234 U.S.

Argument for Appellants.

Article VII was not repealed by Treaties of 1865 or 1867, and there has been no express repeal.

It was not necessary to repeat prohibition in 1865 or 1867 because Article VII in the 1855 treaty covered and protected the whole area.

The need for protection of Article VII, was as great in 1865 and 1867 as in 1855.

The rule that reconveyance to a grantor cancels existing covenant is not applicable in this case, because there has been no such reconveyance in fact and because that rule does not apply to treaties.

Article VII had not become a purely arbitrary regulation in 1910.

Three classes of Indians are concerned: full-blood White Earth and all Leech Lake allottees holding prior to act of May 9, 1906. These may be citizens but cannot alienate lands.

All of the above are holding allotments only since the act of 1906. These are not citizens and cannot alienate. Mixed-blood White Earth allottees are citizens of the United States and of the State.

All save class 3 are still in wardship (without regard to other reasons), because the trust period has not expired.

The wardship of mixed blood White Earth allottees depends on whether they are still regarded as a dependent people by the executive and legislative branches of the Government.

The pleadings do not show that this protection is purely arbitrary as applied to tract A.

The open 15-mile strip never was protected by treaty. There is present need of 10,000 Indians for this protection, and there is inadequacy of state laws to keep the liq

uor out.

In support of these contentions, see Altman & Co. v. United States, 224 U. S. 583; The Cherokee Tobacco, 11 Wall. 616; Champion Lumber Co. v. Fisher, 227 U. S. 445,

Argument for Appellees.

234 U. S.

451; Cornell v. Green, 163 U. S. 75; Couture v. United States, 207 U. S. 581; Coyle v. Oklahoma, 221 U. S. 559; Dick v. United States, 208 U. S. 340; Donnelly v. United States, 228 U. S. 243; Draper v. United States, 164 U. S. 240, 247; Ex parte Webb, 225 U. S. 663; Foster v. Neilson, 2 Pet. 314; Friedman v. United States Exp. Co., 180 Fed. Rep. 1006; Georgia Rd. &c. Co. v. Walker, 87 Georgia, 204; Green v. Edwards, 15 Tex. Civ. App. 382; Holder v. Aultman, 169 U. S. 81; Hallowell v. United States, 221 U. S. 312; Jones v. Walker, 2 Paine, 288; Loeb v. Township, 179 U. S. 472; Matter of Heff, 197 U. S. 488; Matter of Rickert, 188 U. S. 432; McKay v. Kalyton, 204 U. S. 458, 466; Mosier v. United States, 198 Fed. Rep. 54; Muse v. Arlington Hotel Co., 168 U. S. 435; People's Bank v. Gibson, 161 Fed. Rep. 286, 291; Perrin v. United States, 232 U. S. 478; Petit v. Walshe, 194 U. S. 216; Pollard v. Hagan, 3 How. 212; Silverman v. Loomis, 104 Illinois, 142; Tiger v. Western Invest. Co., 221 U. S. 286; United States v. Celestine, 215 U. S. 287; United States v. Holliday, 3 Wall. 407; United States v. McBratney, 104 U. S. 621; United States v. Pelican, 232 U. S. 442; United States v. Sandoval, 231 U. S. 28; United States v. Sutton, 215 U. S. 291; United States v. Wright, 229 U. S. 226; United States v. 43 Gallons of Whiskey, 93 U. S. 188; United States Exp. Co. v. Friedman, 191 Fed. Rep. 673; Ward v. Race Horse, 163 U. S. 504; Wilson v. Shaw, 204 U. S. 24, 33.

Mr. Charles P. Spooner, with whom Mr. Marshall A. Spooner, Mr. John C. Spooner, Mr. Fred W. Zollman and Mr. Joseph P. Cotton, were on the brief, for appellees:

This court has not jurisdiction of this appeal under § 238, Judicial Code, because the construction or validity of Article VII of the treaty of 1855 is not drawn in question; the construction or application of the Constitution is not involved; the construction of the treaties of 1865 and 1867 is not drawn in question.

Article VII of the treaty of 1855 was repealed by the Minnesota Enabling Act; it was also repealed by the treaties of 1865 and 1867; and it had expired in 1910 because of the act of January 14, 1889, and the change in the character of territory and the status of Indians.

