Zevely v. Weimer

82 S.W. 941, 5 Indian Terr. 646, 1904 Indian Terr. LEXIS 61

Opinions

TownsbND, J.

The appellants have filed two specifications of error, as follows: "(1) The court erred in overruling the demurrer filed by appellants. (2) The court erred in rendering judgment against appellants, perpetually enjoining them from carrying out the orders of the Secretary of the Interior to close the stores of the appellees in the city of South McAlester because of their failure to secure the legislative permit of the nation to expose goods, wares, and mei’chandise for sale.”

To have a clear understanding what relief appellees sought when they asked to enjoin appellant Shoenfelt, we must consider what Shoenfelt proposed to do. The allegation in their complaint is, that, unless they paid the amount “demanded by the Choctaw Nation for the privilege of doing business in the Choctaw Nation,” he would close their stores. The demand, then, was a demand of the Choctaw Nation for the exercise of the privilege of doing business — simply a license or permit fee. This is not a tax, in the ordinary acceptation of that term, and can only be so designated in the sense that any exaction by governmental authority might be called a tax; but as applied in this case the term is inaccurate, and to call it a debt is without authority in the decisions of any court. A license fee is a sum demanded of an individual in return for the grant of a privilege, which he did not previously possess. A tax, as ordinarily understood, is a contribution demanded by a sovereign from his subjects, as one evidence of their allegiance, in return for his protection. But these tribal governments are not sovereign in any such a sense. Sovereignty, in its very nature, implies unlimited jurisdiction over persons and property within its territorial limits. In the very nature and structure of our government, there can be but two sovereignties — the sovereignty of the federal government and that of the states. Mr. Justice Miller, in the ease of United States vs Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228, happily expresses this idea: “But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the government of the United States, or of the states of the Union. There exists within the broad domain of sovereignty but these two.”

What is, then, the relation of these tribal governments to the government of the United States? It is essential that this relation should be clearly understood, in order that we may correctly apprehend the questions submitted to us upon this appeal. In Cherokee Nation vs Kansas Railway Company, 135 U. S. 653, 654, 10 Sup. Ct. 969, 970, 34 L. Ed. 295, Justice Harlan, in delivering the opinion of the court, says: “From the beginning of the government to the present time, they have been treated as ‘wards of the nation/ ‘in a state of pupilage/ ‘ dependent political communities/ holding such relations to the general government that they and their country, as declared by Chief Justice Marshall in Cherokee Nation vs Georgia, 5 Pet. 1, 17, 8 L. Ed. 25, ‘are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands or to form a political connection with them would be considered by all as an invasion of our territory and an act of hostility.’ ”

