Indians of the Northwest are largely equipped with arms which require special metallic cartridges, and that such special ammunition is in large part supplied to such hostile Indians directly or indirectly through traders and others in the Indian country: Therefore, Resolved, That the President of the United States is hereby authorized and requested to take such measures as in his judgment may be necessary to prevent such special metallic ammunition being conveyed to such hostile Indians, and is further authorized to declare the same contraband of war in such district of country as he may designate during the continuance of hostilities." Sec. 467. [Sale of arms, etc., to Indians prohibited.] The Secretary of the Interior shall adopt such rules as may be necessary to prohibit the sale of arms or ammunition within any district or country occupied by uncivilized or hostile Indians, and shall enforce the same. Act of Feb. 14, 1873, ch. 138, 17 Stat. L. 457. The unauthorized sale of firearms or am [R. S.] munition to Alaska Indians is prohibited by section 142 of the penal laws for Alaska, vol. 1, p. 328. Sec. 2137. [Prohibition of hunting on Indian lands.] Every person, other than an Indian, who, within the limits of any tribe with whom the United States has existing treaties, hunts, or traps, or takes and destroys any peltries or game, except for subsistence in the Indian country, shall forfeit all the traps, guns, and ammunition in his possession, used or procured to be used for that purpose, and all peltries so taken; and shall be liable in addition to a penalty of five hundred dollars. [R. S.] Act of June 30, 1834, ch. 161, 4 Stat. L. 730. See note to R. S. sec. 2125, supra, p. 376. Fisheries in Indian country. Hunting and trapping are not the only things which it is unlawful to do in the Indian country. The establishment of fisheries upon an Indian reservation is contrary to law. U. S. v. Sturgeon, (1879) 6 Sawy. (U. S.) 29. Property seized by the military under the provisions of this section should, as soon as reasonably practicable after report of the seizure shall have been made to the United States district attorney, be placed in the custody of the proper civil officer. (1887) 18 Op. Atty. Gen. 555. See also note to R. S. sec. 2150, infra, p. 391. Sec. 2138. [Penalty for removing cattle from Indian country.] Every person who drives or removes, except by authority of an order lawfully issued by the Secretary of War, connected with the movement or subsistence of troops, any cattle, horses, or other stock from the Indian country for the purposes of trade or commerce, shall be punishable by imprisonment for not more than three years, or by a fine of not more than five thousand dollars, or both. [R. S.] Act of March 3, 1865, ch. 127, 13 Stat. L. 563. Sec. 2139. [Penalty for selling intoxicating liquors in Indian country. complaints, where and how made.] No ardent spirits, ale, beer, wine, or intoxicating liquor or liquors of whatever kind shall be introduced, under any pretense, into the Indian country. Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind to any Indian under charge of any Indian superintendent or agent, or introduces or attempts to introduce any ardent spirits, ale, wine, beer, or intoxicating liquor of any kind into the Indian country shall be punished by imprisonment for not more than two years, and by fine of not more than three hundred dollars for each offense. But it shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the Indian country that the acts charged were done under authority in writing from the War Department, or any officer duly authorized thereunto by the War Department. All complaints for the arrest of any person or persons made for violation of any of the provisions of this act shall be made in the county where the offense shall have been committed, or if committed upon or within any reservation not included in any county, then in any county adjoining such reservation, and, if in the Indian Territory, before the United States court commissioner, or commissioner of the circuit court of the United States residing nearest the place where the offense was committed, who is not for any reason disqualified; but in all cases such arrests shall be made before any United States court commissioner residing in such adjoining county, or before any magistrate or judicial officer authorized by the laws of the State in which such reservation is located to issue warrants for the arrest and examination of offenders by section ten hundred and fourteen of the Revised Statutes of the United States. And all persons so arrested shall, unless discharged upon examination, be held to answer and stand trial before the court of the United States having jurisdiction of the offense. [R. S.] R. S. sec. 2139, as originally enacted, was Kamended and re-enacted so as to read as above by the Act of July 23, 1892, ch. 234, 27 Stat. L. 260. This Act amends only R. S. sec. 2139, not sections 2140, 2141. Compilers' note, 2 Supp. R. S. 45. See the Act of July 4, 1884, ch. 180, set forth infra, p. 