At the time of the passage of the act of 1895 the Territory known as the Indian Territory was that which was

dred and thirty-nine of the Revised Statutes be amended and re-enacted so as to read as follows:

"SEC. 2139. No ardent spirits, ale, beer, wine, or intoxicating liquor or liquors of whatever kind shall be introduced, under any pretense, into the Indian country. Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind to any Indian under charge of any Indian superintendent or agent, or introduces or attempts to introduce any ardent spirits, ale, wine, beer, or intoxicating liquor of any kind into the Indian country shall be punished by imprisonment for not more than two years, and by fine of not more than three hundred dollars for each offense. But it shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the Indian country that the acts charged were done under authority in writing from the War Department, or any officer duly authorized thereunto by the War Department. All complaints for the arrest of any person or persons made for violation of any of the provisions of this act shall be made in the county where the offense shall have been committed, or if committed upon or within any reservation not included in any county, then in any county adjoining such reservation, and, if in the Indian Territory, 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, who is not for any reason disqualified; but in all cases such arrests shall be made before any United States court commissioner residing in such adjoining county, or before any magistrate or judicial officer authorized by the laws of the State in which such reservation is located to issue warrants for the arrest and examination of offenders by section ten hundred and fourteen of the Revised Statutes of the United States. And all persons so arrested shall, unless discharged upon examination, be held to answer and stand trial before the court of the United States having jurisdiction of the offense.""

ACT OF MARCH 1, 1895 (28 Stat. 693).

"Chap. 145.-An Act to provide for the appointment of additional judges of the United States court in the Indian Territory, and for other purposes.

"SEC. 8. That any person, whether an Indian or otherwise, who shall, in said Territory, manufacture, sell, give away, or in any manner,

225 U.S.

Opinion of the Court.

described by metes and bounds in the act of May 2, 1890, 26 Stat. 81, 93, c. 182, § 29. It included the lands of

or by any means furnish to anyone, either for himself or another, any vinous, malt, or fermented liquors, or any other intoxicating drinks of any kind whatsoever, whether medicated or not, or who shall carry, or in any manner have carried, into said Territory any such liquors or drinks, or who shall be interested in such manufacture, sale, giving away, furnishing to anyone, or carrying into said Territory any of such liquors or drinks, shall, upon conviction thereof, be punished by fine not exceeding five hundred dollars and by imprisonment for not less than one month nor more than five years."

ACT OF JANUARY 30, 1897 (29 Stat. 506).

"Chap. 109.-An Act to prohibit the sale of intoxicating drinks to Indians, providing penalties therefor, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, 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. But it shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the Indian country that the acts charged were done under VOL. CCXXV-43

the Cherokee Nation, and the city of Vinita, where the petitioner's alleged offense was committed. It is now,

of course, a part of the State of Oklahoma.

It is not open to serious dispute that if the prohibition of the act of 1895 against "carrying into said Territory any such liquors or drinks" remains operative so far as pertains to the carrying of intoxicating liquors from another State into that part of Oklahoma which was the Indian Territory, the acts admittedly done by the petitioner constitute an offense thereunder, of which the United States District Court has jurisdiction. Whether the offense is sufficiently alleged in the indictment is another question, which, on familiar grounds, is not a proper subject-matter for inquiry on habeas corpus. Ex parte Parks, 93 U. S. 18; Ex parte Virginia, 100 U. S. 313, 339; Ex parte Carll, 106 U. S. 521; Ex parte Belt, 159 U. S. 95; Ornelas v. Ruiz, 161 U. S. 502. Recognizing this, counsel for the petitioner, upon the oral argument and in a supplemental brief, modified his original contentions, so as to deal with the act of 1895. As thus modified, the grounds upon which he relies are the following:

First, that the act of 1895, being a special act applicable to the Indian Territory, had the effect of superseding as to that Territory the existing general statute against the introduction and sale of intoxicating liquors in the Indian country.

Secondly, that the act of 1897, being amendatory of the general statute against the introduction and sale of intoxicating liquors in the Indian country, did not apply to the Indian Territory, because that Territory was covered by the special act of 1895.

authority, in writing, from the War Department or any officer duly authorized thereunto by the War Department.

SEC. 2. That so much of the Act of the twenty-third day of July, eighteen hundred and ninety-two, as is inconsistent with the provisions of this Act is hereby repealed."

Thirdly, that the jurisdiction cannot be rested upon the act of 1897, because the place where the alleged offense was committed was not Indian country within the meaning of that act, since there was no Indian title remaining in the town site of Vinita; the insistence being that where there is no Indian title, no inalienable land, and no alloted land held in trust, there can be no "Indian country."

Fourthly, that, whether the act of 1895 or the act of 1897 would otherwise be applicable, these acts were both repealed, as to that part of Oklahoma which was formerly the Indian Territory, by the force of the Oklahoma Enabling Act of June 16, 1906, c. 3335, 34 Stat. 267, under the authority of which the constitution of Oklahoma was adopted and a state government established, covering the territory previously known as Oklahoma and the Indian Territory; and pursuant to which certain statutes were afterwards enacted by the state legislature, viz., an act of March 24, 1908 (Laws of 1907-8, p. 594), known as the Billups Law, being §§ 4156-4209 of the Compiled Laws of Oklahoma of 1909, and an act passed March 11, 1911, Session Laws of Oklahoma, 1910-1911, c. 70, pp. 154-156. The contentions of the Government, on the other hand,

are:

First, that the act of 1895 prohibits the liquor traffic in the Indian Territory, regardless of any question concerning the term "Indian country," or concerning the title to particular lands, or the race or color of the persons affected.

Secondly, that the extinguishment of the Indian land title to the particular locus in quo did not remove it from the operation of § 2139, Rev. Stat., as amended by the acts of 1892 and 1897, because (among other reasons,) a contrary intent is manifested in the treaties and statutes under which that title was extinguished.

Thirdly, That neither by admitting Oklahoma to statehood, nor by anything in the Enabling Act, did Congress

renounce its control over the interstate liquor traffic in what had been the Indian Territory.

The question whether the act of 1895 was superseded by the act of 1897 was not much discussed in the argument. It is a question of nicety, having an importance extending beyond the exigencies of the present case. In the view we take of the other questions, however, we may simplify the discussion by assuming (without conceding) that petitioner's first two points are well taken, and that the act of 1897 did not apply to the Indian Territory because that Territory was covered by the special act of 1895. This at the same time renders it unnecessary for us to consider his third contention, viz., that the locus in quo was not Indian country within the meaning of the act of 1897, because of the extinguishment of the Indian title.

We may thus proceed at once to the question of the effect upon the act of 1895 of the Oklahoma Enabling Act of June 16, 1906 (34 Stat. 267, c. 3335), and the admission of the State of Oklahoma into the Union pursuant thereto. Since the Government concedes that the act of 1895 has been thereby repealed saving so far as it prohibited the carrying of intoxicating liquors, etc., from another State into the Territory, the matter to be discussed is still further narrowed.

Before passing, however, it should be noted that § 2139, Rev. Stat., and the act of 1897 contain prohibitions respecting the sale of intoxicating liquor to Indians, and in this, and perhaps in other important respects, cover ground not covered by the act of 1895. We must not be understood as deciding that these prohibitions are no longer in force within what was the Indian Territory, either because of the assumed effect of the act of 1895 in superseding the previous general statute of which the act of 1897 was amendatory, or because of the Oklahoma Enabling Act and the admission of the State thereunder.