231 U.S. 28
34 S.Ct. 1
58 L.Ed. 107
UNITED STATES, Plff. in Err.,
Argued February 27, 1913.
Decided October 20, 1913.
Solicitor General Bullitt and Mr. Louis G. Bissell for plaintiff in error.
[Argument of Counsel from pages 29-32 intentionally omitted]
Mr. A. B. Renehan for defendant in error.
[Argument of Counsel from pages 32-36 intentionally omitted]
Mr. Justice Van Devanter delivered the opinion of the court:
This is a criminal prosecution for introducing intoxicating liquor into the Indian country; to wit, the Santa Clara pueblo, in the state of New Mexico. In the district court a demurrer to the indictment was sustained and the indictment dismissed upon the theory that the statute upon which it is founded is invalid, as applied to Indian pueblos in New Mexico, because usurping a part of the police power of the state, and encroaching upon its equal footing with the other states. 198 Fed. 539.
The indictment is founded upon the act of January 30, 1897, 29 Stat. at L. 506, chap. 109, as supplemented by § 2 of the act of June 20, 1910, 36 Stat. at L. 557, chap. 310, being the New Mexico enabling act. The first act makes it a punishable offense to introduce intoxicating liquor into the Indian country, and the second, in naming the conditions upon which New Mexico should be admitted into the Union, prescribed, in substance, that the lands then owned or occupied by the Pueblo Indians should be deemed and treated as Indian country within the meaning of the first act and of kindred legislation by Congress.
The pertinent portions of the enabling act are:
'Sec. 2. That . . . the said convention shall be, and is hereby, authorized to form a constitution and provide for a state government for said proposed state, all in the manner and under the conditions contained in this act. . . .
'And said convention shall provide, by an ordinance irrevocable without the consent of the United States and the people of said state——
'First. That . . . the sale, barter, or giving of intoxicating liquors to Indians and the introduction of liquors into Indian country, which term shall also include all lands now owned or occupied by the Pueblo Indians of New Mexico, are forever prohibited.
'Second. That the people inhabiting said proposed state do agree and declare that they forever disclaim all right and title . . . to all lands lying within said boundaries, owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States; . . . but nothing herein, or in the ordinance herein provided for, shall preclude the said state from taxing, as other lands and other property are taxed, any lands and other property outside of an Indian reservation, owned or held by any Indian, save and except such lands as have been granted or acquired as aforesaid, or as may be granted or confirmed to any Indian or Indians under any act of Congress; but said ordinance shall provide that all such lands shall be exempt from taxation by said state so long and to such extent as Congress has prescribed or may hereafter prescribe. . . .
'Eighth. That whenever hereafter any of the lands contained within Indian reservations or allotments in said proposed state shall be allotted, sold, reserved, or otherwise disposed of, they shall be subject for a period of twenty-five years after such allotment, sale, reservation, or other disposal to all the laws of the United States prohibiting the introduction of liquor into and 'Indian country' shall include the Pueblo and 'Indian country' shall include the Puebto Indians of New Mexico and the lands now owned or occupied by them.' Whether without this legislative interpretation the first act would have included the pueblo lands we need not consider. The territorial supreme court had but recently held that it did not include them (United States v. Mares, 14 N. M. 1, 88 Pac. 1128), and Congress, evidently wishing to make sure of a different result in the future, expressly declared that it should include them. That this was done in the enabling act, and that the state was required to, and did, assent to it, as a condition to admission into the Union, in no wise affects the force of the Congressional declaration, if only the subject be within the regulating power of Congress. As was said by this court in Coyle v. Oklahoma, 221 U. S. 559, 574, 55 L. ed. 853, 860, 31 Sup. Ct. Rep. 688: 'It may well happen that Congress should embrace in an enactment introducing a new state into the Union, legislation intended as a regulation of commerce among the states, or with Indian tribes situated within the limits of such new state or regulations touching the sole care and disposition of the public lands or reservations therein, which might be upheld as legislation within the sphere of the plain power of Congress. But in every such case such legislation would derive its force not from any agreement or compact with the proposed new state, nor by reason of its acceptance of such enactment as a term of admission, but solely because the power of Congress extended to the subject, and therefore would not operate to restrict the state's legislative power in respect of any matter which was not plainly within the regulating power of Congress.' To the same effect are Pollard v. Hagan, 3 How. 212, 224, 225, 229, 11 L. ed. 565, 571-574; Ex parte Webb, 225 U. S. 663, 683, 690, 691, 56 L. ed. 1248, 1256, 1259, 1260, 32 Sup. Ct. Rep. 769.
