| Show authority of the united states over In indians diang opinion of acting attorney Ue jeneral department of justice washington 1 D C the secretary of the interior sir I 1 beg to acknowledge the t he receipt of your letter of the instant transmitting a copy of a communication from the acting commissioner of indian affairs faire Af and in which you request to be advised as aa to the authority of the united states over the indian in view of the recent decision of the supreme court in the case of albert ileff heff the scope of that decision lis ia indicated in the following paragraph at the close of the opinion we are of the opinion Viat when the united states grants the privileges of citizenship to an indian gives to him the benefit of and requires him to be subject to the laws both civil and cri criminal m of the state it places him outside the reach of police regula regulations tiona on the part of congress that the emancipation from federal control thus created can not be set act aside at the istance of the government without the consent of the individual indian and the state and that this emancipation aiom federal control is ia 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 himan him an interest in tribal or other property this language is very broad and sweeping but it la Is to be constructed in th the a light of the facts in the case in n the first place that case related solely to the sale eale af liquor to an indian while hile off hits his reservation in a state neither in the opinion nor in the brelis and arguments was the authority of the united states over the reservations considered the decision is undoubtedly conclusive as to the want of power in a 8 to congles to exercise police jurisdiction over indian allot tees off tle the reservations reserva tiona in the states but its jurisdiction over the beser actions is a very different thing the act of february 8 1887 24 stat providing for the allotment oi of land in severalty severally to on the various reservations contains no intimation whatever that Con confess giess intended to surrender its jurisdiction over the reservations at least as long as aa the title to the lanch allotted mains hmains rf H in in the united states and so BO the act of january 10 1897 29 baat 9 prohibiting hi the sale of intoxicating liquors to indians indiana provides that the term indian country shall include any indian allotment while the title itle to the ila same mo shall be hold held in trust hy the government ern ment or while the same shall remain inalienable by the allotted lottes all al ottea without the consent of the united states the most that can be claimed for the tha heft heff decision is that it holds that by making indian allot tees citizens and subject to the laa laws a of the state congress has divested itself of its purely personal juris fiction over them but the tha jurisdiction which congress exer alses over them upon the reservations reservation is authorized by the fact that they are inmates inmate so PO to speak of federal institutions tut ions and while subject generally to state jurisdiction that jurisdiction cannot be exercised so as to interfere with the conduct of these institution or to defeat the treaty stipulations which the united states may have made with the indians indiana the nature of allotments made under the act of 1887 inthe in the rickert case U S where it was held that such lands being held in trust by the united states for the indians and the improvements thereon were not subject to state taxation despite the fact that such allot tees had been subjected to state jurisdiction in other words the jurisdiction of the state over indian allot tees upon the reservation under the act of 1887 is necessarily subordinate to the authority of congress to complete its plans for their betterment and fulfil fulfill treaty obligations with them the rhe case of ohio vs va thomas U S illustrates the proposition here made in that case the supreme court held that the state of ohio could not interfere with the internal administration of the national soldiers home located there nor in the exercise of its police power prohibit or regulate ane fu bishing of food authorized jurisdiction over this place it is to be observed had been receded by congress to the state the present case is however much stronger the states never has and congress has not as yet ceded to them jurisdiction over indian reserva reservations undoubtedly the ultimate purpose of the allotments provided by the act of 1887 is to wipe out the reservations but it is for Con grer and not the courts to say when that purpose shall take effect by withholding the title to such allotments from the allot tees for twenty 4 five ive with in the president to extend the period and power in itself to withhold it indefinitely or perpetually Con congress gregs has clearly indicated that for the I 1 present resent the reservations are to be maintained mani festl yand its subsequent sube quent legislation removes all doubt on the subject by making allot tees subject to the laws of the state in which they reside it never intended to su surrender arender its powers over the reservations and divest itself 0 of f a all 1 1 1 authority to complete its plans fo for r t the h e 1 betterment of the indians indiana off the reservations indian allot tees i are of course under the ileff decision completely subject to state jurisdiction one point however in this connection is to be borne in mind the act of I 1 1887 provides that upon the completion of said allotments and the patenting of lands to said i they shall bo be subject to jurisdiction of the state or territory in which they may reside in they heff case the court held that this referred to an who had received his first patent no specific reference