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Case, supra, it imposes not a penalty, but a compensatory allowance for the expense of employing an attorney, applicable in cases where the carrier unreasonably delays payment of a just demand and thereby renders a suit necessary. In fact and effect, it merely authorizes a moderate increment of the recoverable costs of suit in the large class of cases that are within its sweep, among which are incidentally included claims for freight lost or damaged in interstate commerce.
It is true that in Atlantic Coast Line v. Riverside Mills, 219 U. S. 186, 208 (a case arising since the Hepburn Act), it was held that 8 8 of the act of February 4, 1887, does not authorize the allowance of a counsel or attorney's fee in an action for loss of property entrusted to the carrier for purposes of transportation. But that is far from holding that it is not permissible for a State, as a part of its local procedure, to permit the allowance of a reasonable attorney's fee, under proper restrictions. In claims of this character, based upon the ordinary liability of the common carrier, although regulated by the Commerce Act, the state courts have full jurisdiction, and some differences respecting the allowance of costs and the amount of the costs are inevitable, as being peculiar to the forum. And we think that where a State, as in this instance, for reasons of internal policy, in order to offer a reasonable incentive to the prompt settlement of small but well-founded claims, and as a deterrent of groundless defenses, establishes by a general statute otherwise urexceptionable the policy of allowing recovery of a moderate attorney's fee as a part of the costs, in cases where, after specific claim made and a reasonable time given for investigation of it, payment is refused, and the claimant succeeds in establishing by suit his right to the full amount demanded, the application of such statute to actions for goods lost in interstate commerce is not inconsistent with the provisions of the Commerce Act and its amendments. The local
statute, as already pointed out, does not at all affect the ground of recovery, or the measure of recovery; it deals only with a question of costs, respecting which Congress has not spoken. Until Congress does speak, the State may enforce it in such a case as the present.
JOHNSON v. GEARLDS.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF MINNESOTA,
Argued May 1, 1914.-Decided June 8, 1914.
Where complainant's entire case rests on the construction of treaties
with Indians in regard to reservations and on the claim that certain of such treaties have been repealed by the subsequent admission of the Territory within which the reservations are situated, this court has jurisdiction of a direct appeal from the District Court under
$ 238, Judicial Code. The provision in Article VII of the treaty with the Minnesota Chip
pewa Indians of 1855, that the laws of Congress prohibiting the manufacture and introduction of liquor in Indian country shall be in force within the entire boundaries of the country ceded by that treaty to the United States until otherwise provided by Congress, relates to
the outer boundaries and includes all the reservations that lie within. It is within the constitutional power of Congress to prohibit the manu
facture, introduction or sale of intoxicants upon Indian lands, including not only land reserved for their special occupancy, but also lands outside of the reservations to which they may naturally resort; and this prohibition may extend even with respect to lands lying within
the bounds of States. Article VII of the Chippewa treaty of 1855 was not repealed directly or
by implication by the subsequent act of Congress admitting Minnesota into the Union, nor was that article repealed by the effect of the subsequent treaties with the same bands of Chippewas of 1865 and 1867; but the intent of treaties of 1855, 1865 and 1867, as construed
234 U. S.
Statement of the Case.
together, was that the acts of Congress relating to the introduction and sale of liquor in Indian country should continue in force within the entire boundaries of the country in question until otherwise
provided by Congress. Article VII of the Chippewa Treaty of 1855 has not been superseded
by any of the provisions of the Nelson Act of 1889, or the cessions made by the Indians to the United States pursuant thereto; nor has that article been superseded by reason of any change in the character of the Territory affected by the treaty and the status of the Indians
therein. The abrogation of an article in an Indian treaty prohibiting the sale of
liquor within territory specified therein until Congress otherwise provides is, in the absence of any considerable number of Indians remaining in that territory, a question primarily for Congress and
not for the courts. The fact that there has been a recent communication and recommenda
tion from the President to Congress on a particular subject and Congress has not acted thereon is evidence that the problem is not so entirely obvious of solution that the courts can declare it to be beyond
the range of legislative discretion. Article VII of the Chippewa Treaty of 1855 having provided for the
prohibition against sale of liquor within the entire territory ceded by that treaty until Congress should otherwise provide, held that notwithstanding the subsequent admission of Minnesota to the Union, and the later treaties with the Chippewas of 1865 and 1867 and the changed condition of the country and the status of the Indians, Congress not having otherwise provided, the prohibition is still in force throughout that entire territory including the City of Bemidji in which there are but few Indians and in the vicinity of which there is a large area of territory unrestricted by the prohibitions
of Article VII. 183 Fed. Rep. 611, reversed.