We know, as a matter of history, that the Indians embraced in the different tribes or nations originally occupied the territory now included within the United States and territories. Neither the white man, after his settlements, • nor the colonial governments or foreign governments, ever recognized any Indian title, other than that of possession or occupancy of the country. The territory now within the limits of the Choctaw Nation was a part of the Louisiana Purchase, and was ceded to the government of the United States by France in 1803. By treaty of August 24, 1818 (7 Stat. 176), the Quapaw Indians relinquished to the United States their claim to a large tract of country, in- including the lands of the Choctaw Nation; and by the treaty of June 2, 1825 (7 Stat. 240), the Osages relinquished all their right and title to the land occupied by the Five Civilized Tribes. As the white settlements progressed westward, the occupancy of the land by the different Indian tribes became'annoying and burdensome to the white man east of the Mississippi river, and Congress, in its desire to forever settle the Indian question, by an act approved May 28, 1830, 4 U. S. Stat. 411, “provided for an exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the Mississippi river, setting aside the land acquired from the Osages as a permanent reservation for the Indian tribes.” Section three of this act authorizes the President to solemnly assure the tribe or nation with which the exchange was made that the United States would forever secure and guarantee to them and their heirs or successors the country so exchanged with them, and, if they preferred, the United States would cause a patent or grant to be made and executed to them for the same, “provided, always, that such lands shall revert to the United States if the Indians become extinct or abandon the same.” By treaty made September 27, 1830, proclaimed February 24, 1831 (7 U. S. Stat. 333), it is provided: “The United States under a grant specially to be made bj the President of the United States shall cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi river, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it, beginning near Fort Smith where the Arkansas boundary crosses the Arkansas river, running thence to the source of the Canadian Fork, if in the limits of the United States, or to those limits; thence due south to Red river, and down Red river to the west boundary of the territory of Arkansas, thence north along that line to the beginning. The boundary of the same to be agreeable to the treaty made and concluded at Washington City in the year 1825. The grant to be executed as soon as the present treaty shall be ratified.” In article 4 of said treaty, it was provided: “Art. 4. The government and people of the United States are hereby obliged to secure to the said Choctaw Nation of Red People the jurisdiction and government of all the persons and property that may be within their limits west/ so that no territory or state shall ever have a right to pass laws for the government of the Choctaw Nation of Red People and their descendants, and that no part of the land granted them shall ever be embraced in any territory or state; but the United States shall forever secure said Choctaw Nation from, and against, all laws except such 'as from time to time may be enacted in their own national councils, not inconsistent with the Constitution, treaties and laws of the United States; and except such as may, and which have beeny enacted by Congress to the extent that Congress, under the Constitution, are required to exercise a legislation over Indian affairs. But the Choctaws, should this treaty be ratified, express a wish that Congress may grant to the Choctaws the right of punishing by their own laws any white man who shall come into their nation and infringe any of their national regulations.” It was provided further in article 10 thereof as follows: “Art. 10. No person shall expose goods or other article for sale as a trader, without a written permit from the constituted authorities of the nation, or authority of the laws of Congress of the United States under penalty of forfeiting the articles, and the constituted authorities of the nation shall grant no license except to such persons as reside in the nation and are answerable to the laws of the nation. The United States shall be particularly obliged to assist to prevent ardent spirits from being introduced into the nation.” Under this latter treaty a patent was issued to the Choctaw Nation on the 23d day of March, 1842, conveying a tract of land, the boundaries of which were the same as contained in said treaty of 1830. By a treaty proclaimed March 24, 1837, the Choctaw Nation granted to the Chickasaw Nation the privilege of forming a district within the limits of their country. See.Revision of Indian Treaties, p, 1046. Article 7 of the treaty of 1855 (Revision of Indian Treaties, p. 277) provided: “Art. 7. So far as may be compatible with the Constitution of the United States and the laws made in pursuance thereof, regulating trade and intercourse with the Indian tribes, the Choctaws and Chickasaws shall be secured in the unrestricted right of self-government, and full jurisdiction over persons and property within their respective limits, excepting, however, all persons, with their property, who are not, by birth, adoption or otherwise citizens or members of either the Choctaw or Chickasaw tribe; and all persons, not being citizens or members of either tribe, found within their limits, shall be considered intruders, and be removed from and kept out of the same by the United States agent, assisted, if necessary, by the military, with the following exceptions, viz.: Such individuals as are now, or may be, in the employment of the government, and their families; those peacefully traveling or temporarily sojourning in the country or trading therein, under license •from the proper authority of the United States, and such as may be permitted by the Choctaws or Chickasaws, with the assent of the United States agent, to reside within their limits, without becoming citizens or members of either of said tribes.” 11 Stat. 612. In 1866 the United States made a treaty with the Choctaws and Chickasaws (Revision of Indian Treaties, pp. 285-303) which contains, among others, the following articles: In article 7 it is provided: “Art. 7. The Choctaws and Chickasaws agree to such legislation as Congress and the. President of the United States may deem necessary for the better administration of justice and the protection of the rights of person and property within the Indian Territory. Provided, however, such legislation shall not in any wise interfere with or annul their present tribal organization, or their respective legislatures or judiciaries, or the rights, laws, privileges or customs of the Choctaw and Chickasaw Nations respectively.” In paragraph 8 of article 8 it is provided: “(8) The Choctaws and Chickasaws also agree that a court or courts may be established in said territory with such jurisdiction and organization as Congress may prescribe. Provided, that the same shall not interfere with the local judiciary of either of said nations.” By article 10 it-was provided: “Art. 10. The United States reaffirms all obligations arising out of treaty stipulations or acts of legislation with regard to the Choctaw and Chickasaw Nations, entered into prior to the late Rebellion, and in force at that time, not inconsistent herewith; and further agrees to renew the payment of all annuities and other moneys accruing under such treaty stipulations and acts of legislation, from and after the close of the fiscal year ending on’the thirtieth of June, in the year eighteen hundred and sixty-six.” In article 39 it was provided : “Art. 39. No person shall expose goods or other articles for sale as a trader without a permit of the legislative authorities of the nation he may propose to trade in, but no license shall be required to authorize any member of the Choctaw or Chickasaw Nations to trade in the Choctaw or Chickasaw country who is authorized by the proper authority of the nation, nor to authorize Choctaws or Chickasaws to sell flour, meal, meat, fruit and other provisions, stock, wagons, agricultural implements or tools brought from the United States into the said country.” In article 45 it was provided: “Art. 45. All the rights, privileges and immunities heretofore possessed by said nations or individuals thereof, or to which they were entitled under the treaties and legislation heretofore made and had in connection with them shall be, and are hereby declared to be, in full force, so far as they are consistent with the provisions of this treaty.” 14 Stat. 87, 88, 90, 95.

