States having jurisdiction of the offense.1 Sec. 2139, R. S., as amended by Act of July 23, 1892 (27 Stat. 260).

1404. Same.-Any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquors, 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 any of its departments, exercise guardianship, and any per

'The title to the act of July 23, 1892, reads: "An act to amend sections twenty-one hundred and thirty-nine, twenty-one hundred and forty, and twentyone hundred and forty-one of the Revised Statutes touching the sale of intoxicants in the Indian country, and for other purposes," yet the enacting clause of the act reads:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section twenty-one hundred and thirty-nine of the Revised Statutes be amended and reenacted so as to read as follows: Section 2139. * *

Then follows the act as set forth in the above paragraph. It is clear the amendment applies only to those parts of the two sections that are inconsistent with the new section. The object of the amendment was to make the prohibition include malt liquors, and to clearly define the person or tribunal to whom complaint should be made. The action directed in sections 2140 and 2141 as to the seizure and destroying of liquor remains unaffected by the amendment. These sections are given in paragraphs 1405 and 1406, post.

As to the meaning of the term Indian country, see Dig. Op. J. A. G., 673 III A. A stock of liquors is not introduced into the Indian country by being transported across an Indian reservation to a place where it may be lawfully sold and is not subject to seizure while in transit nor after its arrival at its place of destination. (U. S. v. Four Bottles of Sour Mash Whisky, 90 Fed. Rep., 720.)

The disposition of spiritous liquors to an Indian under the charge of an Indian agent, who has abandoned his nomadic life and tribal relations and adopted the habits and manners of civilized people, violates section 2139 of the Revised Statutes. (U. S. v. Osborn, 52 Fed. Rep., 58.)

Section 2139 of the Revised Statutes provides that every person who disposes of spirituous liquors to any Indian under the charge of any Indian superintendent or agent shall be punished, etc. Held, that an Indian of the Nez Percés Tribe, a soldier in the United States Army, is within the meaning of the statute. (U. S. v. Hurshman, 53 Fed. Rep., 543.) It is no defense to a prosecution under section 2139 for introducing spirituous liquors into the Indian country that the United States has licensed the traffic in such liquors therein. (U. S. v. Ellis, 51 id., SOS.)

As section 2139 of the Revised Statutes, previous to the amendment of July 23, 1892, made punishable the introduction into the Indian country of “spirituous liquor or wine" only, it did not include lager beer, that being a malt liquor made by fermentation. (In re McDonough, 49 id., 360; U. S. v. Ellis, 51 id., 808, reversed in Sarlis v. U. S., 152 U. S., 570.)

As to the law regarding the introduction of liquor into that part of the Indian country embraced within the limits of the State of Oklahoma, see the Oklahoma enabling act (34 Stat. 267), and the decision of the Supreme Court of the United States in Ex parte Webb (225 U. S., 663). See also the act of March 1, 1913 (37 Stat. 699), prohibiting the shipment or transportation of intoxicating liquor into a State with intent to use the same in any manner in violation of any law of such State.

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

SEC. 2. So much of the act of the twenty-third of July, eighteen hundred and ninety-two, as is inconsistent with the provisions of this act is hereby repealed.1 Act of Jan. 30, 1897 (29 Stat. 506).

1405. Wines for sacramental purposes.-Hereafter it shall not be unlawful to introduce and use wines solely for sacramental purposes, under church authority, at any place within the Indian country or any Indian reservation, including the Pueblo Reservations in New Mexico: Provided also, That the powers conferred by section seven hundred and eighty-eight of the Revised Statutes upon marshals and their deputies are hereby conferred upon the chief special officer for the suppression of the liquor traffic among Indians and duly authorized officers working under his supervision whose appointments are made or affirmed by the Commissioner of Indian Affairs or the Secretary of the Interior. Act of Aug. 24, 1912 (37 Stat. 519).

1406. Search for concealed liquors.-If any superintendent of Indian affairs, Indian agent, or subagent, or commanding officer of any military post has reason to suspect or is informed that any white. person or Indian is about to introduce or has introduced any spirituous liquor or wine into the Indian country in violation of law, such superintendent, agent, subagent, or commanding officer may cause the boats, stores, packages, wagons, sleds, and places of deposit of such person to be searched; and if any such liquor is found therein, the same, together with the boats, teams, wagons, and sleds used in conveying the same, and also the goods, 'packages, and peltries of such person, shall be seized and delivered to the proper officer, and shall be proceeded against by libel in the proper court, and forfeited,

1 See Dig. Op. J. A. G., 672 II F to 675 IV, edition, 1912.

one-half to the informer and the other half to the use of the United States; and if such person be a trader his license shall be revoked and his bond put in suit. It shall, moreover, be the duty of any person in the service of the United States or of any Indian to take and destroy any ardent spirits or wine found in the Indian country, except such as may be introduced therein by the War Department. In all cases arising under this and the preceding section Indians shall be competent witnesses. Sec. 2140, R. S.

1407. Distilleries.-Every person who shall, within the Indian country, set up or continue any distillery for manufacturing ardent spirits, shall be liable to a penalty of one thousand dollars; and the superintendent of Indian Affairs, Indian agent, or subagent, within the limits of whose agency any distillery of ardent spirits is set up or continued, shall forthwith destroy and break up the same. Sec. 2141, R. S.

1408. Prosecution of officer, soldier, etc.-No part of section twentyone hundred and thirty-nine or of section twenty-one hundred and forty of the Revised Statutes shall be a bar to the prosecution of any officer, soldier, sutler or storekeeper, attaché, or employee of the Army of the United States who shall barter, donate, or furnish in any manner whatsoever liquors, wines, beer, or any intoxicating beverage whatsoever to any Indian.' Act of July 4, 1884 (23 Stat. 94).

