INDICTMENT AND INFORMATION (193°)- 3. The omission of any distinct everment in an indictment charging a conspiracy to commit the offense against the United States of introducing intoxicating liquors into the Indian country, that the conspiracy was to introduce such liquors from without the state, caurot be regarded after verdict as a defect in form, to be ignored under U. S. Rev. Stat. § 1025, Comp. Stat. 1913, § 1691, where the court has before it only the strict record, and therefore cannot say that the trial proceeded upon a different theory from that indicated by the indictment, or that its averments were supplemented by the proofs. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. 626; Dec. Dig. 193.] INDIANS (35)-FEDERAL REGULATION 4. Pending the continuance, conform ably to the Oklahoma enabling act of June 16, 1906 (34 Stat. at L. 267, chap. 3335), §3, of the prohibition under state laws, of the manufacture and sale of intoxicating liquors in the former Indian Territory, and the introduction of such liquors from other parts of the state into that territory, the provisions of the act of March 1, 1895 (28 Stat. at L. 693, chap. 145), § 8, against the introduction of liquors into the Indian Territory, are not enforceable so far as they relate to intrastate transactions. CY COUNTRY. Assistant Attorney General Wallace for respondent. Messrs. E. G. McAdams, Norman R. Haskell, C. B. Stuart, A. C. Cruce, and M. K. Cruce as amici curia, Mr. Justice Pitney delivered the oponion of the court: In the district court of the United States for the southwestern division of the western district of Missouri the petitioners, Joplin Mercantile Company and Joseph Filler, with others, were indicted, under § 37 of the Criminal Code (act of March 4, 1909, 35 Stat. at L. 1096, chap. 321, Comp. Stat. 1913, § 10,201), formerly § 5440 Rev. Stat.; the charge being that at Joplin, Missouri, within the jurisdiction of the court, the defendants did unlawfully, feloniously, etc., "conspire together to commit an offense against the United States of America, to wit, to unlawfully, knowingly, and feloniously introduce and attempt to introduce malt, spirituous, vinous, and other intoxicating liquors into the Indian country cating liquors into the which was formerly the Indian Territory, and now is included in a portion of the state of Oklahoma, and into the city of Tulsa, Tulsa county, Oklahoma, which was formerly within and is now a part of what is known as the Indian country, and into other parts and portions of that part of Oklahoma which lies within the Indian [E4. Note.-For other cases, see Indians, Cent. Dig. 11 61, 62; Dec. Dig. § 33.] INDIANS (38)-INDICTMENT-SUFFICIEN. country." Overt acts are alleged, each of INTRODUCING LIQUOR INTO INDIAN which consisted in delivering to an express 5. The destination of intoxicants is 5. The destination of intoxicants is company in Joplin certain packages of insufficiently averred to have been in the In-toxicating liquors, to be transported thence dian country, under an indictment charging to Tulsa, Oklahoma, alleged to be within a conspiracy to commit the offense against the United States of introducing liquor into the Indian country, contrary to the act of January 30, 1897 (29 Stat. at L. 506, chap. 109), where, among the contemplated destinations set forth, are "other parts and portions of that part of Oklahoma which lies within the Indian country." the Indian country. A demurrer and a motion to quash having been overruled, petitioners pleaded to the indictment, were tried and found guilty. A motion in arrest of judgment having been denied, they sued out a writ of error from the circuit court of appeals, where the only question raised [Ed. Note. For other cases, see Indians, Cent. Was whether the Dig. 22, 64, 66; Dec. Dig. § 38.°] [No. 648.] was whether the indictment charged an offense against the laws of the United States; neither the evidence nor the charge of the trial court being brought up. The Argued January 11, 1:15. Decided Feb judgment of the district court was affirmed ruary 23, 1915. N WRIT of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit to review a judgment which affirmed a conviction in the District Court for the Southwestern Division of the Western District of Missouri of a conspiracy to commit the offense against the United States of introducing intoxicating liquors into the Indian country. Affirmed. (213 Fed. 926), and the present writ of certiorari was applied for, principally upon the ground that the decision of the court of appeals was to some extent in conflict with the views expressed by this court in Ex parte Webb, 225 U. S. 663, 56 L. ed. 1248, 32 Sup. Ct. Rep. 769, and United States v. Wright, 229 U. S. 226, 57 L. ed. 1160, 33 Sup. Ct. Rep. 630. That clause of the indictment which sets forth the conspiracy does not in terms allege, as a part of it, that the liquor was to be brought from without the state of Mr. Paul A. Ewert for petitioners. Oklahoma; nor does this clause refer, for See same case below, 213 Fed. 