It will thus be seen that the Choctaw Nation is not holding its territory by simple occupancy, but by a patent conveying and describing by metes and bounds the territory conveyed to it by the United States government. Its relations to the government of the United States — and the same applies to the Five Civilized Tribes — are sui generis among Indian reservations. It also appears by article 7, treaty of 1855, that, so far as compatible with the Constitution and laws regulating trade and intercourse, the Choctaws and Chickasaws shall be secured in the unrestricted right of self-government, and full jurisdiction over persons and property “within their respéctive limits,” excepting noncitizens, who shall be considered intruders, and be removed, with the exception of those “trading therein under license from the proper authority of the United States.” And by treaty between the United States and the Choctaws and Chickasaws of 1866, art. 39, it is provided: “Art. 39. No person shall expose goods or other articles for sale as a trader without a permit of the legislative authorities of the nation he may propose to trade in.”

It thus clearly appears by the treaty of 1855 that the Choctaws and Chickasaws shall be secured in the unrestricted right of self-government, and full jurisdiction — where? “Within their respective limits.” They are not to have jurisdiction over noncitizens and their property “found within their limits,” and such shall be considered intruders and be removed, but an exception to those to be removed are those “trading”' therein under license from the United States;” and by the treaty of 1866, art. 39. “No person shall expose goods for sale as a trader without a permit of the legislative authorities of the nation he proposes to trade in;” the treaty of 1855 being thus modified by the later treaty of 1866 so that the license shall be granted by the legislative authorities of the nation, instead of by the government of the. United States. By the express terms of the treaties, the only persons to be removed are the non-citizens “found within their limits,” but “traders” are not to expose goods for sale without a permit from the legislative authorities, and are expressly excepted from those to be removed. The appellees, by their own complaint, admit that they are traders “without license from the legislative authorities of the nation they propose to trade in.” By article 45 of the treaty of 1866 it is provided: “Art. 45. All the rights, privileges and immunities heretofore possessed by said nations or individuals thereof, or to which they were entitled under the treaties and legislation heretofore made and had in connection with them shall be, and are hereby declared to be, in full force, so far as they are consistent with the provisions of this treaty.” It seems, therefore, quite unnecessary to enter the field of speculation or explore the realms of imagination to discover by what authority the tribal governments of the Choctaws and Chickasaws fix a license fee for traders, or to investigate for precedents for such action, when by express terms it is under and by virtue of the power conferred by the aforesaid treaties with the government of the United States.

