United States v. Hurshman

53 F. 543, 1892 U.S. Dist. LEXIS 118

• Court: District Court, D. Washington
• Decided: November 16, 1892
• Status: Published

Opinion

HANFORD District Judge

Although the defendant has been acquitted, and this particular cuse is no longer of importance, the question upon the demurrer is i ew, and merits a concise and precise statement and decision in writing. The presentment charged the defendant with having disposed of spirituous li’quor to one James Williams, an Indian of the Nez Perces tribe, who was at the time a regular enlisted soldier in the United States army, on duty with his regiment at Ft. Walla Walla. Section 2139, Bev. St., upon which the prosecution is founded, reads as follows:

“Sen. 2139. No ardent spirits shall be introduced, under any pretense, into tlie Indian country. Every person wbo sells, exchanges, gives, barters, or disposes oí any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or agent * * * shall be punishable. * * *”

The sufficiency of the presentment is questioned on the ground that it does not allege that the Indian to whom the liquor was furnished was at the time under charge of an Indian superintendent or agent of the United States, and it is assumed that the contrary appears by the statement that said Indian was at said time a regularly enlisted soldier of the United States army, on duty with his regiment. I hold that the words “under the charge of any Indian superintendent or agent,” were intentionally put into the statute by congress, and must be given force and effect as expressive of the legislative will. I have repeatedly decided that it is not a crime, under this statute, to dispose of spirituous liquor to British Columbia Indians, or Indians upon whom the rights, privileges, and immunities of citizenship have been conferred by the laws of the United States; and it is my opinion now that the statute under consideration is not applicable to any case of selling or disposing of liquor to an Indian not at the time subject to the general authority and supervision given by the laws of the United States to the officers of Indian affairs. I also concede that, consistently with the maintenance of military discipline, there can be no control by officers of the department of the interior of soldiers while on duty, or during their teínas of enlistment. But, when an Indian enlists in the military service, the officers of Indian affairs are only partially relieved of their cliarge concerning him, and but temporarily deprived of power to control his person. While he is in the army said officers continue to be charged with the duty of caring for his family and property and interests as a member of his tribe, and upon his discharge from the army their right to control him will be fully restored. I consider that the principle applicable to the case of an Indian who, by absenting himself from his home for pleasure or profit, temporarily places himself beyond the physical power of his superintendent or agent, should be applied to this case. Neither the Indians themselves, the officers of the army who induce them to enlist, or officers of the interior department who consent to it, have any power to "change the laws; and no act of either, affecting for the time being the actual situation of an Indian, can change Ms status from that of a ward of the nation.

That the Indian named in the presentment is under charge of an Indian superintendent or agent is a legal conclusion from the fact of his being a Indian of the Nez Perces tribe. The facts being stated, the presentment is a sufficient pleading, although it does not state the legal conclusion.