926. •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes But the tory, manufacture or light upon its meaning, to the clauses that | spirituous, or any ardent or intoxicating liquor of any The offense against the laws of the United States that was the object of the conspiracy must have had reference to one or the other of two distinct prohibitions. The one is that arising from the act of July 23, 1892 (27 Stat. at L. 260, chap. 234), amending § 2139, Rev. Stat., and amended in its turn by the act of January 30, 1897 (29 Stat. at L. 506, chap. 109, Comp. Stat. 1913, § 4137). The other is § 8 of the act of March 1, 1895 (28 Stat. at L. 693, chap. 145). These are set forth in chronological order in 225 U. S. 671. The distinction now pertinent is that under the act of 1897: "Any person who shall introduce or attempt to introduce any malt, In Ex parte Webb, supra, we dealt with the effect of the Oklahoma enabling act, and the admission of the state thereunder, upon the prohibitions contained in the act of 1895, and held that this act remained in force so far as it prohibited the carrying of liquor from without the new state into that part of it which was formerly the Indian Territory. In United States Wright, supra, we held that the prohibition against the introduction of intoxicating liquors into the Indian country, found in the act of 1897, was not repealed with respect to intrastate transactions by the enabling act and the admission of the state. In the present case, the court of appeals held that transportation of intoxicating liquors from the westerly portion of Oklahoma to that part which was formerly Indian Territory was prohibited not only by the act of 1897, but by the act of 1895; holding that this act remained unrepealed as to intrastate commerce in intoxicating liquors, notwithstanding the intimations of this court to the contrary in the Webb and Wright Cases. In behalf of the government it is now insisted that the indictment is clearly sustainable under the act of 1897, and that it is therefore unnecessary to pass upon the question raised about the act of 1895. But, in view of its importance, and the confusion that would probably result if the matter were left in uncertainty, we deemed it proper to allow the writ of certiorari, and now deem it proper to pass upon the merits of the question with respect to both acts. The court of appeals correctly considered that the question whether the act of 1895 remains in force respecting intrastate trans actions was not concluded by our decision | sizing the fact that Indian Territory con- in the United States, from which the in- The court of appeals declared that the effect of holding that the enabling act and the admission of the state repealed the law of 1895 as to importations from parts of Oklahoma not in Indian Territory would be that importations would remain prohibited from the north, south, and east of the territory, while those from the west would be turned over to the state; and that the provision of the enabling act requiring the Constitution of the new state to provide a scheme of liquor prohibition is of no validity if Oklahoma sees fit to repeal the prohibition, as it is said she is at liberty to do, being equal in power with the original states, and entitled to set aside The argument has much weight. This all restrictions placed upon her that are court, when deciding the Webb and Wright not obligatory under the Constitution. Cit-Cases, fully appreciated the force of the ing Coyle v. Smith, 221 U. S. 559, 55 L. ed. considerations referred to, as will be mani853, 31 Sup. Ct. Rep. 688. As indicating fest, we think, by reference to the opinions, that the act was passed in part as an exer- especially that delivered in the former tion of the power of guardianship over case. But it seems to us that the views the Indians, and in part under the power expressed by the court below in the presto regulate commerce with them, the court pointed to the pledges of the Federal government, contained in repeated treaties, to protect the Indians of the Civilized Tribes against the evils of intercourse with people of the white race, especially with respect to the sale of intoxicating liquors; empha ent case merely question the reasonableness of implying a repeal of the act of 1895, and hardly attribute full force to the very clear language of the enabling act. Upon the question of reasonableness, the fact that importations of liquor into the territory from the north, east, and south should remain subject to the interdict of the Fed- | state commerce, because in that aspect it eral law, while importations from the west (unless originating without the state) were remitted to state control, is not an anomalous result, but one rather characteristic of the inter-action of our Federal and state governments. discriminates against the state of Oklahoma by forbidding transportation of liquor into that state from without, while permitting the unrestricted transportation of liquor into the other states; and (b) that it cannot be sustained as an exercise of the