As has heretofore shown, these Indian tribes are not sovereign. The United States government is their sovereign, and, when the Constitution of the United States gave to Congress the power “to regulate commerce with foreign nations and among the several states and with the Indian tribes,” it placed the whole subject of intercourse with Indians in the hands of Congress. The courts on numerous occasions have spoken of them as domestic dependent nations, as wards of the government of the United States, and of the government as the guardian of these Indian tribes and people. We must therefore look to the treaties, agreements, and acts of Congress to determine the power of these limited Indian governments, and also to learn what obligations the government of the United States has imposed upon itself in its care and supervision of its Indian wards. By the treaty of 1855 the United States obligates itself to secure to the Choctaws and Chickasaws the unrestricted right of self-government “within their respective limits,” and by the treaty of 1866 it obligates itself to see that “no person shall expose goods for sale without a permit.” Are these provisions of those treaties still in force? They are unless repealed. Do they need interpretation? If so, how shall they be interpreted? In United States vs Choctaw, etc., Nations, 179 U. S. 531, 532, 21 Sup. Ct. 163, 164, 45 L. Ed. 291, Justice Harlan said: “There was much discussion at the bar as to the principles that should govern the court when determining the scope and effect of a treaty between the United States and Indian tribes. All agree that, as a general rule, in the interpretation of written instruments the intention of the parties must control, and that such intention is to be gathered from the words used; the words being interpreted, not literally nor loosely, but according to their ordinary signification. If the words be clear and explicit, leaving no room to doubt what the parties intended, they must be interpreted according to their natural and ordinary significance. If the words are ambiguous, then resort may be had to such evidence, written or oral, as will disclose the circumstances attending the execution of the instrument, and place the court in the situation in which the parties stood when they signed the writing to be interpreted. To what extent, if at all, have these rules been enlarged or modified w'hen the instrument to be interpreted is a treaty between the United States and Indian tribes? In The Kansas Indians, 5 Wall. 737, 760, 18 L. Ed. 667, it was said that enlarged rules of construction have been adopted in reference to Judian treaties, citing as the words of Chief Justice Marshall in Worcester vs Georgia, 6 Pet. 515, 563, 582, 8 L. Ed. 483, but which were in fact the words of Mr. Justice McLean in his concurring opinion in that case, the following: 'The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treat}'-, they should be considered as used only in the latter sense.’ Mr. Justice McLean further said: ‘How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should 'form the rule of construction ’ In United States vs Kagama, 118 , 16 Sup. Ct. 1109, 30 L. Ed. 228, the Indian tribes in this country are spoken of as wards of the nation — communities dependent for their food and their political rights, as well as for protection, on the United States. And in Choctaw Nation vs United States, 119 U. S. 1, 28, 7 Sup. Ct. 75, 30 L. Ed. 306, it was said that the relation between the United States and the Indian tribes was that of superior and inferior, and that the rules to be applied in the case then before the court were those that govern public treaties, which, even in case of controversies between nations equally independent, were not to be interpreted as rigidly as documents between private persons governed by a system of technical law, 'but in the light of the larger reason and the superior justice that constitute the spirit of the law of nations.' In Jones vs Meehan, 175 U. S. 1, 11, 20 Sup. Ct. 1, 44 L. Ed. 49, it was said that a treaty between the United States and an Indian tribe must be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.” If they shall not expose goods for sale without a perrmit, what remedy could be more direct and certain than to close their stores? And is the government of the United States still under obligations to carry out those provisions?

It is expressly agreed by the learned counsel for the appellees that this license fee was a legal imposition, but they say, when Congress and the Choctaws and Chickasaws entered into the Atoka agreement, that, by the provisions thereof segregating the land within the boundaries of the respective municipalities, they by implication repealed the provision of .article 39 of the treaty of 1866. It is not claimed that there was any express repeal. By the treaty of September 27, 1830, art. 2 (7 Stat. 333), it is provided that “the United States, under a grant specially to be made by the President of the United States, shall cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi river, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it;” then describing the boundaries of the grant. And by the treaty of 1855 (11 Stat. 612) it is provided: “Art. 7. So far as may be compatible with the Constitution of the United States and the laws made in pursuance thereof, regulating trade and intercourse with the Indian tribes, the Choctaws and Chickasaws shall be secured in the unrestricted right of self-government, and full jurisdiction over persons and property within their respective Emits.” The language is not that the Indian nations shall be secured in their jurisdiction over persons upon lands “belonging to the tribe,” or “which the tribe is entitled to occupy,” but they express clearly and uñmistakably that the authority of each ■ nation shall be exercised throughout the entire territorial domain, the boundaries of which are set forth in that same instrument.

