1. The 107th section of the Internal Revenue Act of July 20,
1868, which enacts that
"The internal revenue laws imposing taxes on distilled spirits,
fermented liquors, tobacco, snuff, and cigars, shall be construed
to extend to such articles produced anywhere within the exterior
boundaries of the United States, whether the same shall be within a
collection district or not,"
applies to and is in force in the Indian territory embraced
within the Western District of Arkansas, and occupied by the
Cherokee nation of Indians, notwithstanding the 10th article of the
prior treaty of 1866, between the United States and that nation, by
which it was agreed that
"Every Cherokee Indian and freed person residing in the Cherokee
nation shall have the right to sell any products of his farm,
including his or her livestock, or any merchandise or manufactured
products, and to ship and drive the same to market without
restraint, paying any tax thereon which is now or may be levied by
the United States on the quantity sold outside of the Indian
territory."
2. An act of Congress may supersede a prior treaty.
Error to the District Court for the Western District of
Arkansas, the case involving first the question of the intention of
Congress, and second, assuming the intention to exist, the question
of its power, to tax certain tobacco in the Territory of the
Cherokee nation in the face of a prior treaty between that nation
and the United States that such tobacco should be exempt from
taxation.
Page 78 U. S. 617
MR. JUSTICE SWAYNE stated the case and delivered the opinion of
the Court.
This is a writ of error to the District Court of the Western
District of Arkansas. The case, so far as it is necessary to state
it, lies within a narrow compass.
The proceeding was instituted by the defendants in error to
procure the condemnation and forfeiture of the tobacco in question,
and of the other property described in the libel of information,
for alleged violations, which are fully set forth, of the revenue
laws of the United States. Elias C. Boudinot, for himself and his
co-partner, Stand Wattie, interposed, and by his answer submitted,
among others, the following allegations: that the firm were the
sole owners of the property described in the libel; that the
property was found and seized in the Cherokee nation, outside of
any revenue collection district of the United States; that the
manufacturing of the tobacco was carried on in the Cherokee nation,
and that the manufactured tobacco, raw material, and other
property, were never within any collection district nor subject to
the taxes mentioned in the libel, nor were the owners bound to
comply with the requirements of the revenue laws of Congress; that
the revenue laws were complied with as to all tobacco sold or
offered for sale outside of said Indian country, if any such there
were; that the claimants are Cherokee Indians by blood, and
residents of the Cherokee nation, and they deny that the property
had become forfeited as alleged in the libel.
At the trial, the claimants moved the court to instruct the jury
that the act of Congress, entitled "An Act imposing taxes on
distilled spirits, and for other purposes," approved July 20, 1868,
is not in force in any part of the Indian territory embraced in the
Western District of Arkansas; that the 10th article of the treaty
of 1866, between the Cherokee nation and the United States, was in
full force with reference to the territory of the Cherokee nation;
that the
Page 78 U. S. 618
67th section of the act of 1868 requires stamps to be sold only
to manufacturers of tobacco in the respective collection districts,
and that it gave the claimants no legal right to buy such stamps to
place on their tobacco in the Cherokee nation, and that they are
not responsible for not having done so. The court refused to give
these instructions. The jury found for the United States, and
judgment was entered accordingly. The claimants excepted to the
refusal of the court to give the instructions asked for, and have
brought the case here for review.
The only question argued in this Court, and upon which our
decision must depend, is the effect to be given respectively to the
107th section of the act of 1868, [
Footnote 1] and the 10th article of the treaty of 1866,
between the United States and the Cherokee nation of Indians.
They are as follows:
"
Section 107. That the internal revenue laws imposing
taxes on distilled spirits, fermented liquors, tobacco, snuff, and
cigars, shall be construed to extend to such articles produced
anywhere within the exterior boundaries of the United States,
whether the same shall be within a collection district or not."
"
Article 10th. Every Cherokee Indian and freed person
residing in the Cherokee nation shall have the right to sell any
products of his farm, including his or her livestock, or any
merchandise or manufactured products, and to ship and drive the
same to market without restraint, paying any tax thereon which is
now or may be levied by the United States on the quantity sold
outside of the Indian territory."
On behalf of the claimants it is contended that the 107th
section was not intended to apply, and does not apply, to the
country of the Cherokees, and that the immunities secured by the
treaty are in full force there. The United States insist that the
section applies with the same effect to the territory in question
as to any state or other territory of the United States, and that
to the extent of the provisions of the section, the treaty is
annulled.
Page 78 U. S. 619
Considering the narrowness of the questions to be decided, a
remarkable wealth of learning and ability have been expended in
their discussion. The views of counsel in this Court have rarely
been more elaborately presented. Nevertheless the case seems to us
not difficult to be determined, and to require no very extended
line of remarks to vindicate the soundness of the conclusions at
which we have arrived.