The question to be considered, then, is whether the status of the Pueblo Indians and their lands is such that Congress competently petently can prohibit the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to statehood.
There are as many as twenty Indian pueblos scattered over the state, having an aggregate population of over 8,000. The lands belonging to the several pueblos vary in quantity, but usually embrace amount 17,000 acres, held in communal, fee-simple ownership under grants from the King of Spain, made during the Spanish sovereignty, and confirmed by Congress since the acquisition of that territory by the United States. 1o Stat. at L. 309, chap. 103, § 8; 11 Stat. at L. 374, chap. 5. As respects six of the pueblos, one being the Santa Clara, adjacent public lands have been reserved by Executive orders for the use and occupancy of the Indians.
The people of the pueblos, although sedentary rather than nomadic in their inclinations, and disposed to peace and industry, are nevertheless Indians in race, customs, and domestic government. Always living in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and fetichism, and chiefly governed according to the crude customs inherited from their ancestors, they are essentially a simple, uninformed, and inferior people. Upon the termination of the Spanish sovereignty they were given enlarged political and civil rights by Mexico, but it remains an open question whether they have become citizens of the United States. See treaty of Guadalupe Hidalgo, arts. 8 and 9, 9 Stat. at L. 922, 929; United States v. Joseph, 94 U. S. 614, 618, 24 L. ed. 295, 297; Elk v. Wilkins, 112 U. S. 94, 28 L. ed. 643, 5 Sup. Ct. Rep. 41. Be this as it may, they have been regarded and treated by the United States as requiring special consideration and protection, like other Indian communities. Thus, public moneys have been expended in presenting them with farming implements and utensils,
See, inter alia, 10 Stat. at L. 330, chap. 167; 17 Stat. at L. 165, chap. 233; 18 Stat. at L. 147, chap. 389; 21 Stat. at L. 130, chap. 85; 22 Stat. at L. 83, chap. 163; 26 Stat. at L. 337, 353, chap. 807; 30 Stat. at L. 594, chap. 545; 36 Stat. at L. 278, chap. 40; Reports Comr. Indian Affairs 1907, p. 58; 1908, p. 55; 1909, p. 48; 1 Kappler, 878, 880; Executive Orders relating to Indian Reservations (1912), 124-127, 129, 130. and in their civilization and instruction; agents and superintendents have been provided to guard their interests; central training schools and day schools at the pueblos have been established and maintained for the education of their children; dams and irrigation works have been constructed to encourage and enable them to cultivate their lands and sustain themselves; public lands, as before indicated, have been reserved for their use and occupancy where their own lands were deemed inadequate; a special attorney has been employed since 1898, at an annual cost of $2,000, to represent them and maintain their rights; and when latterly the territory undertook to tax their lands and other property, Congress forbade such taxation, saying: 'That the lands now held by the various villages or pueblos of Pueblo Indians, or by individual members thereof, within Pueblo reservations or lands, in the territory of New Mexico, and all personal property furnished said Indians by the United States, or used in cultivating said lands, and any cattle and sheep now possessed or that may hereafter be acquired by said Indians, shall be free and exempt from taxation of any sort whatsoever, including taxes heretofore levied, if any, until Congress shall otherwise provide.' 33 Stat. at L. 1048, 1069, chap. 1479. An exempting provision was also inserted in § 2 of the enabling act.
The local estimate of this people is reflected by a New Mexico statute adopted in 1854, and carried into subsequent compilations, whereby they were 'excluded from the privilege of voting at the popular elections of the territory' other than the election of overseers of ditches in which they were interested, and the election of the officers of their pueblos 'according to their ancient customs.' Laws 1853-4, p. 142, § 3; Comp. Laws 1897, § 1678.
With one accord the reports of the super-intendents charged with guarding their interests show that they are dependent upon the fostering care and protection of the government, like reservation Indians in general; that, although industrially superior, they are intellectually and morally inferior to many of them; and that they are easy victims to the evils and debasing influence of intoxicants. We extract the following from published reports of the superintendents:
Albuquerque, 1904: 'While a few of these Pueblo Indians are ready for citizenship and have indicated the same by their energy and willingness to accept service from the railroad companies and elsewhere, and by accepting the benefits of schools and churches, a large per cent of them are unable, and not yet enough advanced along the lines of civilization, to take upon themselves the burden of citizenship. It is my opinion that in the event taxation is imposed, it will be but a short time before the masses of the New Mexico Pueblo Indians will become paupers. Their lands will be sold for taxes, the whites and Mexicans will have possession of their ancient grants, and the government will be compelled to support them or witness their extermination.'