Repeals by implication are not favored, and the rule has frequently been declared, when a repeal of a former statute is sought by the enactment of a subsequent statute to work such repeal or annulment, the repugnancy between the one and the other in relation to a particular subject matter must be so clear as to admit of no other reasonable construction. In 9 Op. Attys. Gen. p. 47, it is said: “It is so easy for the Legislature, in making one law, to say that another law on the same subject is repealed, and when it is meant it is so likely to be said, that we never presume it when' it is not said, unless the two laws are in such palpable conflict that both cannot be executed. When different statutes give to different persons privileges or powers which cannot subsist together, the latter grant must of necessity be construed as a withdrawal of the earlier one. But in order to justify such a construction, it must appear to be a ease of flat repugnancy or of irreconcilable inconsistency.” In Ex parte Crow Dog, 109 U. S. 570, 3 Sup. Ct. 405, 27 L. Ed. 1030, Justice Matthews says: “Implied repeals are not favored. The implication must be necessary. There must be a positive repugnancj'- between the provisions of the new laws and those of the old. Wood vs United States, 16 Pet. 342, 10 L. Ed, 987; Daviess vs Fairbairn, 3 How. 636, 11 L. Ed. 760; United States vs Tynen, 11 Wall. 88, 20 L. Ed. 153; State vs Stoll, 17 Wall. 425, 21 L. Ed. 650.”

The Attorney General of the United States, on this question, in his letter advising the Secretary of the Interior, under date of September 7, 1900, says: “But however this may be, and even if the Indian title to the particular lots sold has been extinguished, and conceding that the statute authorizes the purchase of such lots by an outsider, and recognizes his right to do so, the result is the same, for the legal right to purchase lands within an Indian nation gives the purchaser no right of exemption from the laws of such nation, nor does it authorize him to do any act in violation of the treaties with such nation. These laws requiring a permit to reside or carry on a business in the Indian country existed long before and at the time this act was passed. And if an outsider saw proper to purchase a town lot under this act of Congress, he did so with the full knowledge that he could occupy it for a residence or business only by permission from the Indians. I do not say that Congress might not violate its treaty promises, and authorize the outside world to enter upon and occupy the lands of the Indians without their consent, but do say that provisions very different from any contained in this act would be required to justify the imputation of any such intention. All that this act does in this respect is to give the consent of the United States to such purchase, with the assumption that the purchaser, if he wishes to occupy, will comply with the local laws just as in other cases. The United States might sell land which it holds in a state, but it would be a strange contention that this gave the purchaser any immunity from local laws or taxation. The case is much like that of a federal license to manufacture and sell spirituous liquors, which, while good against the United States, confers no right where such sale and manufacture are forbidden. This act was passed with a full knowledge of these laws of the Indian Nation, approved by the President, and having the full force of laws; and, had Congress intended to nullify these 'laws, or take away the power to enact them, or to exempt the purchaser of lots or any other persons from their operation, it is quite safe to say that it would have done so by provisions' very different from those in the act of 1898.”

By the treaty of 1830, heretofore quoted, the tract of country conveyed to the Choctaws is “to inure to them while they shall exist as a nation and live on it,” and by treaty of 1855 they are to have unrestricted right of self-government “within their respective limits.” The lots in the different municipalities segregated under the Atoka agreement were not sold to non-citizens alone, but to Indians as well. By the same agreement it is provided: “In view of the modification of legislative authorities and judicial jurisdiction herein provided, and the necessitjr of the continuance of the tribal governments so modified, in order to carry out the requirements of this agreement, that the same shall continue for the period of eight years from the fourth day of March, eighteen hundred and ninety-eight. This stipulation is made in the belief that the tribal government so modified will prove so satisfactory that there will be no need or desire for further change till the lands now occupied by the Five Civilized Tribes shall, in the opinion of Congress, be prepared for admission as a state of the Union. But this provision shall not be construed to be in any respect an abdication by Congress of power at any time to make needful rules and regulations respecting said tribes.” It is thus expressly provided that these tribal governments shall continue for a period of eight years from the 4th day of March, 1898, and until they expire they certainly exist as a nation, and have unrestricted jurisdiction “within their respective limits.” Why? Because Congress has said so. There is no repugnancy between the former treaties and the Atoka agreement. By act of Congress approved May 27, 1902 (chapter 888, 32 Stat. 259), the Secretary of the Interior was forbidden to remove any person from the Indian Territory “who is in lawful possession of any lots or parcels of land in any town or city of the Indian Territory which has been designated as a town site under existing laws and treaties.”