This is a direct appeal from a final decree of the District Court, rendered April 20, 1912, granting to appellees (who were complainants below, and will be so designated), a permanent injunction against appellants (defendants below), in accordance with the prayer of the amended bill of complaint. It appears that complainants are severally residents and citizens of the City of Bemidji, Beltrami County, Minnesota, and at the time of the filing of the
Statement of the Case.
bill were, and for a considerable time had been, engaged in business there as saloon-keepers, selling at retail spirituous, vinous and malt liquors at their respective places of business in that city, each of them having paid to the Federal and state governments respectively, the necessary tax and license fees, and having a receipt from the Federal Government and a liquor license issued under the authority of the State of Minnesota by the municipal council and officials of the city. The bill alleged that each of the complainants had refrained from selling or disposing of any liquor to Indians, or individuals of Indian blood, and had complied with the Federal and state laws in this and in other respects; that each of them had built up and established a profitable and lucrative trade; and that the jurisdictional amount was involved. It averred that defendants, being citizens of other States, and acting in conjunction as special officers under the Interior Department of the United States Government, were threatening to enforce within the City of Bemidji the provisions of $8 2139 and 2140 of the Revised Statutes of the United States and amendments thereto, and on December 9, 1910, had ordered complainants and other licensed saloonkeepers in Bemidji to close their saloons and cease sales of liquor, and ship away their stock, threatening that otherwise they would destroy the stocks of liquor in the possession of complainants, on the ground that under Article VII of a treaty made on the twenty-second day of February, 1855, between the United States and certain bands of Chippewa Indians, certain territory mentioned in the treaty, including what is now the City of Bemidji, was subject to the laws of the United States respecting the sale of liquors in the Indian country.
To the bill as orginally filed defendants interposed a demurrer, which was overruled, and a temporary injunction was granted. 183 Fed. Rep. 611. Thereafter, the cause was brought to final hearing upon an amended bill
Statement of the Case.
and a reamended answer, and the court, adhering to its former conclusion, rendered a final decree, as already mentioned.
The pertinent historical facts, as deduced from the averments of the amended pleadings, are as follows: On and prior to February 22, 1855, certain bands of the Chippewa Tribe of Indians, known as the Mississippi bands and the Pillager and Lake Winnibigoshish bands, were in possession of the greater portion of the lands north of parallel 46, within the boundaries of the then Territory of Minnesota. Their country constituted a wilderness, almost wholly uninhabited by civilized people. On the date mentioned, these bands entered into a treaty with the United States, which was approved by the Senate and proclaimed by the President shortly thereafter (10 Stat. 1165). By its first article the Indians ceded and conveyed to the United States "all their right, title, and interest in, and to, the lands now owned and claimed by them, in the Territory of Minnesota, and included within the following boundaries:" [Here follows a particular description, by natural boundaries, of a tract of country said to contain about 21,000 square miles.] By the same Article the Indians further relinquished and conveyed to the United States any and all right, title, and interest, of whatsoever nature, that they then had in and to any other lands in the Territory of Minnesota or elsewhere. This Article mentions no exception or reservation from the lands ceded or granted. By Article II there was “reserved and set apart, a sufficient quantity of land for the permanent homes of the said Indians: the lands so reserved and set apart to be in separate tracts, as follows.". The separate tracts were then briefly described or indicated. For the Mississippi bands seven reservations were set apart, which came to be known as the Mille Lac, Rabbit Lake, Gull Lake, Pokagomon Lake, Sandy Lake, and Rice Lake reservations; and besides these, a section of land was