In
Cherokee Nation v. Georgia, [
Footnote 2] Chief Justice Marshall, delivering the
opinion of this Court, said: "The Indian territory is admitted to
compose a part of the United States. In all our geographical
treatises, histories, and laws it is so considered." In
United
States v. Rogers, [
Footnote
3] Chief Justice Taney, also speaking for the Court, held this
language:
"It is our duty to expound and execute the law as we find it,
and we think it too firmly and clearly established to admit of
dispute that the Indian tribes residing within the territorial
limits of the United States are subject to their authority, and
where the country occupied by them is not within the limits of one
of the states, Congress may by law punish any offense committed
there, no matter whether the offender be a white man or an
Indian."
Both these propositions are so well settled in our jurisprudence
that it would be a waste of time to discuss them or to refer to
further authorities in their support. There is a long and unbroken
current of legislation and adjudications, in accordance with them,
and we are aware of nothing in conflict with either. The subject,
in its historical aspect, was fully examined in
Johnson v.
McIntosh. [
Footnote 4] In
the 11th section of the act of the 24th of June, 1812, it was
provided
"That it shall be lawful for any person or persons to whom
letters testamentary or of administration shall have been or may
hereafter be granted by the proper authority in any of the United
States or the territories thereof to maintain any suit,"
&c. In
Mackey v. Coxe, [
Footnote 5] it was held that the Cherokee country was a
territory of the United States within the meaning of this act. The
107th
Page 78 U. S. 620
section of the act of 1868 extends the revenue laws only as to
liquors and tobacco over the country in question. Nowhere would
frauds to an enormous extent as to these articles be more likely to
be perpetrated if this provision were withdrawn. Crowds, it is
believed, would be lured thither by the prospect of illicit gain.
This consideration doubtless had great weight with those by whom
the law was framed. The language of the section is as clear and
explicit as could be employed. It embraces indisputably the Indian
territories. Congress not having thought proper to exclude them, it
is not for this Court to make the exception. If the exemption had
been intended, it would doubtless have been expressed. There being
no ambiguity, there is no room for construction. It would be out of
place. [
Footnote 6] The section
must be held to mean what the language imports. When a statute is
clear and imperative, reasoning
ab inconvenienti is of no
avail. It is the duty of courts to execute it. [
Footnote 7] Further discussion of the subject is
unnecessary. We think it would be like trying to prove a
self-evident truth. The effort may confuse and obscure but cannot
enlighten. It never strengthens the preexisting conviction.
But conceding these views to be correct, it is insisted that the
section cannot apply to the Cherokee nation because it is in
conflict with the treaty. Undoubtedly one or the other must yield.
The repugnancy is clear, and they cannot stand together.
The second section of the fourth article of the Constitution of
the United States declares that
"This Constitution and the laws of the United States which shall
be made in pursuance thereof, and all treaties which shall be made
under the authority of the United States, shall be the supreme law
of the land."
It need hardly be said that a treaty cannot change the
Constitution or be held valid if it be in violation of that
instrument.
Page 78 U. S. 621
This results from the nature and fundamental principles of our
government. The effect of treaties and acts of Congress, when in
conflict, is not settled by the Constitution. But the question is
not involved in any doubt as to its proper solution. A treaty may
supersede a prior act of Congress, [
Footnote 8] and an act of Congress may supersede a prior
treaty. [
Footnote 9] In the
cases referred to, these principles were applied to treaties with
foreign nations. Treaties with Indian nations within the
jurisdiction of the United States, whatever considerations of
humanity and good faith may be involved and require their faithful
and good faith may be inobligatory. They have no higher sanctity,
and no greater inviolability or immunity from legislative invasion
can be claimed for them. The consequences in all such cases give
rise to questions which must be met by the political department of
the government. They are beyond the sphere of judicial cognizance.
In the case under consideration, the act of Congress must prevail
as if the treaty were not an element to be considered. If a wrong
has been done, the power of redress is with Congress, not with the
judiciary, and that body, upon being applied to, it is to be
presumed, will promptly give the proper relief.
Does the section thus construed deserve the severe strictures
which have been applied to it? As before remarked, it extends the
revenue laws over the Indian territories only as to liquors and
tobacco. In all other respects, the Indians in those territories
are exempt. As regards those articles only, the same duties are
exacted as from our own citizens. The burden must rest somewhere.
Revenue is indispensable to meet the public necessities. Is it
unreasonable that this small portion of it shall rest upon these
Indians? The frauds that might otherwise be perpetrated there by
others, under the guise of Indian names and simulated Indian
ownership, is also a consideration not to be overlooked.
