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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 25

COMMISSIONER OF INDIAN AFFAIRS. 
reach of police regulations on the part of Congress; that the emancipation
from 
Federal control thus created can not be set aside at the instance of the
Govern- 
-ment without the consent of the individual Indian and the State, and that
this 
emancipation from Federal control is not affected by the fact that the lands
it 
has granted to the Indian are granted subject to a condition against alienation
and incumbrance, or the further fact that it guarantees to him an interest
in 
tribal or other property." 
This language is very broad and sweeping, but it is to be construed in the
light of the facts of that case. 
In the first place, that case related solely to the sale of liquor to an
Indian 
while off his reservation in a State. Neither in the opinion nor in the briefs
and argument was the authority of the United States over the reservations
considered. The decision is undoubtedly conclusive as to the want of power
in 
Congress to exercise police jurisdiction over Indian allottees off the reservations
in the States. But its jurisdiction over the reservations is a very different
thing. * * * The most that can be claimed for the Heff decision is that it
holds that, by making Indian allottees citizens and subject to the laws of
the 
State, Congress has divested itself of its purely personal jurisdiction over
them. 
But the jurisdiction which Congress exercises over them upon the reservations
is authorized by the fact that they are inmates, so to speak, of Federal
institu- 
tions; and, while subject generally to State jurisdiction, that jurisdiction
can 
not be exercised so as to interfere with the conduct of these institutions
or to 
defeat the treaty stipulations which the United States may have made with
the 
Indians. * * * 
The Heff decision does not, of course, affect the power of Congress over
Indian allottees in the Territories. Territories being subject to the paramount
control of Congress, and merely its agents, jurisdiction granted to them
over the 
Indians may be withdrawn at pleasure. 
I conclude, therefore, that the authority' of Congress over Indian allottees
on 
the reservations in the States, and over such allottees whether on or off
the 
reservations in the Territories, is not affected by the Heff decision. 
This opinion of the Acting Attorney-General was somewhat modi- 
fied by another one dated June 6, 1905, which is in part as follows: 
On May 25 last I wrote you, replying to your letter of May 17, in regard
to 
the authority of the United States over the Indians in view of the recent
deci- 
sion of the Supreme Court in the Heff case. As stated, and for the reasons
indicated in that letter, the Department is of opinion that that decision
does not 
affect the authority of the United States over Indian allottees while on
the 
reservations in the States, and over such allottees whether on or off the
reserva- 
tions in the Territories. I desire, however, to call your attention more
particu- 
larly to the application of the act of January 30, 1897 (29 Stat. L., 506),
since 
the Heff decision. That act provides: 
"That any person who shall sell, give away, dispose of, exchange, or
barter 
any malt, spirituous, or vinous liquor, including beer, ale, 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 Governnent under
charge of any Indian superintendent or agent, or any Indian, including mixed
bloods, over whom the Government, through its Departments, exercises guardian-
ship, 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
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