MISCELLANEOUS PROVISIONS.

1409. Removal of persons from Indian country.-The superintendent of Indian affairs, and the Indian agents and subagents, shall have authority to remove from the Indian country all persons found therein contrary to law; and the President is authorized to direct the military force to be employed in such removal. Sec. 2147, R. S.

The act of July 4, 1884, declaring that section 2139 of the Revised Statutes shall not be a bar to the prosecution of any officer, soldier, or employee of the United States who shall "furnish liquors, wines, beer, or any intoxicating beverage to" any Indian is not a legislative construction of such section. (In re McDonough, 49 Fed. Rep., 360.)

Under the Constitution, the acts of Congress, and the regulations adopted by the Indian Department, the power of the Commissioner of Indian Affairs and the agent acting under him and by his direction in removing anyone not a member of an Indian tribe is a matter intrusted to the discretion of the commissioner, and is not reviewable. (Adams v. Freeman, 50 Pac. Rep., 135.)

An order from a State court restraining an Indian agent from ousting trespassers from an Indian reservation should be disregarded as without jurisdiction. (20 Opin. Atty. Gen., 245.)

An Indian agent has no authority forcibly to eject persons from land not within an Indian reservation, although it is inclosed in allotments made to Indians in fulfillment of a treaty stipulation, and may be restrained by injunetion from so ejecting one who, before such allotment, entered the land as a homestead and made valuable improvements thereon. (La Chapelle v. Bubb, 2 Fed. Rep., 545.)

1410. Apprehension by military force.-The military forces of the United States may be employed in such manner and under such regulations as the President may direct

First. In the apprehension of every person who may be in the Indian country in violation of law; and in conveying him immediately from the Indian country, by the nearest convenient and safe route, to the civil authority of the Territory or judicial district in which such person shall be found, to be proceeded against in due course of law;

Second. In the examination and seizure of stores, packages, and boats, authorized by law;

Third. In preventing the introduction of persons and property into the Indian country contrary to law; which persons and property shall be proceeded against according to law;

Fourth. And also in destroying and breaking up any distillery for manufacturing ardent spirits set up or continued within the Indian country. Sec. 2150, R. S.

1411. Limit of detention.-No person apprehended by military force under the preceding section shall be detained longer than five days after arrest and before removal. All officers and soldiers who may have any such person in custody shall treat him with all the humanity which the circumstances will permit. Sec. 2151, R. S.

'There is not in the treaties with the Indians of the Indian Territory, or sections 2147, 2150, 2152, Revised Statutes, any express authority vested in the President to use the Army in such Territory for the apprehension of local robbers or thieves, etc., or for the protection of corporations or individuals from such robbers or other outlaws, except in so far as such offenders may be persons who are in, or are attempting to enter the Indian country "contrary to law," or are Indians charged with crime. (Sec. 2152, R. 3.) In these cases they could be apprehended by the military forces, but only by virtue of and conformably to the statutes cited, and not (unless they be Indians) because they are train robbers or other offenders against the local peace or laws. (Dig. J. A. G. 100, C.)

The troops of the United States can not be employed in the Indian Territory for the purpose of assisting in the preservation of the peace and the arrest of bandits and outlaws unless they are trespassing upon Indian country, or absconding offenders within the provisions of section 2152 of the Revised Statutes. (21 Opin. Att. Gen., 72.)

Whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more protect themselves than civilians for actual wrongs committed in time of peace under orders emanating from a source which is itself without authority in the premises. Hence a military officer seizing liquors supposed to be in Indian country when they are not is liable to an action as a trespasser. (Bates v. Clark, 95 U. S., 204.)

Officers of the Army making arrests under section 23 of the act of June 30, 1834 (4 Stat. 732; sec. 2150, R. S.), act as officers of civil law. To justify such arrests there must be strong probable cause. (In re Carr, 3 Sawyer, 316.)

But note that, in view of the provisions of section 2151, Revised Statutes, an officer of the Army who detains a person arrested under section 2150 longer than five days before "conveying him to the civil authority," or subjects him when in arrest to unreasonably harsh treatment, renders himself liable to an action in damages for false imprisonment. (In re Carr, 3 Sawyer, 316; Waters v. Campbell, 5 id., 17.)

1412. Arrest of Indians. The superintendents, agents, and subagents shall endeavor to procure the arrest and trial of all Indians accused of committing any crime, offense, or misdemeanor, and of all other persons who may have committed crimes or offenses within any State or Territory, and have fled into the Indian country, either by demanding the same of the chiefs of the proper tribe, or by such other means as the President may authorize. The President may direct the military force of the United States to be employed in the apprehension of such Indians, and also in preventing or terminating hostilities between any of the Indian tribes.1 Sec. 2152, R. S.

1413. Prohibition of permits to Indians to go into Texas.-All officers and agents of the Army and Indian Bureaus are prohibited, except in a case specially directed by the President, from granting permission in writing or otherwise to any Indian or Indians on any reservation to go into the State of Texas under any pretext whatever; and any officer or agent of the Army or Indian Bureau who shall violate this provision shall be dismissed from the public service. And the Secretary of the Interior is hereby directed and required to take at once such other reasonable measures as may be necessary in connection with said prohibition to prevent said Indians from entering said State. Sec. 4, Act of May 11, 1880 (21 Stat. 132).

Held that in the execution of process of arrest under the act of March 3, 1885 (rendering Indians amenable to the criminal laws of the Territories), the military may, by direction of the President, legally be employed to aid the civil officials in such arrests, such employment being expressly authorized by section 2152, Revised Statutes. (Dig. J. A. G., 100, C.)