By the foregoing repeal of the authority to remove intruders, counsel for appellees contend that no penalty is left to the Choctaw Nation to prohibit traders from exposing goods for sale- without license. It is persistently assumed that intruders and traders who expose goods for sale without license refer to the same class of people, and that the repeal of the penalty against the enforcement of the quasi penal statute against intruders repeals the statute which prohibits traders to expose goods for sale without license. No authority is cited, and the contention has heretofore been shown to be incorrect.

When Congress found the Indian question was not settled, and it had no more reservations to which to remove the Indians, it appears to have arrived at the conclusion to allot the lands in severalty, establish municipal governments in thickly settled portions of the territory, and, so far as possible consistent with its sacred obligations as guardian for innocent wards, to comply with the wishes of the clamorous white settlers of the Indian Territory to be placed in possession of the earth and the fullness thereof. Having sold the lots in. the town sites under the provisions of the Atoka agreement, it acted justly when it repealed the authority to remove intruders who had purchased any of those lots. But nowhere and at no time has Congress said that persons desiring “to expose goods for sale” shall not pay a license. fee as provided in the treaty of 1866, and courts of justice, when called upon by traders who confess to be violating the laws, should not assume a jurisdiction committed by Congress to the executive department of the government, and should not seek to destroy the governments of these nations by taking away their revenue, when Congress had provided for their continued existence.

Before an injunction can issue restraining the Secretary of the Interior, or those acting under him, it must appear that he was'not authorized to exercise discretion of judgment in the premises. How can this be said? In this very case the Secretary of the Interior, as was his duty, called upon the Attorney General of the United States for an opinion, which was rendered, and under which he was proceeding to act. Can it be said that action taken under these circumstances is not that calling for the exercise of the highest judgment and discretion? It is certainly true that, if such action can be taken, it can only be done upon some principle not heretofore announced, and will constitute a departure involving the gravest consequences. If this can be done, then the executive department of the government can, on the varied matters committed to its care in the Indian Territory, only act under the direction of the United States Courts established within this jurisdiction.