We are glad to know that there is no ground for any
imputation
Page 78 U. S. 622
upon the integrity or good faith of the claimants who prosecuted
this writ of error. In a case not free from doubt and difficulty,
they acted under a misapprehension of their legal rights.
Judgment affirmed.
[
Footnote 1]
15 Stat. at Large 167.
[
Footnote 2]
30 U. S. 5 Pet.
17.
[
Footnote 3]
45 U. S. 4 How.
572.
[
Footnote 4]
21 U. S. 8
Wheat. 574.
[
Footnote 5]
59 U. S. 18
How. 103.
[
Footnote 6]
United States v.
Wiltberger, 5 Wheat. 95.
[
Footnote 7]
Mirehouse v. Rennel, 1 Clark & Finelly 527;
Wolff v. Koppel, 2 Denio 372.
[
Footnote 8]
Foster & Elam v.
Neilson, 2 Pet. 314.
[
Footnote 9]
Taylor v. Morton, 2 Curtis 454;
The Clinton
Bridge, 1 Walworth, 155.
MR. JUSTICE BRADLEY (with whom concurred MR. JUSTICE DAVIS),
dissenting.
I dissent from the opinion of the Court just read. In my
judgment it was not the intention of Congress to extent the
internal revenue law to the Indian territory. That territory is an
exempt jurisdiction. Whilst the United States has not relinquished
its power to make such regulations as it may deem necessary in
relation to that territory, and whilst Congress has occasionally
passed laws affecting it, yet by repeated treaties the government
has in effect stipulated that in all ordinary cases, the Indian
populations shall be autonomies, invested with the power to make
and execute all laws for their domestic government. Such being the
case, all laws of a general character passed by Congress will be
considered as not applying to the Indian territory unless expressly
mentioned. An express law creating certain special rights and
privileges is held never to be repealed by implication by any
subsequent law couched in general terms, nor by any express repeal
of all laws inconsistent with such general law, unless the language
be such as clearly to indicate the intention of the legislature to
effect such repeal. Thus it was held by the Supreme Court of New
Jersey in
State v. Brannin [
Footnote 2/1] that whilst the provisions of a city
charter, it being a municipal corporation, may be repealed or
altered by the legislature at will, yet a general statute repealing
all acts contrary to its provisions will not be held to repeal a
clause in the charter of such a municipal corporation upon the same
subject matter and inconsistent therewith. The same point is
decided in numerous other cases. For example, when a railroad
charter, subject to repeal,
Page 78 U. S. 623
exempted the company from all taxation except a certain
percentage on the cost of its works, it was held that this
exemption was not repealed by a subsequent general tax law enacting
that all corporations should be taxed for the full amount of their
property as other persons are taxed, and repealing all laws
inconsistent therewith. But where the repealing clause in the
general law repealed all laws inconsistent therewith, whether
general or
local and special, it was held that it did
repeal the special exemption. [
Footnote
2/2] In every case, the intent of the legislature is to be
sought, and in the case of such special and local exemptions the
general rule for ascertaining whether the legislature does or does
not intend to repeal or affect them, is to inquire whether they are
expressly named; if not expressly named, then whether the language
used is such, nevertheless, as
clearly to indicate the
legislative intent to repeal or affect them.
In the case before the Court, I hold that there is nothing to
indicate such a legislative intent. The language used is nothing
but general language imposing a general system of requirements and
penalties on the whole country. Had it been the intent of Congress
to include the Indian territory, it would have been very easy to
say so. Not having said so, I hold that the presumption is that
Congress did not intend to include it.
The case before us is, besides, a peculiar one. The exempt
jurisdiction here depends on a solemn treaty entered into between
the United States government and the Cherokee nation, in which the
good faith of the government is involved, and not on a mere
municipal law. It is conceded that the law in question cannot be
extended to the Indian territory without an implied abrogation of
the treaty
pro tanto. And the opinion of the court goes
upon the principle that Congress has the power to supersede the
provisions of a treaty. In such a case, there are peculiar reasons
for applying with great strictness the rule that the exempt
jurisdiction must be expressly mentioned in order to be
affected.
Page 78 U. S. 624
This view is strengthened by the fact that there is territory
within the exterior bounds of the United States to which the
language of the 107th section of the recent act can apply, without
applying it to the Indian territory, to-wit, the Territory of
Alaska. And it does not appear by the record that there are not
other districts within the general territory of the United States
which are in like predicament.
The judgment, according to these views, ought to be
reversed.
THE CHIEF JUSTICE, and NELSON and FIELD, JJ., did not hear the
argument.
[
Footnote 2/1]
3 Zabriskie 484.
[
Footnote 2/2]
State v. Mintion, ib., 529.