power of Congress to regulate commerce with the Indian tribes because it gives a preference to the state of Oklahoma by permitting that state to regulate for itself the commerce in intoxicating liquors between the people of other parts of the state and the former Indian Territory, while denying to the people of all the other states the right to engage in such commerce with the same territory. The result sought to be deduced is that, by reason of the passage of the enabling act and the admission of the state thereunder, the act of 1895 cannot be sustained at all. It is said this does not impute to Congress the purpose to pass an act in excess of its powers under the Constitution; that the act when passed was justified not only as a regulation of commerce with the Indian tribes, but as an exercise of jurisdiction over territory then within the exclusive jurisdiction of the United States; and that it is now unconstitutional as to interstate transactions, not because of the want of power in Congress to originally pass it, but because of the changed conditions growing out of the admission of the state under an enabling act inconsistent with the continuance in force of the act of 1895. And it is said that this question is not foreclosed by the decision in the Webb Case sustaining the act as to interstate transactions, becauseand this is true the question under § 9 of article 1 of the Constitution was not then raised. Citing Boyd v. Alabama, 94 U. S. 645, 648, 24 L. ed. 302, 303. We pass on to state, in outline, the grounds upon which the judgment is assailed by counsel for petitioners, and in a separate argument by friends of the court. It is insisted that the provision of the enabling act requiring the state to forbid, under penalties, the introduction of intoxicating liquors from other parts of the state into the former Indian Territory can be upheld only by construing it as repealing the provisions of the act of 1895 so far as they deal with such intrastate transactions, because otherwise the enabling act would be repugnant to the commerce clause of the Constitution of the United States as an attempt to authorize concurrent regulation by state and Federal authority of commerce with the Indians, which, it is said, must be exclusively regulated either by state or by nation; that the enabling act may be reasonably construed as relinquishing to the state the exclusive control over commerce in intoxicating liquors between other parts of the state and the former Indian Territory, but not as a regulation of commerce with Indians, because, it is insisted, under the Constitution, Congress cannot delegate to a state the power to regulate commerce with the Indians, any more than the power to regulate interstate commerce; and hence the prohibition clause of the enabling act is to be sustained as a surrender to the state of jurisdiction over its own citizens, thereby declared by Congress to be no longer members of Indian tribes so far as commerce in intoxicating liquors is concerned; the enabling act being thus treated The reasoning, like the opposed reasoning as in effect a determination by Congress of the court below, has force; but we think that the tribal relations and guardianship it has also elements of weakness. Thus,of the Indians should cease, at least as to to mention only one or two of these,-it traffic in liquor between them and the citi- is not easy to see how any practical preferzens of other portions of the state, leaving ence is given to the state of Oklahoma in the state to regulate this by means of the the way of permitting commerce in intoxilegislation that the enabling act required cating liquors to be conducted between other it to enact on the subject. It is next argued portions of the state and the former Indian that, the act of 1895 having been super- Territory while denied to the people of seded as to intrastate transactions by the other states, when the very clause of the enabling act, it is beyond the power of enabling act that operates, if any does, Congress to continue it in force as to inter- to destroy the former universality of the state transactions, and this for two reasons, act of 1895, does not permit, but prohibits, both based upon the provision of § 9 of commerce in liquors between the one part article 1 of the Constitution, that "no pref- of the state and the other; the only differerence shall be given by any regulation ence here important being that, as to inof commerce or revenue to the ports of one ternal commerce, the state enforces the state over those of another:" (a) that the prohibition, while as to interstate commerce prohibition cannot be maintained as an it is enforced by the United States. Nor exercise of the power to regulate inter- 'is the suggestion convincing that the act of 1895 (if repealed as to intrastate com- bill in the House of Representatives (II. merce only) remains as a discriminatory R. Report No. 496, January 23, 1906, 59th regulation of commerce between the states Cong. 1st Sess. vol. 1). There was a large unfavorable to Oklahoma; for