Sante Fe, 1904: 'The Pueblo have little or no money, and they cannot understand why they should be singled out from all other Indians and be compelled to bear burdens [territorial taxes] which they are not able to assume. . . . They will not vote, nor are they sufficiently well informed to do so intelligently.'
Zuni, 1904: 'Last November when they had their Shaleco dance I determined to put a stop to the drunkenness. I wrote to the Indian Office asking for a detachment from Fort Wingate. I soon received a reply that my request had been granted. I said nothing to anyone. The afternoon the Shaleco arrived the detachment rode in, the Indians thinking they were passing through, and were making preparations to have a good time. When they were notified that a Navaho was celebrating, they promptly arrested him and brought him over to the guardhouse, and during the evening two others were arrested with whisky in their possession, and also a Pueblo Indian. The detachment remained until the dance was over and the visiting Indians had left for their homes.'
Sante Fe, 1905: 'Until the old customs and Indian practices are broken among this people we cannot hope for a great amount of progress. The secret dance, from which all whites are excluded, is perhaps one of the greatest evils. What goes on at this time I will not attempt to say, but I firmly believe that it is little less than a ribald system of debauchery. The Catholic clergy is unable to put a stop to this evil, and know as little of same as others. The United States mails are not permitted to pass through the streets of the pueblos when one of these dances is in session; travelers are met on the outskirts of the pueblo and escorted at a safe distance around. The time must come when the Pueblos must give up these old pagan customs and become citizens in fact.'
Santa Fe, 1906: 'There is a greater desire among the Pueblo to live apart and be independent and have nothing to do with the white race than among any other Indians with whom I have worked. They really care nothing for schools, and only patronize them to please their agent and incidentally to get the issues given out by the teacher. The children, however, make desirable pupils, and if they could be retained in school long enough more might be accomplished. The return student going back to the pueblo has a harder task before him than any other class of returned students I know. It is easier to go back to the Sioux tepee and lead a white man's life than to go back to the pueblo and retain the customs and manners taught in the school.
'In pueblo life the one-man domination—the fear of the wrath of the governor of the pueblo—is what holds this people down. The rules of the pueblo are so strict that the individual cannot sow his wheat, plant his corn, or harvest same in the autumn without the permission of the pueblo authorities. The pueblos under my jurisdiction that adhere religiously to old customs and rules are Taos, Picuris, Santo Domingo, and Jemez, the there are none of them that have made much progress away from the ancient and pagan rites.
Intemperance is the besetting sin of the Pueblo. . . . If the law against selling intoxicants to this simple and ignorant people is allowed to stand as now interpreted [act of 1897, as construed by territorial court], it simply means the ultimate extermination of the Pueblo and the survival of the fittest.'
Santa Fe, 1909: 'While apparently the Pueblo Indians are lawabiding, it has come to my notice during the past year that in the practice of the Pueblo form of government cruel and inhuman punishment is often inflicted. I have strongly advised the Indians against this, and your office has, through me, done likewise. The Pueblos, however, are very insistent upon retaining their ancient form of government. As long as they are permitted to live a communal life and exercise their ancient form of government, just so long will there be ignorant and wild Indians to civilize. The Pueblo form of government recognizes no other form of government and no other authority. While apparently they submit to the laws of the territory and the government, they do so simply because they are compelled to acquiesce. The returned student who has been five years at the boarding school is compelled to adopt the Indian dress upon his return to the pueblo; he is compelled to submit to all the ancient and heathen customs of his people. If he rebels, he is punished. He therefore lapses back and becomes like one who has never seen the inside of a school.'
Zuni, 1909: 'The Zunis, especially the old people, are very much opposed to sending their children to school, and to every influence that tends to draw them away from their old ways and habits, of living; but by persistent effort, and by appealing to their reason, we succeeded in filling the school with children. The children are happy and contented while at school, but when they go home for a visit, their mothers and older sisters talk with them and make them dissatisfied and they do not wish to return. This is especially true of the girls. . . . Immorality and a general laxness in regard to their family relations, together with their pagan practices, are the great curse of this tribe. They have no marriage ceremony that is binding, and a man will often live with two or three different women during one year. This custom is very demoralizing. In some cases the father will sell his daughters and the husband his wife for the purpose of prostitution. If marriage and divorce laws could be enforced, it would be a great blessing to these people. . . . We have had very little trouble with liquor on the reservation during the past year, and the Pueblo officers co-operate with me in trying to keep it from being brought on the reservation.'