384. Part of this Act is substantially repeated in the first section of the Act of Jan. 30, 1897, ch. 109, set forth infra, p. 384. See also the note to the second section of the last-mentioned Act. Manufacture, sale, etc., of intoxicating liquors is further prohibited by section 8 of the Act of March 1, 1895, ch. 145, set forth infra, p. 424, which by virtue of section 13 of the same Act does not impair the above provision in the text. As to jurisdiction of prosecutions for violations of this section, see section 34 of the Act of May 2, 1890, ch. 182, set forth infra, p. 412, and section 9 of the Act of March 1, 1895, ch. 145, set forth infra, p. 425. Provisions forbidding the sale, etc., of intoxicating liquors are preserved by the proviso to section 14 of the Act of June 28, 1898, ch. 517, set forth infra, p. 444. R. S. sec. 2139, as originally enacted, read as follows: "No ardent spirits shall be introduced, under any pretense, into the Indian country. Every person, except an Indian, in the Indian country, who sells, exchanges, gives, barters, or disposes of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or agent, or introduces or attempts to introduce any spirituous liquor or wine into the Indian country, shall be punishable by imprisonment for not more than two years, and by a fine of not more than three hundred dollars. But it shall be a sufficient defense to any charge of introducing or attempting to introduce liquor into the Indian country, that the acts charged were done by order of or under authority from the War Department, or any officer duly authorized thereunto by the War Department." Act of July 9, 1832, ch. 174, 4 Stat. L. 564; Act of March 15, 1864, ch. 33, 13 Stat. L. 29. It was amended by the Act of Feb. 27, 1877, ch. 69, 19 Stat. L. 244, which struck out of the second sentence the words "except an Indian, in the Indian country." Sufficiency of indictment. In U. S. v. Winslow, (1875) 3 Sawy. (U. S.) 337, it was held that under section 2139, as originally enacted and before amendment, it was necessary to allege in an indictment that the defendant was not an "Indian in the Indian country," such words applying not to the offense, but to the person committing it. But compare U. S. v. Downing, 25 Fed. Cas. No. 14,991. To what Indians applicable. This section is applicable to all Indians who are, in any degree, under the control or charge of an Indian agent. Therefore, the fact that an Indian has taken the oath of allegiance, has become an elector of the state and the United States, and is living upon land allotted to him, does not take him out of the inhibition contained in this section, provided he is still under the supervision or control of the Indian agent. Renfrow v. U. S., (1895) 3 Okla. 161. Actual charge and immediate personal superintendence over the individual Indian by the agent, at the time the liquor is sold, are not essential, provided the tribe to which the Indian belongs is regularly under the charge of the agent. U. S. v. Fling, (1870) 25 Fed. Cas. No. 15,124. In U. S. v. Osborn, (1880) 2 Fed. Rep. 58, it was held that an Indian who had abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, did not thereby become a citizen of the United States, and was within the purview of this section. An Indian who enlists in the United States army is only partially removed from the charge of the officers of Indian affairs and is within the purview of this section. U. S. v. Hurshman, (1892) 53 Fed. Rep. 543. An Indian who separated from his tribe before the government took cognizance of it as such by treaty or otherwise, and does not return thereto, or claim or enjoy at the hands of the government any right or privilege as a member of such tribe, is not under the charge of an agent, within the meaning of this section. But where he does return and claims the privilege of the reservation, he is thereby under the charge of the agent, and cannot thereafter, by absenting himself, dissolve his tribal relation or cease to be under the charge of the agent within the meaning of this section. U. S. v. Earl, (1883) 17 Fed. Rep. 75. Alaska is Indian country within the meaning of this section. In re Carr, (1875) 3 Sawy. (U. S.) 316. See also note to R. S. sec, 2127, supra, p. 378, Villages upon Indian reservations within a state over which the laws of such state have been extended by Act of Congress cannot be considered Indian country within the meaning of this section. Benson v. U. S., (1890) 44 Fed. Rep. 178. Mining claims within a reservation, the location of which was authorized by an Act of Congress, are not Indian country within the meaning of this section. U. S. v. Four Bottles Sour-Mash Whisky, (1898) 90 Fed. Rep. 720. Transportation of liquors across Indian country.- This section was not intended to interfere with the commerce in spirituous liquors between the sections of a country not Indian, nor to authorize the seizure of spirituous liquors found upon an Indian reservation in the course of transportation across the same. U. S. v. Twenty-Nine Gallons Whisky, (1891) 45 Fed. Rep. 847. Authority of war department exclusive. The introduction of spirituous liquors into the Indian country is prohibited wherever it is not done by authority of the war department, and hence the authority of that department touching the matter would seem to be exclusive. (1873) 14 Op. Atty.