In support of these contentions, see Bates v. Clark, 95 U. S. 204; Balt. & Poto. R. R. Co. v. Hopkins, 130 U. S. 210; Champion Lumber Co. v. Fisher, 227 U. S. 445; Clough v. Curtis, 134 U. S. 361; Hamilton v. Rathbone, 175 U. S. 414; Linford v. Ellison, 155 U. S. 503; Matter of Heff, 197 U. S. 488; McLean v. Railroad Co., 203 U. S. 38; Miller v. Cornwall R. R. Co., 168 U. S. 131; New Orleans v. Water Works Co., 142 U. S. 79; Snow v. United States, 118 U. S. 346; Swearingen v. St. Louis, 185 U. S. 38; Tiger v. Western Invest. Co., 221 U. S. 286; United States v. Celestine, 215 U. S. 278, 290; United States v. Dick, 208 U. S. 340; United States v. Fisher, 2 Cranch, 358; United States v. Forty Gallons of Whiskey, 93 U. S. 188; United States v. Lynch, 137 U. S. 280; United States v. Perrin, 232 U. S. 478; United States v. Sandoval, 231 U. S. 28; United States v. Wright, 229 U. S. 226; Wiggan v. Connolly, 163 U. S. 56.

MR. JUSTICE PITNEY, after making the foregoing statement, delivered the opinion of the court.

This direct appeal is taken under § 238, Jud. Code (act of March 3, 1911, c. 231, 36 Stat. 1087, 1157), which allows such an appeal (inter alia) “in any case that involves the construction or application of the Constitution of the United States; in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in question." Our jurisdiction is invoked upon three grounds: (a) that the construction or validity of Article VII of the Treaty of 1855 is drawn in question; (b) that the construction or application of the Constitution is VOL. CCXXXIV-28

involved; (c) that the construction of the Treaties of 1865 and 1867 is drawn in question. There is a motion to dismiss, based upon the ground that none of these contentions is well founded. We think the motion must be denied. The court below, in overruling the demurrer, based its decision upon the ground that the treaty of 1855 was necessarily repealed by the admission of the State of Minnesota into the Union upon an equal footing with the original States. This decision was based upon the bill as originally framed, but the amendments made no change affecting this ground of decision; and it is evident from the record that in granting the final decree the court adhered to the view expressed in overruling the demurrer. It is insisted by appellants, with some force, that this view was based upon grounds that involved the construction or application of the Constitution of the United States; and that for this reason the direct appeal lies. We find it unnecessary to consider the point, since it seems to us that the entire case for complainants rests at bottom upon grounds that involve the construction of the three treaties referred to, especially that of 1855.

The bill, either in its original or its amended form, did not expressly assert as a ground for relief that the treaty of 1855 had been repealed, in whole or in part, by the admission of the State. On the contrary, relief was prayed upon the ground that the second clause of Article VII (that which related to the liquor traffic and was to remain in force until otherwise provided by Congress) applied only to the ceded territory, and not to the reservations set apart within that territory; that by the Treaty of 1865 those reservations were ceded to the United States, and ceased to be Indian country in any sense; and that by the subsequent cession in the Treaty of 1867 the reservation of 1865 in turn was vested in the United States, and therefore ceased to be Indian country; and, finally, that Article VII of the treaty of 1855 had expired at the time of

the acts complained of in the bill (1910) by virtue of the provisions of the act of January 14, 1889, and the cessions made to the United States by the Chippewas of Minnesota pursuant to that act, and because of the changes wrought by time in the character of the territory included in the Treaty of 1855 and the status of the Indians therein. These grounds of relief are reiterated in the amended bill, and the averments of the amended answer are calculated to meet them. And the principal force of the arguments on both sides is addressed to the construction of the several treaties referred to. For this reason, if for no other, the direct appeal is well taken.

Upon the merits, we may well begin with the disputed portion of the Treaty of 1855:

"Article VII. The 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 laws which prohibit the introduction, manufacture, use of, and traffic in, ardent spirits, wines, or other liquors, in the Indian country, shall continue and be in force, within the entire boundaries of the country herein ceded to the United States, until otherwise provided by Congress."

The reference to previous laws clearly points to the act of June 30, 1834, entitled "An Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers" (c. 161, 4 Stat. 729), and kindred acts. The act of 1834 was a revision of previous enactments, and contains many provisions for the regulation of trade and intercourse. Its twentieth and twenty-first sections (4 Stat. 732) prohibit the introduction or manufacture of, or traffic in, spirituous liquor or wine within the Indian country. From them, §§ 2139, 2140, and 2141, Rev. Stat., were derived.

By the first section of the act of 1834, the term "Indian