in this aspect population of Indians in the Indian Terriit forbids not the introduction of liquors tory, but a much larger population of whites. from other states into Oklahoma, but only Under the provisions of the Curtis act (30 their introduction into that particular Stat. at L.. 495, chap. 517), towns had been part of it which, because of the larger organized and were growing rapidly, and population of Indians that it contains, much of the land had been allotted. Conand because of the previous treaties and gress no doubt had in mind the existing the other circumstances pointed out in the agreements with the Five Civilized Tribes, Webb Case, Congress deemed to be proper some of them recently made, by which, in ly entitled to that protection. Moreover, one form or another, the United States had supposing that unconstitutional preferences agreed to maintain laws against the intromust be deemed to arise from a partial duction, sale, etc., of liquors within the repeal of the net of 1895 by the prohibi- territory of t tribes (225 U. S. 684-680). tory provision of the enabling act, it would, In the 1st section of the enabling act a we think, be more logical to avoid the con- reservation was made of the authority of stitutional difficulties by giving less force the United States "to make any law or to that provision of the enabling act than regulation respecting such Indians, their by giving to it a force quite beyond the ex-lands, property, or other rights, by treaties, pressed purpose of Congress. The result agreement, law, or otherwise, which it would be, if the argument of petitioners as would have been competent to make if this to the impossibility of concurrent regula-act had never been passed." The authority tion of intrastate transactions in liquors of Congress to preserve in force existing with the former Indian Territory by state and nation is sound, that the state prohibition of the liquor traffic in the territory and between the other parts of the state and the territory would have to remain in abeyance until Congress should expressly repeal the act of 1895. United laws or enact new ones after statehood, with reference to traffic or intercourse with the Indians, including the liquor traffic, was well established; the power of Congress over such commerce being plenary, and independent of state boundaries. States v. Holliday, 3 Wall. 407, 418, 18 Enough has been said to show the princi- L.. ed. 182, 186; United States v. 43 Gallons pal grounds of respective contentions. And of Whiskey (United States v. Lariviere) it is curious to observe that on each side 93 U. S. 188, 195, 197, 23 L. ed. 846-848, the argument rests largely upon the sup position that the implied repeal of the act of 1895, if deduced from the inconsistent provisions of the enabling act upon the same subject, operated in effect to legalize commerce in intoxicating liquors between the eastern and the western portions of the state. But since the principal inconsistency is that in one ease the prohibition of the traffic is to be enforced by the United States, and in the other case by the state, many of the difficulties disappear as soon as clearly stated. We need not further analyze the constitutional argument submitted in be- | 694, 34 Sup. Ct. Rep. 387; Johnson v. half of petitioners, and must not be under stood as committed respecting it. Conceding that the question with which we have to deal is by no means easy of Folution, we think a right solution may be had by considering the terms of the enabling act in the light of the situation that was presented to Congress, and in view of its constitutional powers. The situa tion of the In lians and the Indian lands at the time is so familiar that it need not be here rehearsed. In addition to what has been said upon the subject in our recent decisions, reference may be made to the Committee Report that accompanied the i s. c. 108 U. S. 491, 27 L. ed. 803, 2 Sup. Ct. Rep. 906; United States v. Kagama, 118 U. S. 375, 383, 30 L. ed. 228, 230, 6 Sup. Ct. Rep. 1109; Dick v. United States, 208 U. S. 340, 353, 52 L. ed. 520, 525, 28 Sup. Ct. Rep. 399; Hallowell v. United States, 221 U. S. 317, 323, 55 L. ed. 750, 753, 31 Sup. Ct. Rep. 587; Ex parte Webb, 225 U. S. 663, 683, 56 L. ed. 1218, 1256, 32 Sup. Ct. Rep. 769; United States v. Wright, 229 U. S. 226, 237, 57 L. ed. 1160, 1166, 33 Sup. Ct. Rep. 630; Perrin v. United States, 232 U. S. 478, 483, 58 L. ed. 691, Gearlds, 234 U. S. 422, 438, 58 L. ed. 1383, 1390, 34 Sup. Ct. Rep. 794. Still, the territory was to be erected into a state, and the Indians themselves were to have the rights of citizens. As we have already held in the Wright Case, 229 U. S. 226, 237, 57 L. ed. 1160, 1166, 33 Sup. Ct. Rep. 630, it was the purpose to maintain in full force the acts of 1892 and 1897 the same in this state as in other states where Indian country or Indian allotments held in trust by the government, or Indians as wards of the government, were found. And while we intimate no question that Congress could have maintained the more sweeping |