circuit courts wbich it created-one of which was in the district of Minnesota-all causes, civil or criminal, which might have been brought and could have been originally coguizable in a circuit court. If, then, the offence for which Haas was indicted was one which could have been originally cognizable in a circuit court, it was properly in that court for final determination ; otherwise it was not.
The act under which the indictment was found says that if any person shall commit the offence therein described, “such person shall, on conviction before the proper district court of the United States, be imprisoned,” &c.
So far as the act itself provides a court for its enforcement, it is the district court.
An examination, however, of the several acts which define generally the relative jurisdiction of the district and circuit courts of the United States, leaves no doubt that, in regard to all crimes and offences, it was intended to make the jurisdiction concurrent, except in cases where the punishment is death. In that class of offences the jurisdiction is exclusive in the circuit courts. The present offence, however, is created after all those acts were passed, and the law defining it only confers jurisdiction on the district court. Can the statutes, or any of them, which give the circuit courts concurrent jurisdiction of offences cognizable in the district courts, be held to have a prospective operation in such casc as the present?
The twelfth section of the judiciary act which created both the circuit and district courts says of the former, they “shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise providez, of the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of crimes and offences cognizable therein."
This provision has distinct reference, in its first clause, to cases of which the circuit courts shall have exclusive jurisdiction ; and, in its latter clause, to cases in which they shall have concurrent jurisdiction with the district courts.
The former include all crimes and offences where some statute does not provide the contrary. The latter include all crimes and offences cognizable in the district courts.
The judiciary act of 1789, of which these provisions constitute a part, is the one which, for the tirst time under our federal Constitution, created the courts which were to exercise the judicial function of the government. The powers conferred by that act on the several courts which it created, and the lines by which it divided the powers of those courts froin each other, and limited the powers of all of them under the Constitution, were intended to provide a general system for the administration of such powers as the Constitution authorized the federal courts to exercise. The wisdom and forethought with which it was drawn bave been the admiration of succeeding generations. And so well was it done that it remains to the present day, with a few unimportant changes, the foundation of our sys. tem of judicature, and the law which confers, governs, controls, and limits the powers of all the federal courts except the Supreme Court, and which largely regulates the extrcise of its powers.
It cannot be supposed, under these circumstances, that in giving to the circuit courts jurisdiction of all crimes and offences cognizable in the district courts, it was intended to limit the grant to such cases as were then cognizable in those courts. In fact, there was, at the time this statute was passed, no such thing as an offence against the United States, unless it was treason as defined in the Constitution. It has been decided that no common. law crime or offence is cognizable in the federal courts. The judiciary act organizing the courts was passed before there was any statute defining or punishing any offence under authority of the United States. This clause, then, giving the circuit courts concurrent jurisdiction in all ouses of crime cognizable in the district courts, must, of necessity, have bad reference to such statutes as should thereafter define offences to be punished in the district courts.
The offence, then, for which Haas was indicted, although declared by that act to be cognizable in the district courts, was, by virtue of the act of 1789, also cognizable in the circuit courts.
The second question in that case is this : whether, under the facts above stated, ang court of the United States had jurisdiction of the offence ?
'The facts referred to are, concisely, that spirituous liquor was sold within the territorial limits of the State of Minnesota, and without any Indian reservation, to an Indian of the Winnebago tribe under the charge of the United States Indian agent for said tribe.
It is denied by the defendant that the act of Congress was intended to apply to such a case; and, if it was, it is denied that it can be so applied under the Constitution of the United States.
On the first proposition the ground taken is, that the policy of the act, and its reasonable construction, limit its operation to the Indian country, or to reservations inhabited by Indian tribes.
The policy of the act is the protection of those Indians who are, by treaty or otherwise, under the pupilage of the government, from the debasing influence of the use of spirits ; and it is not easy to perceive why that policy should not require their preservation from this, to them, destructive poison when they are outside of a reservation as well as within it. The evil effects are the same in both cases.
But the act of 1862 is an amendment to section 20 of the act of June 30, 1834, (4 Statute U. S., 732,) and if we observe what the amendment is, all doubt is removed. The first act declared that if any person sold spirituous liquor to an Indian in the Indian country he should forfeit five hundred dollars.