The absolute power and dominion of the United States in the exercise of its political and administrative power in dealing with Indians and Indian property is illustrated and asserted in numerous decisions. We cite Cherokee Nation vs Georgia, 5 Pet. 1, 8 L. Ed. 25; Johnson vs McIntosh, 8 Pet. 543, 5 L. Ed. 681; United States vs Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228; Choctaw Nation vs United States, 119 U. S. 1, 7 Sup. Ct. 75, 30 L. Ed. 306; Cherokee Nation vs Southern Kansas Railway Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295; Stephens vs Cherokee Nation, 174 U. S. 445, 19 Sup. Ct. 722, 43 L. Ed. 1041. In Lone Wolf vs Hitchcock, 187 U. S. 553, 23 Sup.Ct. 216, 47 L. Ed. 299, the contention was made that under and by virtue of article 12 of a certain treaty the .Indians were vested with an interest in lands, and that that interest could not be divested, except in accordance with the provisions of said treaty; and Justice White, in his opinion, says: “The contention in effect ignores the status of the contracting Indians, and the relation of dependency they bore and continue to bear towards the government of the United States. To uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act if the assent of the Indians could not be obtained. * * * Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government. * * * In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned — which we do not wish to be understood as implying— by the use made by Congress of its power, relief must be sought by an appeal to that body for redress, and not to the courts.” In the case of Cherokee Nation vs Hitchcock, 187 U. S. 294, 23 Sup. Ct. 115, 47 L. Ed. 183, the court says: “We are not concerned in this case with the question whether the act of June 28., 1898, and the proposed action thereunder, which is complained of, is or is not wise and calculated to operate beneficially to the interests of the Cherokees. The power existing in Congress to administer upon and guard the tribal property, and the power being political and administrative in its nature, the manner of its exercise is a question within the province of the legislative branch to determine, and is not one for the courts.” In Pilgrim vs Beck (C. C.) 69 Fed. 898, Judge Shiras says: “The management and control of these lands for the benefit of the Indian is in the hands of the Department of the Interior, and it is for the officials of that department to give weight to any equities or considerations of hardships that may exist in favor of any of the complainants herein. The Indian agent, acting under the instructions of the department, is charged with the duty of protecting the interests of the Indians, and it is not for the court to interfere with his action on the ground of hardship to the complainants.” The President, by express statute, is directed to protect these Indians. Section 2114, Rev. St. U. S., is as follows: “The President is authorized to exercise general superintendence and care over any Indian tribe or nation which was removed upon an exchange of territory under authority of the act of May twenty-eighth, eighteen hundred and thirty, ‘to provide for an exchange of lands with the Indians residing in any of the states or territories and for their removal west of the Mississippi/ and to cause such tribe or nation to be protected, at their new -residence, against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons whatever.” Under section 2058, Rev. St. U. S., the Indian agent is directed to superintend the intercourse with Indians, agreeably to law, and execute and perform such regulations and duties, not inconsistent with law, as may be prescribed by the President, the Secretary of the Interior, the Commissioner of Indian Affairs, or the Superintendent of Indian Affairs.

The courts will take judicial knowledge of the'rules and regulations of the executive of the government. See Caha vs United States, 152 U. S. 221, 14 Sup. Ct. 517, 38 L. Ed. 415. In this case Justice Brewer says: “It maybe laid down as a general rule deducible from the cases that wherever, by the express language of any act of Congress, power is intrusted to either of the principal departments of government to prescribe rules and regulations for the transaction of business in which the public is interested, and in respect to which they have a right to participate, and by which they are to be controlled, the rules and regulations prescribed in pursuance of such authority become a mass of that body of public records of which the courts take judicial notice.” Under the provisions of section 2068, Rev. St. U. S., the Secretary of the Interior promulgated the following rule: “See. 558. Agents are enjoined to observe with care the laws, and the rules and regulations thereunder, governing the business of all licensed traders, and to see that they are strictly complied with. If the persons carry on trade within a reservation with the Indians, without a license, or if persons who have received license and neglecting to renew the same, continue to trade after the expiration of the license, agents will close the stores of such traders, and immediately report the facts to the Indian Office, in order that legal steps may be taken to enforce the penalties of the law. Violations of the foregoing regulations in other respects must also be at once reported to the Indian Office by the agent in charge of the reservation where the violations occur.” The regulations under which appellants in this case are acting set forth in the exhibits to the demurrer.

