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Argument for Petitioner.

to this court for relief because the United States Circuit Court of Appeals for the Eighth Circuit has decided the questions involved, adversely to his contention, in the case of United States. Express Co. v. Friedman, 191 Fed. Rep. 673.

Mr. Joseph C. Stone and Mr. Lawrence Maxwell, with whom Mr. James S. Davenport, Mr. Thomas H. Owen and Mr. Joseph S. Graydon were on the brief, for petitioner:

The police provisions of the act of January 30, 1897, do not apply to Oklahoma since its admission into the Union. Their continued existence is inconsistent with the Oklahoma Enabling Act and the state constitution and laws expressly authorized thereby. Cherokee Tobacco, 11 Wall. 616; Matter of Hej, 197 U. S. 488, 505.

There is, therefore, a statute of the United States punishing the specific offense of selling liquor to an Indian, fixing a certain penalty to be enforced in the courts of the United States, followed by an enabling act creating a new sovereign state, prohibiting the sale of liquors to anybody, fixing a lesser penalty for the offense of selling, and placing the jurisdiction in the state courts. The two acts reveal an essential inconsistency which makes it impossible for both to remain in force, unless there can be a divided sovereignty. Every sale which would constitute a violation of the act of 1897 in this territory would also constitute a violation of the Enabling Act, punishable by the express provision of that act in the state courts.

If the contention of the Government is correct, the law is so framed that neither court nor layman can ascertain by reading it by whom and under what circumstances introduction of liquor is innocent or criminal. Laws which create crimes ought to be so explicit that all men subject to their penalties may know what act it is their duty to avoid. United States v. Sharp, Pet. C. C. 118; United

Argument for the United States.

225 U.S.

States v. Brewer, 139 U. S. 278, 288; The Enterprise, 8 Fed. Cases, No. 4449; Bishop on Statutory Crimes, § 41; Chicago & N. W. Ry. Co. v. Dey, 35 Fed. Rep. 866; Sutherland on Stat. Const., 1st ed., 438; Lord Aukland's Principles of Penal Law, 312.

The question whether the act of January 30, 1897, remained in force in that part of Oklahoma which was formerly Indian Territory after the admission of the States is one of statutory construction, the presumption being that it did not, because its continued existence implies inequality of statehood. United States v. McBratney, 104 U. S. 621; Draper v. United States, 164 U. S. 240; Matter of Heff, 197 U. S. 488; United States v. Celestine, 215 U.S. 278; United States v. Sutton, 215 U. S. 291.

The place where the alleged offense was committed was not "Indian country” within the meaning of the act of January 30, 1897. Ex parte Crow Dog, 109 U. S. 556; United States v. LeBris, 121 U. S. 278; United States v. Four Bottles Sour Mash Whiskey, 90 Fed. Rep. 720; United States v. Knowlton, 3 Dakota, 58, 13 N. W. Rep. 573; Forty-three Cases Cognac Brandy &c., 14 Fed. Rep. 539; United States v. Martin, 14 Fed. Rep. 817.

Petitioner is entitled to habeas corpus, and the writ should issue. Matter of Heff, 197 U. S. 488; Ex parte Nielson, 131 U. S. 176; In re Mayfield, 141 U. S. 107; In re John Bonner, 151 U. S. 242; Ex parte Albert Siebold, 100 U. S. 371; In the Matter of Schneider, 148 U. S. 162; May's U. S. Sup. Ct. Practice, 440.

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

The Circuit Court of Appeals for the Eighth Circuit has ruled the point in controversy adversely to the petitioner (United States Express Co. v. Friedman, 191 Fed. Rep. 673, reversing 80 Fed. Rep. 1006).

225 U. S.

Argument for the United States.

The extinguishment of the Indian title to the particular lot in question did not remove it from the sphere of the Federal liquor laws, because the very treaties and statutes which authorized the extinguishment reserved the operation of those ląws, 32 Stat. 716; 30 Stat. 495, 509; 32 Stat. 641, 656; 30 Stat. 567-8; 31 Stat. 861, 872; 32 Stat. 500, 504; and the case thus falls within the exception stated in Bates v. Clark, 95 U. S. 204, 208, 209, and Dick v. United States, 208 U. S. 358; and within the principle of United States v. 43 Gallons of Whiskey, 93 U. S. 188, 193, 195, 197; Ex parte Crow Dog, 109 U. S. 556, 561; United States v. Thomas, 151 U. S. 577.

