In the aftermath of the Dawes Act, Congress nevertheless passed two new, more stringent prohibition statutes. These laws were motivated in part by the civilizing zeal that had animated the Dawes Act, in part by racist assumptions about Native Americans’ proclivity for alcoholism, and in part by broader concerns about the negative social consequences of alcohol consumption that had already led several states and counties to adopt prohibition laws and would eventually drive the adoption of the Eighteenth Amendment. The first of these new prohibition laws, passed in 1895, forbade anyone—including Native Americans—to “manufacture, sell, give away, or in any manner, or by any means furnish [alcohol] to anyone” within the Indian Territory in modern-day Oklahoma. In addition to a fine, this offense carried a potential prison term of between one month and five years. An 1897 statute imposed a fine and a minimum prison sentence of sixty days (with no maximum sentence) for furnishing alcohol 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 . . . exercises guardianship.” This provision was targeted directly at Native Americans who had taken allotments under the Dawes Act.
In Matter of Heff (1905), the Supreme Court struck this second law down as it applied to a Native American who had claimed an allotment and assumed U.S. citizenship. In an opinion by the aptly named Justice David J. Brewer, the Heff Court emphasized that prohibition was fundamentally an exercise of the police power. Ordinarily, Justice Brewer emphasized, the federal government did not have the ability to create such regulations; that power lay with the states. Brewer reasoned that the federal government’s exceptional power to regulate Native Americans’ alcohol consumption derived in part from the Indian Commerce Clause and in part from “the recognized relation between the Government and the Indians[, which] is that of a superior and an inferior, whereby the latter is placed under the care and control of the former.” The Court held, however, that Congress had broken this relationship with Native Americans who had left tribal life and become integrated into the American polity. “[W]hen the United States grants the privileges or citizenship to an Indian, gives to him the benefit of and requires him to be subject to the laws, both civil and criminal, of the State,” Brewer stated, “it places him outside the reach of police regulations on the part of Congress.”