This is an action of replevin for the meat of 14 deer. The action is brought in the name of the state, by authority of the board of game and fish commissioners, under the claim that such meat was in the possession of the defendant five days after the close of the open season, contrary to Laws 1897, c. 221, § 14.
Julia Selkirk intervened, and in her complaint of intervention alleges that at the time of the seizure of the game under the writ of replevin herein, such game was on the White Earth Indian reservation, in this state, and she was in the possession of the same and the owner thereof; that she is an Indian by birth, and a member of one of the tribes of Chippewa Indians dwelling on said reservation, and was, both at the time of the seizure of said game under the writ and at the time she acquired the same, authorized by the United States to trade and barter with the Indians on the reservation; that, during the time when the killing and possession of deer is authorized by the laws of this state, certain tribal Indians lawfully belonging upon the reservation killed the deer thereon, and during such open season bartered the same to her, and that she held the *519same for the purpose of bartering the same to the Indians on the reservation, and of supplying the children attending the Indian school thereon with meat; and that no part of the meat was ever removed, or intended to be removed, from the reservation, except by plaintiff under said writ. Plaintiff demurred to this complaint, on the ground that it does not state either a cause of action or a defense, and appealed from an order overruling the demurrer.
In our opinion, the order appealed from should be affirmed. In Selkirk v. Stephens, 72 Minn. 335, 75 N. W. 386, we had occasion to go into the history of the White Earth reservation. The territory covered by the reservation ceased to be Indian country in 1855, as it wTas in that year ceded by the Indians to the United States, and the laws of the United States and of the territory of Minnesota were then extended over the ceded lands, which remained in that condition until after Minnesota was admitted as a state, in 1858, and until 1864, when a new treaty was made with the Indians, and 1867, when another treaty was made, whereby these ceded lands were set apart as a reservation, and the Indians have since resided and maintained their tribal relations upon the same. We are of the opinion that while, under those circumstances, the jurisdiction of the state authorities over the territory covered by this reservation is very extensive, it is not so extensive as to enable the state authorities to destroy or impair the efficacy of the guardianship of the United States government over the Indians, or destroy the effect of the treaties of the United States government with the Indians.
To prohibit the Indian from fishing and hunting, in order to procure food for his own consumption, would undoubtedly impair or destroy such efficacy. He is less vicious, more contented, and more easily controlled when he is allowed to follow his traditional habits. He acquires the habits, and learns to follow the pursuits, of civilized man but slowly. By compelling him suddenly to break off his old habits, and attempting to compel him to form new ones, he becomes a loafer and a vagabond, both dangerous and criminal, who is a menace to the safety and well-being of all the civilized communities in the vicinity of his reservation. The state has, without objection, for more than 30 years, permitted the tribal government to exist within its borders on this reservation, and we are of the *520opinion that the state cannot, at this late day, do any act which will practically destroy that government. Though they are both connected with the federal government, the tribal government and the state government are rather foreign to each other, and the rights, as against each other, of governments foreign to each other usually grow up out of acquiescence and tradition. We do not wish to be understood as holding that, as between the state government and the tribal government, tradition and acquiescence will have any such an extensive effect as it will between governments wholly foreign to each other; but still we think such tradition and acquiescence, as between the state government and the tribal government, may have sufficient effect to give the tribe a license to hunt and fish within the boundaries of the reservation, as this peculiar right is practically indispensable to the maintaining of the tribal relation. By the course of things for more than 30 years, it must be inferred that the United States government assumed that the Indians had a right to hunt and fish on the reservation, and the state government has acquiesced in that assumption. It is said in U. S. v. Holliday, 3 Wall. 407, 419:
“In reference to all matters of this kind, it is the rule of this court to follow the action of the executive and other political- departments of the government, whose more special duty it is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same.”
After 30 years of the mutual recognition, by both the federal and state governments, of the right of these Indians to do something so essential to their tribal relations, we are of the opinion that the' courts should follow this mutual recognition, and hold that, while the title to all the wild game is in the state, the Indians have a license to hunt on the reservation in their usual and traditional manner, in order to procure food for themselves. In Selkirk v. Stephens, supra, we held:
“This limitation of the power of the state does not arise from the fact that the laws of the state are not operative upon this reservation, but it grows out of the personal relations of such Indians to the general government. They are its wards, and under its guardianship and control, and the state may not interfere with or impair the efficacy of such guardianship.”
*521The federal courts have strongly maintained the right of the federal government to prevent any action, by either the state or the private citizen, which will impair the efficacy of the guardianship of the federal government over its Indian wards. See U. S. v. Holliday, supra; U. S. v. Boyd, 42 U. S. App. 637, 27 C. C. A. 592, 83 Fed. 547; Cherokee Nation v. State, 5 Pet. 1; Worcester v. State, 6 Pet. 515. The two latter cases are instructive, and much in point here. Georgia was one of the 13 original colonies, and clearly, from the time of the treaty of peace with England (if not from the time of the Declaration of Independence) to the time the United States constitution took effect, Georgia had jurisdiction over the Indians within her borders, if any white man’s government had such jurisdiction. But, notwithstanding that, it was held in these two cases that such jurisdiction devolved on the United States government.
But if this game was killed,, or was being held, not for personal consumption by the Indians on the reservation, but for sale or disposal to persons other than the tribal Indians, or for shipment off the reservation, then such game is not protected by the license of the Indians to hunt in their traditional manner, and may be seized, by the state authorities, whenever this can be done without interfering with the person of the Indian in whose custody or possession the game may be, even though it is so seized on the reservation. Whether the game here in question is protected by such license would ordinarily be a question for the jury, and cannot be determined on this demurrer.
Order affirmed.
COLLINS and BUCK, JJ., concur.