This view of Pueblo customs, government, and civilization finds strong corroboration in the writings of ethnologists, such as Bandelier and Stevenson who, in prosecuting their work, have lived among the Pueblos and closely observed them. Papers Arch. Inst. Am. ser. vol. 3, pt. 1 (1890); Bureau Am. Ethn. Reports, vols. 11 (1889-'90) and 23 (1901-'02).
During the Spanish dominion the Indians of the pueblos were treated as wards requiring special protection, were subjected to restraints and official supervision in the alienation of their property, and were the beneficiaries of a law declaring 'that in the places and pueblos of the Indians no wine shall enter, nor shall it be sold to them.' Chouteau v. Molony, 16 How. 203, 237, 14 L. ed. 905, 919; Laws of the Indies, Bk. 6, title 1, laws 27 and 36, title 2, law 1; Bk. 5, title 2, law 7; Bk. 4, title 12, laws 7, 9, 16-20; Cedulas and Decrees shown in Hall's Mexican Law, §§ 162-171. After the Mexican succession they were elevated to citizenship and civil rights not before enjoyed, but whether the prior tutelage and restrictions were wholly terminated has been the subject of differing opinions. United States v. Pico, 5 Wall. 536, 540, 18 L. ed. 695, 696; Sunol v. Hepburn, 1 Cal. 254, 279, 280, 291, 292; 1 Nuevo Febrero Mexicano, pp. 24, 25; Hall's Mexican Laws, § 161; United States v. Ritchie, 17 How. 525, 540, 15 L. ed. 236, 240. In the last case this court observed: 'The improvement of the Indians, under the influence of the missionary establishments in New Spain, which had been specially encouraged and protected by the mother country, had, doubtless, qualified them in a measure for the enjoyment of the benefits of the new institutions. In some parts of the country very considerable advancement had been made in civilizing and christianizing the race. From their degraded condition, however, and ignorance generally, the privileges extended to them in the administration of the government must have been limited; and they still, doubtless, required its fostering care and protection.' And in the Pico Case the court, referring to the status of an Indian pueblo and its inhabitants during the Mexican r egime, said: 'The disposition of the lands assigned was subject at all times to the control of the government of the country. The pueblo of Las Flores was an Indian pueblo, and over the inhabitants the government extended a special guardianship.'
But it is not necessary to dwell specially upon the legal status of this people under either Spanish or Mexican rule, for whether Indian communities within the limits of the United States may be subjected to its guardianship and protection as dependent wards turns upon other considerations. See Pollard v. Hagan, 3 How. 212, 225, 11 L. ed. 565, 571. Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state. As was said by this court in United States v. Kagama, 118 U. S. 375, 384, 30 L. ed. 228, 230, 6 Sup. Ct. Rep. 1109: 'The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.' In Tiger v. Western Invest. Co. 221 U. S. 286, 315, 55 L. ed. 738, 749, 31 Sup. Ct. Rep. 578, prior decisions were carefully reviewed and it was further said: 'Taking these decisions together, it may be taken as the settled doctrine of this court that Congress, in pursuance of the long-established policy of the government, has a right to determine for itself when the guardianship which has been maintained over the Indian shall cease. It is for that body, and not the courts, to determine when the true interests of the Indian require his release from such condition of tutelage.'
Of course, if it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts. United States v. Holliday, 3 Wall. 407, 419, 18 L. ed. 182, 186; United States v. Rickert, 188 U. S. 432, 443, 445, 47 L. ed. 522, 538, 539, 23 Sup. Ct. Rep. 478; Re Heff, 197 U. S. 488, 499, 49 L. ed. 848, 853, 25 Sup. Ct. Rep. 506; Tiger v. Western Invest. Co. 221 U. S. 286, 315, 55 L. ed. 738, 749, 31 Sup. Ct. Rep. 578.
As before indicated, by an uniform course of action beginning as early as 1854 and continued up to the present time, the legislative and executive branches of the government have regarded and treated the Pueblos of New Mexico as dependent communities entitled to its aid and protection, like other Indian tribes, and, considering their Indian lineage, isolated and communal life, primitive customs and limited civilization, this assertion of guardianship over them cannot be said to be arbitrary, but must be regarded as both authorized and controlling. As was said in United States v. Holliday, 3 Wall. 407, 419, 18 L. ed. 182, 186: 'In reference to all matters of this kind, it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same. If they are a tribe of Indians, them, by the Constitution of the United States, they are placed, for certain purposes, within the control of the laws of Congress. This control extends, as we have already shown, to the subject of regulating the liquor traffic with them. This power of residing in Congress, that body is necessarily supreme in its exercise.' In that case the congressional enactment prohibiting the sale of liquor to Indian wards, and forbidding its introduction into the Indian country, was applied to a sale in the state of Michigan to an Indian who had and exercised the right to vote under the laws of the state, and other applications of the statute to Indians and Indian lands in other states are shown in United States v. 43 Gallons of Whiskey (United States v. Lariviere) 93 U. S. 188, 197, 23 L. ed. 846, 848; Dick v. United States, 208 U. S. 340, 52 L. ed. 520, 28 Sup. Ct. Rep. 399; United States v. Sutton, 215 U. S. 291, 54 L. ed. 200, 30 Sup. Ct. Rep. 116; Hallowell v. United States, 221 U. S. 317, 55 L. ed. 750, 31 Sup. Ct. Rep. 587; United States v. Wright, 229 U. S. 226, 57 L. ed. 1160, 33 Sup. Ct. Rep. 630.