The amended act punishes any person who shall rell to an Indian under charge of an Indian agent or superintendent appointed by the United States. The limitation to the Iudian country is stricken out, and that requiring the Indians to be under charge of an agent or superintendent is substituted. It cannot be doubted that the purpose of the amendment was to remove the restriction of the act to "the Indian country," and to make parties liable if they sold to Indians under the charge of a superintendent or agent, wherever they might be.
It is next claimed that if the act be so construed, it is without any constitutional allthority in its application to the case before us. We are not furnished with any argument by either of the defendants on this branch of the subject, and may not therefore be able to state, with entire accuracy, the position assumed. But we understand it to be substantially this : that so far as the act is intended to operate as a police regulation to enforce good morals within the limits of a State of the Union, that power belongs exclusively to the State, and there is no warrant in the Constitution for its exercise by Congress. If, it is an attempt to regulate commerce, then the commerce here regulated is a commerce wholly within the State, among its own inhabitants or citizens, and is not within the powers conferred on Congress by the commercial clause.
The act in question, although it may partake of some of the qualities of those acts passed by State legislatures which have been referred to the police powers of the States, is, we think, still more clearly entitled to be called a regulation of commerce. “Commerce," says Chief Justice Marshall, in the opinion in Gibbons vs. Ogden, to which we so often turn with profit when this clause of the Constitution is under consideration, “ undoubtedly is traffic; but it is something more—it is intercourse.” The law before us professes to regulate traffic and intercourse with the Indian tribes. It manifestly does both. It relates to buying and selling and exchanging commodities, which is the essence of all commerce, and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce, and a very important one.
If the act under consideration is a regulation of commerce, as it undoubtedly is, does it legulate that kind of commerce which is placed within the control of Congress by the Con.
stitution? The words of that instrument are : “ Congress shall have power to regulate commerce with foreign nations, and among the several States and with the Indian tribes." Commerce with foreign nations, without doubt, means commerce between citizens of the United States and citizens or subjects of foreign governments as individuals. And so commerce with the Indian tribes means commerce with the individuals composing those tribe. The act before us describes this precise kind of traffic or commerce, and therefore comes within the terms of the constitutional provision.
Is there anything in the fact that this power is to be exercised within the limits of a State which renders the act regulating it unconstitutional ?
In the same opinion to which we have just before referred, Judge Marshall, in speaking of the power to regulate commerce with foreign states, says : "The power does not stop at the jurisdictional limits of the several States. It would be a very useless power if it could not pass those lines." If Congress has the power to regulate it, that power must be exercised wherever the subject exists. It follows from these propositions, which seem to be incontrovertible, that if commerce or traffic or intercourse is carried on with an Indian tribe, or with a member of such tribe, it is subject to be regulated by Congress, although within the limits of a State. The locality of the traffic can have nothing to do with the power. The right to exercise it in reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or of the member of the tribe with whom it is carried on. It is not, however, intended by these remarks to imply that this clause of the Constitution authorizes Congress to regulate any other commerce, originated and ended within the limits of a single State, than commerce with the Indian tribes.
These views answer the two questions certified up in the case against Haas, and the two first questions in the case against Holliday. The third question in Holliday's case is 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 ?
The facts referred to, as set out in detail in those pleadings, are too long to be repeated here. The substance of them, as having reference to this particular question, is that the Indian to whom the liquor was sold had a piece of land on which he lived, and that he voted at county and town elections in Michigan, as he was authorized to do by the laws of that State ; that he was still, however, so far convected with his tribe that he lived among them, received his annuity under the treaty with the United States, and was represented in that matter by the chiefs or headmen of his tribe, who received it for him ; and that an agent of the government attended to this and other matters for that tribe. These are the sub. stantial facts pleaded on both sides in this particular question, and admitted to be true; and, without elaborating the matter, we are of the opinion that they show the Indian to be still a member of his tribe and under the charge of an Indian agent. Some point is made of the dissolution of the tribe by the treaty of August 2, 1855; but that treaty requires the tribal relation to continue till 1865 for certain purposes, and those purposes are such that the tribe is under the charge of an Indian superintendent; and they justify the application of the act of 1862 to the individuals of that tribe.
Two other questions are propounded by the judges of the circuit court for the eastern district of Michigan, both of which have relation to the effect of the constitution of Michigan and certain acts of the legislature of that State in withdrawing these Indians from the influence of the act of 1862.