-Gen. 290; (1874) 14 Op. Atty.-Gen. 401. ""Beer " as a spirituous liquor. - The amendment by the Act of July 23, 1892, ch. 234, above cited, indicates that Congress regarded the Act as it previously stood as not including ale and beer in its terms. Sarlls v. U. S., (1894) 152 U. S. 570. And the amendment of the section by the Act of July 4, 1884, ch. 180, above cited, so as to include beer within the provisions thereof, could not be regarded as a legislative construction of the original section. In re McDonough, (1892) 49 Fed. Rep. 360. The amendment of 1892, above mentioned, was held not to operate retroactively so as to make void a contract for the purchase of beer to be sold in the Indian country. AnheuserBusch Brewing Assoc. v. Bond, (1895) 66 Fed. Rep. 653. See also U. S. v. Ellis, (1892) 51 Fed. Rep. 808; In re Boyd, (1892) 49 Fed. Rep. 48. [Miami, Indian Territory sale of liquors forbidden.] That section twenty-one hundred and thirty-nine of the Revised Statutes of the United States, as amended by the Act of July twenty-third, eighteen hundred and ninety-two (Twenty-seven Statutes, two hundred and sixty), be, and the same is hereby, extended over and made applicable to the town and town site of Miami in the Indian Territory; and the United States courts of said Territory shall have full jurisdiction thereof. [28 Stat. L. 903.] This is from section 1 of the Indian Appropriation Act of March 2, 1895, ch. 188. R. S. sec. 2139 is given supra, p. 382. [Persons in army prohibited from furnishing liquors, etc.] And no part of section twenty-one hundred and thirty-nine or of section twentyone hundred and forty of the Revised Statutes shall be a bar to the prosecution of any officer, soldier, sutler or storekeeper, attache, or employe of the Army of the United States who shall barter, donate, or furnish in any manner whatsoever liquors, wines, beer, or any intoxicating beverage whatsoever to any Indian. [23 Stat. L. 94.] * * This is from the Act of July 4, 1884, ch. 180, making appropriations for current and contingent expenses of the Indian department for the next fiscal year. See also the last paragraph of the note to R. S. sec. 2139, supra. An Act To prohibit the sale of intoxicating drinks to Indians, providing penalties therefor, and for other purposes. [Act of Jan. 30, 1897, ch. 109, 29 Stat. L. 506.] [SEC. 1.] [Sale, etc., of intoxicating liquors further prohibited commitment on conviction.] That any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquor, including beer, alé, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian to whom 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 under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, which term shall include any Indian. allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be punished by imprisonment for not less than sixty days, and by a fine of not less than one hundred dollars for the first offense and not less than two hundred dollars for each offense thereafter: Provided however, That the person convicted shall be committed until fine and costs are paid. But it shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the Indian country that the acts charged were done under authority, in writing, from the War Department or any officer duly authorized thereunto by the War Department. L. 506.] [29 Stat. See note to the next section; also the last paragraph of the note to R. S. sec. 2139, supra, p. 384. Constitutionality of Act.- - The above Act, prohibiting the sale of liquor to Indian allottees or patentees while the United States holds the title to their lands in trust for them, is constitutional and valid, the privilege of buying whiskey at all times and all places not being one of the rights, privileges, or immunities of citizenship, within the meaning of the Constitution of the United States. Mulligan . U. S., (1903) 120 Fed. Rep. 98; Farrell v. U. S., (1901) 110 Fed. Rep. 942. "Any person " includes an Indian who commits the offense specified in the statute, as it is evident that Congress purposely left out the words "except an Indian in the Indian country," which occurred in the original R. S. sec. 2139. U. S. v. Miller, (1901) 105 Fed. Rep. 944. Offense committed off reservation. An Indian living in tribal relations is under the charge of an Indian superintendent or agent, within the meaning of these words as used in the above Act, and the fact that when liquor was given to him he was off his reservation constitutes no defense to a prosecution under the Act. U. S. . Miller, (1901) 105 Fed. Rep. 944. Puyallup Indians. The Act does not comprehend a Puyallup Indian who holds lands under patent, the title of the government in which consists in a mere right to restrict alienation thereof. Such an Indian has all the rights, privileges, and immunities of other citizens, and is not under the guardianship of the United States government, nor under the charge of any Indian superintendent or agent. U. S. v. Kopp, (1901) 110 Fed. Rep. 160. SEC. 2. [Inconsistent provisions repealed.] That so much of the Act of the twenty-third day of July, eighteen hundred and ninety-two, as is inconsistent with the provisions of this Act is hereby repealed. [29 Stat. L. 507.] 