The petitioner was convicted in the United States District Court for the Northern Division of Idaho at the May term, 1905, upon an indictment charging him with the crime of introducing intoxicating liquors into the Indian country, to wit, into and upon the Nez Perce reservation, in the county of Nez Perce, in the state of Idaho, in violation of section 2139 of the Revised Statutes of the United States, as amended by the act of January 30, 1897, c. 109, 29 Stat. 506 . The petition for the writ of habeas corpus and certiorari was presented to this court during its recent session in Seattle, and after consideration a writ of certiorari was directed to issue returnable at Portland, to bring up a transcript of the record and proceedings in the case.

The petitioner challenges the jurisdiction of the trial court on the ground that the act of the petitioner, which is made the basis of the charge, namely, that he introduced intoxicating liquors into the Indian country, was not committed in the Indian country, but in the village of Cul de Sac, a municipal corporation organized under the laws of the state of Idaho. The petitioner is a Umatilla Indian, who has received an allotment of land in severalty.

The act of January 30,1897, provides as follows:

Act Feb. 8, 1887, c. 119, 24 Stat. 388 , authorized the President to allot lands in severalty to Indians on the various reservations, whenever in his opinion any reservation or any part thereof would be advantageous for agricultural and grazing purposes. Section 6 of the act provided as follows:

Pursuant to this act, the President authorized negotiations with the Nez Perce Indians in Idaho for the cession to the United States of certain of their lands in that state, and thereupon an agreement was entered into between commissioners of the United States appointed for that purpose and the principal men and other male adults of the tribe for such cession. This agreement was dated May 1,1893. It provides in article 1 for the cession, relinquishment, and conveyance to the United States by the Nez Perce Indians of all their claim, right, title, and interest in and to all the unallotted lands within the limits of the Nez Perce Reservation, saving and excepting certain described tracts of land which are retained by the Indians. It is provided in article 9 as follows:

*7 It is under the terms of this agreement contained in article 9 that the petitioner is charged with having introduced intoxicating liquors into the Indian country. The village of Cul de Sac is located upon the land ceded by the Indians to the United States, about seven or eight miles from the exterior boundary of the Indian school reservation, and no reservation or any part of a reservation used for government purposes or for Indian purposes is within the boundaries of such village. Prior to the transaction involved in this case the title to the lands upon which the village of Cul de Sac is located had passed from the United States by patent under the townsite laws to the probate judge of Nez Perce county, Idaho, in trust for the inhabitants of the village.

There is no question as to the plenary authority of Congress over the tribal relations of the Indians. Such authority 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. Lone Wolf v. Hitchcock, 187 U. S. 565 , 23 Sup. Ct. 216, 47 L. Ed. 299 . But the question involved in the present case does not relate to the tribal affairs of the Nez Perce Indians. The question is whether Congress can break up the tribal relations of these Indians, allot lands to the individual Indians in severalty, give them the benefit of and make them subject to the laws, both civil and criminal, of the state of Idaho, make them citizens of the United States and declare them entitled to the rights, privileges, and immunities of such citizens, open the lands which they have ceded to the United States to settlement under the land laws of the United States, provide for the conveyance of such lands to individuals and municipal corporations, and still retain over such lands the police power prescribed in article 9 of the agreement of May 1, 1893, with the Nez Perce Indians, providing that for a period of 25 years all the laws of the United States prohibiting the introduction of intoxicating liquors into the Indian country shall be applicable to such lands? We do not think that Congress can reserve or exercise such police power within the territorial limits of a state. The police power of the United States can only be exercised where the legislative authority of Congress excludes territorially all state legislation. United States v. De Witt, 9 Wall. 41, 45 , 19 L. Ed. 593 ; Slaughter House Cases, 16 Wall. 36, 64 , 21 L. Ed. 394 .

The late case entitled Matter of Heff, 197 U. S. 505 , 25 Sup. Ct. 506, 49 L. Ed. 848 , was a petition to the Supreme Court of the United States for a writ of habeas corpus. The petitioner had been convicted of selling liquor to an Indian, a member of the Kickapoo Tribe, who had received an allotment of a patent of land under the provisions of the act of February 8, 1887. It was claimed in that case, as in this, that this was in violation of the act of January 30, 1897. The Supreme Court, speaking of the limitation of the police power of the general government in such a case, said:

The court says further:

This was said with respect to a sale of liquor to an Indian, over whom it was said the general government had parted with its guardianship, and it was held that the court had no jurisdiction of the offense charged. In the present case the sale of liquor was made in a municipal territory clearly within the jurisdiction of the state, and outside the jurisdiction of the United States. With respect to such a case, the court, in the Case of Heff, supra, said:

This statement of the law by the Supreme Court we think disposes of the present case.

It is urged on behalf of the United States that the protection of the Indians afforded by the agreement of May 1, 1893, is necessary to protect them from the deplorable consequences resulting from the liquor traffic, that the state does not assume to regulate such traffic in that territory, and that, in default of a law prohibiting the sale of intoxicating liquors to these Indians, their degradation and ruin will soon be complete. It is undoubtedly the duty of the white man to protect the Indian from this consuming vice, and there can be no question as to the necessity for prohibitory legislation in this regard. But the courts cannot supply such legislation, or enforce agreements beyond their jurisdiction. This argument should be addressed to the Legislature of the state, which will undoubtedly perform its duty in this respect.

It follows that the District Court of Idaho did not have jurisdiction of the offense charged in the indictment, and therefore the petitioner is entitled to his discharge from imprisonment; and it is so ordered.