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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 26

26      REPORTS OF THE DEPARTMENT OF THE INTERIOR. 
allottee without the consent of the United States, shall be punished by impris-
onment 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
com- 
mitted 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. 
" SEC. 2. 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hereby repealed." 
The Heff decision holds that the provisions of this act relating to the sale
of 
liquor "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" is unconstitutional.
As 
stated in my letter of May 25, the sale referred to in the Heff case occurred
off 
the reservation in the State, and the jurisdiction of Congress over the reserva-
tions was neither involved nor considered. But while maintaining that the
au- 
thority of Congress over Indian allottees on the reservations is not impaired
by 
the Heff decision, under the rule which the Supreme Court has adopted for
the construction of criminal statutes, since the provision in question exceeds
the authority of Congress in respect to sales of liquor to Indian allottees
off 
the reservations, it is also void as to sales of liquor to Indian allottees
on the 
reservations. In other words, when an act of Congress embraces subjects not
within its constitutional scope, if but one provision and not separable,
it is void 
also as to matter within the legislative authority, 
It follows, therefore, that the act of January 30, 1897, now stands as if
the 
provision as to the sale of liquor "to an Indian to whom allotment of
land has 
been made, while the title to the same shall be held in trust by the Govern-
ment," has been stricken from it. But there is still available for the
protection 
of Indian allottees, while on the reservations, the provision prohibiting
the 
introduction of liquor into the Indian country, which term, the act declares,
" shall include any Indian allotment while the title to the same shall
remain 
in trust by the Government, or while the same shall be held inalienable by
the 
allottee without the consent of the United States." 
The Office had these two opinions printed in full and sent copies of 
them to the several agents and superintendents with a circular letter, 
which contained the following instructions: 
In view of the fact that Indian allottees are now subject entirely to the
jurisdiction of the States while off the reservations, your attention is
called to 
the propriety of seeking the aid of the local officers for the protection
of 
Indian allottees when off the reservations. Most all of the States having
a 
large Indian population have statutes against the sale of liquor to Indians,
and you are directed to bring this matter to the attention of the local officers
and render them all the assistance possible in the enforcement of the State
laws against the sale of liquor to Indians. You are also directed to be ex-
ceedingly vigilant in endeavoring to prevent the introduction of liquor into
the Indian country either by whites or Indians. If you find that anyone has
taken liquor on the reservation or any Indian allotment, you will immediately
report the fact to the United States attorney and also to this Office, with
a 
synopsis of the evidence to support the charge. 
Experience shows that the only safety of the Indians lies in keep- 
ing liquor out of their reach. Their willingness to buy it at any cost 


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