It is said that such legislation cannot be made to embrace the Pueblos, because they are citizens. As before stated, whether they are citizens is an open question, and we need not determine it now, because citizenship is not in itself an obstacle to the exercise by Congress of its power to enact laws for the benefit and protection of tribal Indians as a dependent people. Cherokee Nation v. Hitchcock, 187 U. S. 294, 308, 47 L. ed. 183, 190, 23 Sup. Ct. Rep. 115; United States v. Rickert, 188 U. S. 432, 445, 47 L. ed. 532, 539, 23 Sup. Ct. Rep. 478; United States v. Celestine, 215 U. S. 278, 290, 54 L. ed. 195, 199, 30 Sup. Ct. Rep. 93; Hallowell v. United States, 221 U. S. 317, 55 L. ed. 750, 31 Sup. Ct. Rep. 587.
It also is said that such legislation cannot be made to include the lands of the Pueblos, because the Indians have a feesimple title. It is true that the Indians of each pueblo do have such a title to all the lands connected therewith, excepting such as are occupied under Executive orders, but it is a communal title, no individual owning any separate tract. In other words, the lands are public lands of the pueblo, and so the situation is essentially the same as it was with the Five Civilized Tribes, whose lands, although owned in fee under patents from the United States, were adjudged subject to the legislation of Congress enacted in the exercise of the government's guardianship over those tribes and their affairs. Stephens v. Cherokee Nation, 174 U. S. 445, 488, 43 L. ed. 1041, 1056, 19 Sup. Ct. Rep. 722; Cherokee Nation v. Hitchcock, 187 U. S. 294, 308, 47 L. ed. 183, 190, 23 Sup. Ct. Rep. 115; Heckman v. United States, 224 U. S. 413, 56 L. ed. 820, 32 Sup. Ct. Rep. 424; Gritts v. Fisher, 224 U. S. 640, 56 L. ed. 928, 32 Sup. Ct. Rep. 580; United States v. Wright, 229 U. S. 226, 57 L. ed. 1160, 33 Sup. Ct. Rep. 630. Considering the reasons which underlie the authority of Congress to prohibit the introduction of liquor into the Indian country at all, it seems plain that this authority is sufficiently comprehensive to enable Congress to apply the prohibition to the lands of the Pueblos.
We are not unmindful that in United States v. Joseph, 94 U. S. 614, 24 L. ed. 295, there are some observations not in accord with what is here said of these Indians, but as that case did not turn upon the power of Congress over them or their property, but upon the interpretation and purpose of a statute not nearly so comprehensive as the legislation now before us, and as the observations there made respecting the Pueblos were evidently based upon statements in the opinion of the territorial court, then under review, which are at variance with other recognized sources of information, now available, and with the long-continued action of the legislative and executive departments, that case cannot be regarded as holding that these Indians or their lands are beyond the range of congressional power under the Constitution.
Being a legitimate exercise of that power, the legislation in question does not encroach upon the police power of the state, or disturb the principle of equality among the states. United States v. Holliday, 3 Wall. 407, 419, 18 L. ed. 182, 186; United States v. 43 Gallons of Whiskey (United States v. Lariviere) 93 U. S. 188, 197, 23 L. ed. 846, 848; United States v. Kagama, 118 U. S. 375, 384, 30 L. ed. 228, 230, 6 Sup. Ct. Rep. 1109; Hallowell v. United States, 221 U. S. 317, 55 L. ed. 750, 31 Sup. Ct. Rep. 587, and Ex parte Webb, 225 U. S. 663, 683, 690, 691, 56 L. ed. 1248, 1256, 1259, 1260, 32 Sup. Ct. Rep. 769.
The judgment is accordingly reversed, with directions to overrule the demurrer to the indictment, and to proceed to the disposition of the case in regular course.