Opinion of the Court.

229 U. S.

UNITED STATES v. WRIGHT.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF OKLAHOMA.

No. 918. Argued April 11, 1913.—Decided May 26, 1913.

In determining the effect of statutes regarding the introduction of liquor into Indian country, within the territorial limits of Oklahoma, every consideration arising out of the guardianship of the Federal Government over the Indians and control of their land indicate that as to them the liquor prohibition should be maintained after Statehood so far as consistent with the control of the State over its internal police.

The liquor prohibition, so far as it concerns Indians, has always been deemed one of the peculiar responsibilities of the Federal Government.

The provisions of § 2139, Rev. Stat., as amended by the acts of July 23, 1892, and January 30, 1897, so far as they related to the introduction of liquor into the Indian Territory from points outside of that Territory, but within what is now Oklahoma, have not been repealed, either expressly or by implication, by the Oklahoma Enabling Act.

THE facts, which involve the construction of the various acts relating to the introduction of intoxicating liquor into Indian country in Oklahoma, are stated in the opinion.

Mr. Assistant Attorney General Denison for the United States.

Mr. James C. Denton for defendant in error.

MR. JUSTICE PITNEY delivered the opinion of the court.

The defendant in error was indicted in the United States District Court for the Eastern District of Oklahoma, the charge being that "on the nineteenth day of March, in the year 1912, in the County of Muskogee, in the said

District, and within the jurisdiction of said court, the said county and district then and there being a portion of the Indian country of the said United States, (he) did at the time and place aforesaid, unlawfully, wilfully, knowingly, and feloniously introduce into said Indian country one quart of malt, vinous, spirituous, distilled, ardent, and intoxicating liquor, to-wit, whiskey. Contrary to the form of the statute in such case made and provided,” etc. The District Court sustained his demurrer, and the case is brought here under the Criminal Appeals Act.

The statutes involved are: § 2139, Rev. Stat., as amended by the act of July 23, 1892, c. 234, 27 Stat. 260, and by the act of January 30, 1897, c. 109, 29 Stat. 506; also § 8 of the act of March 1, 1895, c. 145, 28 Stat. 693; and the Oklahoma Enabling Act of June 16, 1906, c. 3335, 34 Stat. 267. Extracts from these are set forth in footnotes to the opinion in Ex parte Webb, 225 U. S. 663, 671, 677. Muskogee County is a part of what was the Indian Territory.

The District Court in effect construed the indictment as charging, not an interstate transaction, but an introduction of liquor from a point within the State of Oklahoma, but outside of what is now Indian country, into such Indian country. The decision of this court in the Webb Case, which had to do with § 8 of the act of March 1, 1895, and the effect of the Enabling Act upon it; and also the decision of the Circuit Court of Appeals for the Eighth Circuit in United States Express Co. v. Friedman, 191 Fed. Rep. 673, and Mosier v. United States, 198 Fed. Rep. 54,—both of which turned upon the effect of the Enabling Act upon the act of January 30, 1897;-were reviewed by the District Court, and the conclusion reached, principally because of the line of reasoning expressed in the opinion in Ex parte Webb, was "That the provisions of § 2139, Rev. Stat., as amended by the act of 1892 and the act of 1897, so far as they related, if at all, to the introduction

of liquor into the Indian Territory from points outside of that Territory, but within what is now Oklahoma, must be considered as having been repealed by the Enabling Act."

And again: "This confines offenses of this character, of which the Federal court has jurisdiction, to those in which the liquor is introduced from a point without the State. It is a violation of the state law, as established by the constitutional provision above referred to, to introduce liquor into what was formerly Indian Territory from some other portion of Oklahoma, but such violation is an offense exclusively within the jurisdiction of the state court. In order to give the Federal court jurisdiction, it is necessary that the introduction of the liquor should have been from a point without the State. This is an essential element of the offense, so far as the Federal court is concerned, and should therefore be charged in the indictment. It follows that the demurrer must be sustained."