wits was made however to the words upon the completion of s said aid allotments manifestly under the terms and in the spirit of the act subjection to state and territorial jurisdiction does not take place until a reservation is completely allotted in my opinion of april 23 1905 you were advised that the of febra ary 22 1855 with the chippewa indan providing proy iding that the tha laws which have been or may be enacted by congress regulating trade and intercourse with the indian tribes to continue and be in force within and upon the several reservations provided for herein and those portions of said eaid laws which prohibit the introduction manufacture use of arid and traffic in ardent spirits wines or other ll luord in the indian country shall continue and be in force within the eiene a alit e bound irles of the country herein ceded to the united states sartes until otherwise provided by congles Con gres was waa still in force and applied to a tract of land near ball club on the former OSES cam lake laka indian reservation in alinn minnesota sota similar provisions in treaties with ther ether c indians indiana should be also be given a it 0 e construction department of justice washington D C tha secretary of the interior sir on may last I 1 wrote you replying re plyma to your letter of may alay in regard to the authority of the united states over the indian in view of ui t recent decision of the supreme coul t in the ileff case As stated and for tho the leamons indicated in that letter tho the department is of the opinion that I 1 hat decision does not effect the authority of the united states over indian allot tees teea while on the reservations in sta les and over such allott allot tees cea whether ur un or off the reservations in the territories Terri I 1 desire however to call your attention more particularly to the application of the act of january 30 1897 29 stat slat since the heg decision that act provides that any person who shall sell alve away dispose of or barklr any milt spirituous or vinous liquor including beer ale ind aine or any ardent or other intoxicating liquor of any kind whatsoever or any eE essence extract bitters preparation compound composition or any article whatsoever under any name label oi 01 biard which produces intoxication tu to lirly any indian to whom allotment of land has been mado made while the title to the elaine aarne shall bo be held in trust by the government or 0 to o any indiana ward of the government Govern mert under change of any indian superintendent or agent or any indian including mix d bloods over whom wl om the government through its it depart m ants exercises guardianship and any alo 1 I 0 shall introduce or tu any malt spirituous or vii ous liquor including beer ale and anu or adv ardent or intoxicating aliquo of uny any hind whatsoever ino injo the in cour tr which term shall include any ind an allotment allot mert while the title to gotlie the same tit enli all be hei in trust by the Gover ariner t or while hile the same shall remain inalienable by the without the consent of the united states be punished by imprisonment for not asb libb than sixty days and by a fine of not less lees than one hundred dollars for the first offman and not less leaa than two hundred dollars for each offense thereafter provided howe however vei that ohe person convicted shall ie I 1 a committed until fine or costs are paid the ileff decision holds that the provisions of this act relating to the raid palo of libor to say aay any indian to whom allotment of land has been made while tle the title to the same shall be held in trust by the Govern government Gov emmet met is ie unconstitutional As stated in my letter of may the sale referred to in the heir case occurred off the reservation in the state and the jurisdiction of congi ess over the reservation neither involved nor considered but while ing that the authority of congress over indian allot tees anthe on the reservations la not impaired by the ileff heff decision under the rule which the Supreme court has adopted for the construction of t the te e criminal statutes since bince the provision in quention quer tion exceeds the authority of congress in respect to sales of liquor to indian allot tees off the reservations it Is ia also void as to sales of liquor to indian allot tees on the the reservations in other words when an act of congress embraces subjects riot not within its iti constitutional constitution dl scope if but one provision a and nd not nob separable it is void also aldo as to matter within the legislative authority U S v becse 92 U S it ir tollow follows lol lows 11 t i orore that the act of january 30 1897 now stands as if the provi provision sim as to sale W 0 liquor to an I 1 indian adl to whom allot all otmer roer t of land has as been made while title to the same shall be ba beldin truit by the gove government had been stricken s trick en from f rm it but there is r still available for protects protect im n of the indian allot tees while on the reservations the provision the introduction of liquor into the indian co country antry which term the act ac declares shall include rny any indian allotment while the title 0 to o the same shall remain in truit bv the government or while the same shall I 1 10 0 held inalienable by the without the consent of thi U S 11 in view of tho the facts that indian allt al t tees are now subject entirely to aba jurisdiction of state stale while off the res I 1 desire to call i 5 our attention to the propriety of instructing the indian agents in the states hai ha ing lic lieu u or laws lawa adequate for the purpose 0 o seek the aid of the state bbate officers for the protection of allot tees when off tha reservation respectfully CHAS if 11 kob koba a acting gooral |