66 R. S. sec. 2139 is re-enacted with amendments by Act of July 23, 1892, ch. 234, set forth supra, as sec. 2139." The Act here given enlarges the provisions of said Act of 1892 by amplifying the definitions of the forbidden liquors and providing more specifically the classes of Indians affected. The latter portion of the first section of this Act is substantially repeated from said Act of 1892. The former Act contains provisions in regard to the procedure, which are apparently not affected by this Act. Compilers' note, 2 Supp. R. S. 544. Sec. 2140. [Power of superintendents, etc., to search for concealed liquors.] 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 law, such superintendent, agent, sub-agent, or commanding officer, may cause the boats, stores, packages, wagons, sleds, and places of deposit of such person to be searched; and if any Volume III. 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 bond put in suit. It shall moreover be the duty of any person in the service of the United States, or of 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. In all cases arising under this and the preceding section Indians shall be competent witnesses. R. S.] Act of March 15, 1864, ch. 33, 13 Stat. L. 29. This section is mentioned in the Act of July 4, 1884, ch. 180, above set forth after R. S. sec. 2139, p. 382. Seizure must be within Indian country. Within this section, liquor must be seized upon an Indian reservation or the seizure is unauthorized, there being no "Indian country" unless it consists of the Indian reserva tions. Forty-three Gallons Cognac Brandy, (1882) 11 Fed. Rep. 47. See also note to R. S. sec. 2127, supra, p. 378. A military officer who seizes liquors not actually within the Indian country is liable in an action for trespass, although he acted in good faith and supposed that the place where the same were seized was Indian country. Bates v. Clark, (1877) 95 U. S. 204. Sec. 2141. [Penalty for setting up distillery in Indian country.] Every person who shall, within the Indian country, set up or continue any distillery for manufacturing ardent spirits, shall be liable to a penalty of one thousand dollars; and the superintendent of Indian affairs, Indian agent, or sub-agent, within the limits of whose agency any distillery of ardent spirits is set up or continued, shall forthwith destroy and break up the same. [R. S.] Act of June 30, 1834, ch. 161, 4 Stat. L. 732. Manufacture, etc., of intoxicating liquors in the Indian Territory is prohibited by the Act of March 1, 1895, ch. 145, sec. 8, set forth infra, p. 424. Indian Territory is within the provisions of the above section, and the establishment of a distillery therein would be in contravention of law. (1898) 22 Op. Atty.-Gen. 232. See also notes to R. S. sec. 2127, supra, p. 378. Sec. 2142. [Assault.] Every white person who shall make an assault upon an Indian, or other person, and every Indian who shall make an assault upon a white person, within the Indian country, with a gun, rifle, sword, pistol, knife, or any other deadly weapon, with intent to kill or maim the person so assaulted, shall be punishable by imprisonment, at hard labor, for not more than five years, nor less than one year. [R. S.] Act of March 27, 1854, ch. 26, 10 Stat. L. 270. Further provisions for punishment of assault with a deadly weapon in the Indian country are contained in section 25 of the Act of March 1, 1889, ch. 333, set forth infra, p. 402. Assault with intent to kill. - To make an assault with intent to kill, this section does not require that the act would be murder if death had ensued. If it would be only manslaughter in case of death, it will be assault with an intent to kill, if death does not ensue. Ex p. Brown, (1889) 40 Fed. Rep. 81. In a prosecution under this section for assault with intent to kill, it is not necessary to show malice. Jennings v. U. S., (1899) 2 Indian Ter. 670. Sec. 2143. [Arson.] Every white person who shall set fire, or attempt to set fire, to any house, out-house, cabin, stable, or other building, in the Indian country, to whomsoever belonging; and every Indian who shall set fire to any house, out-house, cabin, stable, or other building, in the Indian country, in whole or in part belonging to or in lawful possession of a white person, and whether the same be consumed or not, shall be punishable by imprisonment at hard labor for not more than twenty one years, nor less than two years. [R. S.] Act of March 27, 1854, ch. 26, 10 Stat. L. 270. Setting fire to woods, marshes, etc., in the Indian Territory is prohibited by section 26 of the Act of March 1, 1889, ch. 333, set forth infra, p. 403. |