The facts in the case certified up with the division of opinion show distinctly “ that the Secretary of the Interior and the Commissioner of Indian Affairs have decided that it is Decessary, in order to carry into effect the provisions of said treaty, that the tribal organization should be preserved." In reference to all matters of this kind it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same. If they are a tribe of Indians, then, by the Constitution of the United States, they are placed for certain purposes within the control of the laws of Congress. This control extends, as we have already shown, to the subject of regulating the liquor trade with them. This power residing in Congress, that body is necessarily supreme in its exercise. This has been too often decided by this court to require argument or even reference to authority.
Neither the constitution of the State nor any act of its legislature, however formal or solemn, whatever rights it may confer upon those Indians or with bold from them, can withdraw them from the influence of an act of Congress which that body has the constitutional right to pass concerning them. Any other doctrine would make the legislation of the State the supreme law of the land, instead of the Constitution of the United States and the laws and treaties made in pursuance thereof.
If authority for this proposition in its application to the Indians is needed, it may be found in the cases of the Cherokee Nation vs. The State of Georgia, 5 Peters, 1 ; and Worcester vs. The State of Georgia, 6 Peters, 515.
The result to which we arrive from the examination of this law, as regards the questions certified to us, is that both questions in the case against Haas must be answered in the affirmative ; and in the case against Holliday the first three must be answered in the affirma tive, and the last two in the negative.
It is, however, proper to say that in the fourth question in the latter case is included a query, whether the Indian Otobisco was a citizen of the State of Michigan,
As the views which we have advanced render this proposition immaterial to the decision of the case, the court is to be understood as expressing no opinion upon it.
I am desired to say that Mr. Justice Nelson, not having heard the argument in these cases, took no part in the decision. True copy:
D. W. MIDDLETON, Clerk of the Supreme Court of the United States.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., March 9, 1866. Sir: I have to make the following inquiry, viz : Why trade with Indians in the Indian country may not be thrown open to any loyal citizen of the United States, of good moral character, who can give bonds, with satisfactory security, that he will observe the laws and rules of the department, &c. ? Very respectfully, your obedient servant,
JAMES HARLAN, Secretary. Hon. D. N. COOLEY, Commissioner Indian Affairs.
DEPARTMENT OF THE INTERIOR, OFFICE INDIAN AFFAIRS.
March 16, 1866. SIR: I have the honor to acknowledge the receipt of your communication of the 9th instant, making the following inquiry, viz:
"Why trade with Indians in the Indian country may not be thrown open to any loyal citizen of the United States, of good moral character, who can give bond, with satisfactory security, that he will observe the laws and rules of the department, &c. ?''
In reply, I beg leave to state that certain difficulties have, from the earliest history of our intercourse with the Indians, been prominent, resulting from the influence of traders; these difficulties may be briefly stated thus :
First. In spite of all laws, regulations, and restrictions, many traders do introduce into the country intoxicating liquors, whose baneful effects are witnessed in every tribe.
Second. Such is the anxiety on the part of traders to make money that many disobey or evade the regulations restricting their intercourse with tribes who are hostile, or preparing for hostility, and supply them with contraband goods.
Third. The influence obtained by traders over the Indians is very great, and has in many instances been exercised to prevent satisfactory treaties being made with them, unless their claims against the Indians, to an enormous amount, are recognized by the government, thus swelling, in large measure, the payments required to be made by government. So great an evil had this become as long ago as 1845, that the Senate of the United States provided, that in no future treaties should money be provided to be paid for such indebted. ness ; but in various forms the same practice was practically still continued.
The difficulties thus stated in general terms, and which might be particularized at length, must necessarily increase with the number of traders.
Perhaps, if a literal compliance with the conditions of your inquiry could be secured that is, if we could be certain that all traders and their employés were "of good moral character," and that their bonds were all good and collectable—there might be some degree of safety in opening the trade to all such. But those conditions are now, and have loug been, required by law and regulations. Yet the department is compelled to act upon the certificates of superintendents and agents as to moral character, and as to the sufficiency of bonds. If all superintendents and agents were to be implicitly relied upon as to these mat. ters, the interests of the government and the Indians could be secured. Until this shall come to be the case, I submit that restriction upon the number of traders is the easiest method of limiting the evils referred to.
Under all the circumstances, I know.of no better course than to allow of a sufficient num. ber of traders, whose character and responsibility shall be closely scrutinized, to obviate the objections likely to arise from a monopoly, and to restrict all, by some regulations under which an annual schedule of prices of sale and purchase shall be prescribed, to a fair basis of trade.