Argument for the United States.

225 U. S.

Mr. N. W. McConnell and Mr. O. W. McConnell for plaintiff in error.

Mr. Assistant Attorney General Denison, with whom Mr. Louis G. Bissell, Attorney, was on the brief, for the United States:

Beyond question the Indian land title in this strip had been entirely extinguished. 13 Stat. 365; Northern Pacific R. R. Co. v. Townsend, 190 U. S. 267; Buttz v. Northern Pacific Railroad Co., 119 U. S. 355.

There is nowhere any express provision for the retention of any Federal police power over this strip, excepting that statements were made by the representative of the United States in the council with the Indians which preceded their deed to the effect that no liquor would be sold "on the reservation at the depots;" that after the road was built there would be "no white men to sell liquor," and that "the white people will not be allowed to go on the reservation."

This informal and parol agreement, and the fact that the grant was made for the limited purpose, and the physical situation of the strip in reference to the reservation and in its contact with the Indians brings this case under Dick v. United States, 208 U. S. 340.

In the Montana enabling act, 25 Stat. 677, the United States reserved its jurisdiction with reference to "unappropriated public lands."

In view of these conditions, the decisions of this court in Maricopa Railroad Co. v. Arizona, 156 U. S. 347, and Bates v. Clark, 95 U. S. 204, 208, 209, may perhaps finally dispose of the case; and see Utah & Northern Ry. v. Fisher, 116 U. S. 28, which seems to imply that the grant of a railroad right of way takes the land out of the reservation only in so far as may be necessary for the particular purposes of the grant.

The territorial power to tax the railroad line is not nec

essarily inconsistent with the continuation of the Federal police power for purposes of the discharge of the duty toward the Indians. United States v. 43 Gallons of Whiskey, 93 U. S. 188; 108 U. S. 491; United States v. McBratney, 104 U. S. 621; Thomas. Gay, 169 U. S. 264, 277; Draper v. United States, 164 U. S. 240; Truscott v. Hurlburt Land & Cattle Co., 73 Fed. Rep. 60.

The locus in quo was a part of a tract definitely set apart as a reservation for exclusive occupancy by the Indians, 12 Stat. 940. It, therefore, possessed its character as Indian country more because of the specific action by Congress than by reason of the original general definition of Indian country. 4 Stat. 729.

As to United States v. 4 Bottles Sour Mash Whiskey, 90 Fed. Rep. 720, see 22 Ops. Atty. Genl. 232.

MR. JUSTICE HUGHES delivered the opinion of the court.

The plaintiff in error was indicted by the grand jury of the United States for the District of Montana for introducing intoxicating liquor into the Flathead Indian Reservation. It appeared upon the trial in the District Court that he lived on the reservation and at the time. of the alleged offense was returning to his home from Missoula on a train of the Northern Pacific Railway Company, intending to leave the train at Ravalli. A special officer of the Interior Department boarded the train at Arlee, and, finding a pint of whisky on the person of the plaintiff in error, at once arrested him and took him back to Missoula. Both Arlee and Ravalli are points within the exterior limits of the reservation, which is crossed by the right of way of the railway company.

The jury rendered a verdict of guilty, whereupon it was urged by motion in arrest of judgment that the court was without jurisdiction. The motion was denied and the defendant was sentenced to imprisonment for sixty

Opinion of the Court.

225 U.S.

days and to the payment of a fine of $100. The case comes here on writ of error, the District Judge certifying the question of jurisdiction. The conviction was had under the act of January 30, 1897, c. 109,1 29 Stat. 506, which provides:

"That any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever

to

any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian a ward of the Government under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, which term shall include any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be punished by imprisonment for not less than sixty days, and by a fine of not less than one hundred dollars for the first offense and not less than two hundred dollars for each offense thereafter: Provided however, That the person convicted shall be committed until fine and costs are paid."

We are not here concerned with that portion of the statute which penalizes selling or giving intoxicating liquors to the Indians described or with the authority of Congress to protect the Indian wards of the Nation.

1 This repealed, so far as it was inconsistent, the act of July 23, 1892, c. 234, 27 Stat. 260, which amended § 2139 of the Revised Statutes.

The indictment charged that the plaintiff in error "did, then and there, wrongfully and unlawfully introduce" a quantity of intoxicating liquor "into the Flathead Indian Reservation, in the State and District of Montana," the said reservation "being an Indian country." The offense alleged was the introduction of the liquor into the reservation, and not "attempting to introduce."

The Flathead Indian Reservation was established by the treaty of July 16, 1855, between the United States and the confederated tribes of the Flathead, Kootenay and Upper Pend d'Oreilles Indians. 12 Stat. 975. It comprised a district now included within the boundaries of the State of Montana. The Enabling Act of 1889, under which the State was formed, required the adoption of an ordinance, irrevocable in the absence of the consent of the United States, providing: "That the people inhabiting" the proposed State "do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States." Act of February 22, 1889, c. 180, 25 Stat. 676, 677.

By the act of July 2, 1864, c. 217, § 2, 13 Stat. 365, 367, Congress granted a right of way through the public lands to the Northern Pacific Railroad Company for the construction of a railroad and telegraph as proposed, "to the extent of two hundred feet in width on each side of said railroad," including all necessary ground for station buildings, workshops, etc. It was provided that the United States should "extinguish, as rapidly as may be consistent with public policy and the welfare of the said

Opinion of the Court.

225 U.S.

Indians, the Indian titles to all lands falling under the operation of this act, and acquired in the donation to the road named in this bill." On July 5, 1882, the railroad company filed a map of definite location showing its line of railroad across the southwestern part of the Flathead reservation. Thereupon on September 2, 1882, the confederated tribes above mentioned entered into an agreement with the United States by which, after reciting the grant by Congress of the right of way, the treaties with the Indians, and the filing of the map of definite location, the Indians surrendered and relinquished to the United States "all the right, title and interest which they now have under and by virtue of the aforesaid treaty of July sixteenth, eighteen hundred and fifty-five, in and to all that part of the Jocko (or Flathead) Reservation situate in the Territory of Montana and described as follows, namely: A strip of land not exceeding two hundred feet in width, that is to say, one hundred feet on each side of the line laid down on the map of definite location hereinbefore mentioned wherever said line runs through said reservation." In consideration of the "surrender and relinquishment of lands as aforesaid," amounting in the aggregate to 1430 acres, the United States agreed to pay to the Indians the sum of $16,000. (Ex. Doc. No. 15, 48th Cong. 1st sess.)

Thus, by the grant of Congress the railroad company obtained the fee in the land constituting the "right of way" (Buttz v. Northern Pacific R. R. Co., 119 U. S. 55, 56, 66; Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267, 271), and by virtue of the agreement between the United States and the Indians this land was freed from

the Indian right of occupancy. As the Government states in its brief: "Beyond question the Indian land title in this strip had been entirely extinguished."

The question then is whether a person having intoxicating liquor in his possession on a railroad train running