Notwithstanding the progress of piecemeal extinguishment of Indian land titles, Congress, in 1895, prohibited the manufacture and sale of liquors within all parts of the Indian Territory, and the introduction of liquors into said Territory (28 Stat. 697). And in 1907, Congress, expressly continued the tribal existence of the Five Civilized Tribes (34 Stat. 822).

The case also differs from Bates v. Clark, supra (reported below in 46 N. W. Rep. 510), in that it does not involve the blanket extinguishment of Indian title, accompanied by a withdrawal of the Indians and opening up of the lands to white settlement. United States v. Payne, 8 Fed. Rep. 888, 895; 22 Ops. A. G. 232, See also Buster v. Wright, 135 Fed. Rep. 947.

The mere creation of the State of Oklahoma did not in and of itself oust existing Federal laws in regard to the liquor traffic with Indians. United States v. 43 Gallons of Whiskey, 93 U.S. 188; Dick v. United States, 208 U. S. 340; United States v. Holliday, 70 U. S. 407; Hallowell v. United States, 221 U. S. 317; Ex parte Crow Dog, 109 U.S. 556, 561; United States v. Thomas, 151 U. S. 577.

The imposition upon the State by the Enabling Act of the purely intrastate duties to protect the Indians against the liquor traffic for the twenty-one years during

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which such special protection was considered by Congress necessary, was within the power of the Federal Government as a part of its constitutional power over the intercourse with the Indians. Coyle v. Oklahoma, 221 U. S. 559. The imposition of these obligations upon the State was not repugnant to or in substitution for the existing law against interstate introduction of liquors into the Indian Territory, as the State would not have had the power to regulate interstate commerce (Leisy v. Hardin, 135 U. S. 100; Rhodes v. Iowa, 170 U. S. 412; Louisville & Nashville R. R. Co. v. Cook Brewing Co., 223 U. S. 70), and as the continuance of that prohibition was essential for the protection of the Indians, there is no ground for implying an intention on the part of Congress to repeal the existing prohibition against the introduction of liquor from other States. Frost v. Wenie, 157 U. S. 46; United States v. Celestine, 215 U. S. 278.

The Enabling Act expressly reserved the authority of the government of the United States to make laws or regulations respecting such Indians, just as if the Enabling Act had never been passed (Tiger v. Western Co., 221 U. S. 309), and also it expressly continued the laws in force at the time of the admission of the State into the Union, except as modified or changed, and also all laws of the United States not locally inapplicable.

If the Federal laws no longer prevent the introduction of liquor into the Indian Territory from States other than Oklahoma, then the equality of Oklahoma with its sister States has been impaired, for its inhabitants alone, among all the States, are prevented from conducting that traffic with the old Indian Territory.

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

The draftsman of the indictment evidently intended to charge the offense known as “introducing liquor into

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the Indian country," made punishable by 8 2139, Rev. Stat., as amended by act of July 23, 1892, 27 Stat. 260, c. 234, and by the “Act to prohibit the sale of intoxicating drinks to Indians,” etc., approved January 30, 1897, 29 Stat. 506, c. 109.

The Circuit Court of Appeals in United States Express Company v. Friedman, 191 Fed. Rep. 673, dealt with the question whether that portion of Oklahoma formerly known as the Indian Territory ceased to be “Indian country" upon the admission of Oklahoma as a State, so that these acts were no longer applicable, and with the question whether the admission of Oklahoma as a State had the effect of repealing them so far as pertained to the introduction of liquors into the Territory. Petitioner's application to this court for a habeas corpus was intended to bring that decision under review, and the agreed statement of facts was designedly so framed as to show the grounds of his contention that the locus in quo is no longer“Indian country.”

The Government, however, in resisting the application, relied for support of the jurisdiction of the District Court not only upon the acts just referred to, but also upon 88 of "An Act to provide for the appointment of additional judges of the United States court in the Indian Territory, and for other purposes,” approved March 1, 1895, 28 Stat. 693, c. 145.

The three enactments in question are set forth in chronological order in the margin."

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· ACT OF JULY 23, 1892 (27 Stat. 260). "Chap. 234.-An act to amend sections twenty-one hundred and thirty-nine, twenty-one hundred and forty, and twenty-one hundred and forty-one of the Revised Statutes touching the sale of intoxicants in the Indian country, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section twenty-one hun

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