In Re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55, Justice Miller, discussing the powers of the executive departments of the government, says: “In the view we take of the Constitution of the United States, any obligation fairly and properly inferable from that instrument, or any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is ‘ a law,’ within the meaning of this phrase. It would be a great reproach to the system of government of the United States, declared to be within its sphere sovereign and supreme, if there is to be found within the domain of its powers no means of protecting the judges, in the conscientious and faithful discharge of their duties, from the malice and hatred of those upon whom their judgments may operate unfavorably. * * * Here, again, we are met with the theory that the government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that government. We hold it to be ah incontrovertible principle that the government of the United States may, by means of physical force exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws and to execute its functions in all places does not derogate from the power of the state to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case the words of the Constitution itself show which is to yield. ‘This Constitution, and all laws which shall be made in pursuance thereof, * * * shall be the supreme law of the land.' * * * Without the con-current sovereignty referred to, the national government would be nothing but an advisory government. Its executive power would be absolutely nullified. Why do we have marshals at' all, if they cannot physically lay their hands on persons and things in the performance of their proper duties? What functions can they perform, if they cannot use force ? In executing the processes of the courts, must they call" on the nearest constable for protection? Must they rely on him to use the requisite compulsion, and to keep the peace, whilst they are soliciting and entreating the parties and bystanders to allow the law to take its course? This is the necessary consequence of the positions that are assumed. If we indulge in such impracticable views as these, and.keep on refining and re-refining, we shall drive the national government out of the United States, and relegate it to the District of Columbia, or perhaps to some foreign soil. We shall bring it back to a condition of greater helplessness than that of the old confederation. * * * It must execute its powers, or it is no government. It must execute them on the land as well as on the sea, on things as well as on persons. And to do this it must necessarily have power to command obedience, preserve order, and keep the peace; and no person or power in this land has the right to resist or question its authority, so long as it keeps within the bounds of its jurisdiction. * * * Const. § 3, art. 2, declares that the President ‘shall take care that the laws be faithfully executed,’ and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important of them, and to fill vacancies. He is declared to be commander in chief of the army and navy of the United'States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called ‘cabinet ministers.’ These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called; and thus he is enabled to fulfill the duty of his great department, expz-essed in the phrase that ‘he shall take care that the laws be faithfully executed.’ Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?” Can there be any question that the' power to enforce the terms of the treaty, that “no person shall expose goods for sale without a permit,” is a duty imposed upon the executive department of the government? And when in the discharge of that duty, it is not within the jurisdiction of the courts to enjoin such action.

That the order of the Department of the Interior in this matter is a legal writ of process, and not in violation of article 5 of the amendments to the Constitution of the United States, see United States vs Mullin (D. C.) 71 Fed. 682. This authorised the action of the appellants.

The treaty of 1866 says no person shall expose goods for sale without a permit, and counsel for appellees say: “But the penalty has been repealed, and that repeals the statute. Therefore the President is powerless to do anything.” This does not seem to coincide with the views of Atty. Gen. Black upon that condition of things. In 9 Op. Attys. Gen., 519, Atty. Gen. J. S. Black says: “The acts of Congress sometimes give the President a broad discretion in the use of the means by which they are to be executed, and sometimes limit his power so that he can exercise it only in a certain prescribed manner. Where the law directs a thing to be done without saying how, that implies the power to use such means as may be necessary and proper to accomplish the end of the Legislature. But where the mode of perforfning a duty is pointed out by statute, that is the exclusive mode, and no other can be followed. The United States have no common law to fall back upon when the written law is defective. If, therefore, an act of Congress declares that a certain thing shall be done by a particular officer, it cannot be done by a different officer. The agency which the law furnishes for its own execution must be used to the exclusion of all others.” In 19 Op. Attys. Gen. p. 515, Atty. Gen. Miller, in discussing the powers of the Postmaster General, says: “Power to establish post offices and postroads is conferred upon Congress, but the policy of the government from the time the general post office was established has been to delegate the power to designate the places where the mails shall be received and delivered to the Postmaster General Having found that the powers of the Postmaster General to. establish post offices was justified by usage and the policy of the Government from its foundation, the court held that the power to discontinue post offices was incident to the power to establish them, and that therefore the discontinuance of the post office by the Postmaster General was legal, notwithstanding the fact that a postmaster had been appointed by the President, by and with the advice and consent of the Senate, for a term of four years/ which had not expired at the time of the discontinuance of the post office.” We think the rule laid down in Beck vs Flournoy L. S. & R. E. Co., 65 Fed. 38, 12 C. C. A. 505, is applicable to this case. It is as follows:

“It is not within the legitimate province of a court of equity to assist a wrongdoer, like the appellee, in retaining the possession of property which it has acquired in open violation of an act of Congress, when the party against whom relief is sought is an officer of the United States who is acting under the direction and control of the Secretary of the Interior.”

We are of the opinion, after a careful examination of the record and briefs filed in this case, that the judgment of the court • below should be reversed, the demurrer sustained, and the complaint dismissed by this court, and it is so ordered.

RAYMOND, C. J., concurs.