The Criminal Appeals Act, March 2, 1907, c. 2564, 34 Stat. 1246, provides for a writ of error, to be taken by the United States from the District Court direct to this court, from a decision or judgment sustaining a demurrer to an indictment, "Where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded." The present case is clearly within this act, as previously interpreted and applied. United States v. Sutton, 215 U. S. 291, 294; United States v. Keitel, 211 U. S. 370, 385; United States v. Biggs, 211 U. S. 507, 518; United States v. Stevenson, 215 U. S. 190, 195; United States v. Miller, 223 U. S. 599, 602; United States v. Patten, 226 U. S. 525, 535; United States v. George, 228 U. S. 14, 17; United States v. Anderson, 228 U. S. 52; United States v. Pacific & Arctic Co., 228 U. S. 87, 100.

Upon the merits, the principal question is whether the acts of 1892 and of 1897 were repealed, as to intra-state

transactions, by the effect of the Enabling Act and the admission of the State, with the constitutional prohibition of the liquor traffic that was prescribed by that act. It is not contended that there was any express repeal. The insistence that there was a necessary repeal by implication, is supported by arguments that may be outlined as follows:

(a) That since the act of 1895 was a special act, applicable by name to the Indian Territory, it had the necessary effect of superseding as to that Territory the existing general statute (§ 2139, Rev. Stat., as amended in 1892) against the introduction and sale of intoxicating liquors in the Indian country.

(b) That § 8 of the act of 1895 was in turn superseded or repealed in toto by the act of 1897 and the Enabling Act.

(c) Or else, that the act of 1897, because amendatory only of the general statute against the introduction and sale of intoxicating liquors in the Indian country, had no effect upon the act of 1895, and did not apply to the Indian Territory because that Territory was covered by the act of 1895.

(d) And that whether the acts of 1892 and 1897, or either of them, was in force in Indian Territory prior to the admission of Oklahoma as a State, they were necessarily superseded as to intra-state transactions by the force and effect of that act, upon the same grounds on which this court said in the Webb Case that the act of 1895 was superseded.

Section 2139, Rev. Stat., providing for the punishment of persons introducing liquor into the Indian country, traces its origin to § 20 of the Indian Intercourse Act of June 30, 1834, c. 161, 4 Stat. 729, 732, as amended by act of March 15, 1864, c. 33, 13 Stat. 29. The amendment of 1892 (set forth in 225 U. S. 671), extended the prohibition to include ale, beer, and intoxicating liquors of any kind, as well as ardent spirits and wine, and added a clause

fixing the venue for complaints, arrests, and trials, including a special provision that complaints for offenses committed in the Indian Territory should be made before the United States Court Commissioner, or Commissioner of the Circuit Court of the United States, residing nearest the place where the offense was committed. The penalty under this act, as under § 2139, Rev. Stat., is imprisonment for not more than two years and fine of not more than three hundred dollars for each offense.

Next in chronological order was the act of March 1, 1895, c. 145, 28 Stat. 693, the title of which is "An act to provide for the appointment of additional judges of the United States Court in the Indian Territory, and for other purposes." Section 8 (set forth in 225 U. S. 672) provides (inter alia) that any person carrying into the Territory any vinous, malt or fermented liquors or other intoxicating drinks, shall upon conviction be punished by fine not exceeding five hundred dollars and by imprisonment for not less than one month nor more than five years. Other sections have to do with the creation of judicial districts in the Territory, the establishment of courts, the appointment of judges, attorneys, marshals, clerks, &c. Section 4 adopts the criminal law provisions of Mansfield's Digest of General Laws of Arkansas, with certain reservations. And

13 declares-"That none of the provisions of any other acts, or of any of the laws of the United States, or of the State of Arkansas, heretofore put in force in said Indian Territory, except so far as they come in conflict with the provisions of this act, are intended to be repealed, or in any manner affected by this act, but all such acts and laws are to remain in full force and effect in said Territory."

The act of January 30, 1897, c. 109, 29 Stat. 506, while having an independent title,-"An act to prohibit the sale of intoxicating drinks to Indians, providing penalties therefor, and for other purposes, "-was manifestly intended primarily as an amendment of the act of 1892.