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United States. Office of Indian Affairs / Annual report of the Commissioner of Indian Affairs, for the year 1905, Part I
([1905])

Report of the Commissioner of Indian Affairs,   pp. 1-155 PDF (58.6 MB)


Page 23

COMMISSIONER OF INDIAN AFFAIRS.                    23 
That portion of the acts of July 9, 1832 (4 Stat L., 564), June 30, 1834
(4 
Stat. L., 732), and March 15, 1864 (13 Stat. L., 29), incorporated into the
Revised Statutes as sectiore2139as anended byitsct of July 23, 1892 (27 
Stat. L., 260), reads as follows: 
No ardent spirits, ale, beer, wine, or intoxicating liquor or liquors of
what- 
ever kind shall be introduced under any pretense into the Indian country.
Every person who * * * 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 a fine
of not more than three hundred dollars for each offense." 
The act of January 30, 1897 (29 Stat. L., 506), provides that- 
"Any person who shall introduce or attempt to introduce any malt, spirituous,
or vinous liquors 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 imprison-
ment for not less than sixty days and by a fine of not less than one hundred
dollars for each offense thereafter." 
It appears that the tract of land upon which the privilege of selling liquor
is 
now claimed was allotted to an Indian in pursuance of the provisions of section
5 of the act of Congress of February 8, 1887 (24 Stat. L., 388), and by his
heirs 
conveyed to a white man, and such transfer approved, as provided by section
7 
of the act of May 27, 1902 (32 Stat. L., 245, 275). 
My attention has not been called to any act of Congress inconsistent with
the 
continuance in force of the above-quoted provision of the treaty by which
the 
Indian ceded the country. This provision was for the protection of the Indians.
Many of them reside in the vicinity, some of them upon lands held as allottees
and probably in proximity to the tract upon which it is proposed to dispense
the 
intoxicating beverages. (Annual Report, Commissioner of Indian Affairs, 1903,
pp. 94, 184.) Congress in its wisdom may have thought that the time has not
arrived when the duty which we owe to our Indian wards will permit us to
discontinue the application of this stipulation to the country ceded. 
In view of this treaty limitation, and upon consideration of the decision
of 
the Supreme Court in the case of United States v. Forty-three Gallons of
Whis- 
key (93 U. S., 188 and 108 U. S., 491), it seems obvious that the provisions
of 
section 2139 of the Revised Statutes, as amended, are applicable to an intro-
duction of liquor upon land situated as that above mentioned. 
Concerning what course may properly be pursued in case of a violation of
law 
in this connection, it seems sufficient to invite your attention to section
2139, as 
amended, prescribing punishment for those who violate its provisions, and
also 
to section 2140 of the Revised Statutes, which is as follows: 
"If any superintendent of Indian affairs, Indian agent or subagent,
or com- 
manding 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, subagent, or commanding officer may cause the boats, stores, packages,
wagons, sleds, and places of deposit of such person to be searched; and if
any 
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
more- 
over 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
coun- 
try, except such as may be introduced therein by the War Department."
Accordingly, answering your questions, I am of the opinion that, first, an
introduction of liquor into the territory ceded by the treaty of 1855 would
be 


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