According to Grant, “a system which looks to the extinction of a race is too horrible for a nation to adopt without entailing upon itself the wrath of all Christendom and engendering in the citizens a disregard for human life and the rights of others, dangerous to society.”136 It was not, however, merely the wrath of other “civilized nations” that propelled the Grant administration to seek alternatives to warfare with the tribes. Economics and the railroads also played a key role in his decisions.
In the report issued by the Senate’s Committee on the Pacific Railroad, Senator William Stewart (R., Nevada) wrote that tribes “can only be permanently conquered by railroads. The locomotive is the sole solution of the Indian question, unless the government changes its system of warfare and fights the savages the winter through as well as in summer.”137 Furthermore, Senator Stewart noted that the past thirty-seven years of wars with tribes had cost the United States twenty thousand lives and more than $750,000,000. In fact, urged Stewart, “the chairman of the House Committee on Indian Affairs estimated recently that the present current [expense] of our warfare with the Indians was $1,000,000 a week—$144,000 dollars a day.”138 Grant’s “Peace Policy,” it was believed, could do no worse and would undoubtedly be far less expensive and more morally defensible.
The fifth and most important modification in Indian policy centered on the subject of whether or not to continue the treaty process with tribal nations.139 The rapidity and comprehensiveness of western expansion had forced federal officials to rethink their Indian policy. Treaty-making thus came under fire. Commissioner of Indian Affairs D. N. Cooley in his 1866 Annual Report noted that peace could best be maintained with tribes by “treaty arrangements” and he urged “the continuance of the policy which has met with such gratifying success during the present and last year. . . .”140
In his Annual Report for 1869, Commissioner Ely S. Parker, a Seneca Indian, rekindled the treaty debate. He believed that the treaty process with tribes should be closed, though he agreed that treaties already in force should be faithfully executed.141 On February 11, 1871, Representative William Armstrong (R., Pennsylvania) introduced the following joint resolution:
That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty; and all treaties or agreements hereafter made by and between them, or any of them, and the United States shall be subject to the approval of Congress: Provided, That nothing herein contained shall be considered to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.142 (emphasis mine)
This House resolution, except for the important underscored passage, which was later deleted, was attached as an amendment to the Interior Department’s 1872 appropriation bill. The deleted sentence was an acknowledgment that although the ratification process was changing, the essence of the treaty relationship itself was to be preserved. The amendment underwent intense bipartisan scrutiny but was eventually approved. Representative Sargent (R., California) proudly noted that the adoption of this measure had three beneficial results: (1) it would end what he called an “improvident system”; (2) it would save the federal government millions of dollars; and (3) it would give the House a voice in the process of negotiations with tribes.143
Although the substance of treatymaking continued in the form of agreements, this transformation in diplomatic relations presaged major problems for tribes and the tribal-federal relationship. Commissioner Francis A. Walker in his 1872 Indian Affairs Annual Report posed several interesting questions: What of tribal rights to lands which not been covered by treaty? What about tribes who had not yet been treated with, but who had the same political standing as treated tribes? How was the federal government legally going to secure title to tribal lands it desired?144
The answer, of course, was negotiated agreements. Although negotiations continued, however, the 1871 amendment represented a novel and dangerous way of perceiving the political relationship between tribes and the federal government. And although Congress continued to authorize commissions to negotiate agreements, it could, when it so desired, simply enact statutes which did not require tribal consent.145
This grave modification in the political relations between tribes and the federal government created a “feeling of betrayal among the Indians and vested dictatorial powers in the Indian agents, who were no longer seen as advocates for the tribes but as antagonists who sought to force immediate change and destroy tribal customs and practices.”146
The Cherokee Tobacco
THE GENESIS OF REPUDIATION BY THE MASK OF “IMPLIED REPEAL”
Before moving into an analysis of this case, it is important to consider the prominent role the Cherokee Nation played in the Court’s development of legal principles and legal masks which both enervated and devastated tribal sovereignty. The two most famous cases, of course, are Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832). The Cherokee Tobacco, while not directly involving the Cherokee Nation as a party, originated in their territory, and Swayne’s opinion had clear ramifications on the Cherokee Nation’s status. The case actually involved two Cherokee individuals, but the legal principles emerging from the decision affected not only the Cherokee Nation but all other tribes with treaty rights. In Chapter 3 I will discuss yet another case involving the Cherokee Nation, Cherokee Nation v. Southern Kansas Railway (1890), a powerful case which further reduced the sovereign rights of the Cherokee Nation.
In the United States Reports, the volumes which contain the official versions of each Supreme Court decision, the case under discussion is entitled simply The Cherokee Tobacco. But in both the Lawyer’s Edition and the Supreme Court Report, which are privately published editions containing information not available in the official edition, the full title of the case does more than raise interest: Two Hundred and Seven Half-Pound Papers of Smoking Tobacco, etc.,147 Elias C. Boudinot et al., Claimant Plaintiffs in error v. United States. The “et cetera” amounts to what must have been a nearly complete inventory of the holdings of the defendant; and this intriguing title reveals the law’s priorities in elevating such items as tobacco, tobacco products, and other items of property over the human players.
While each of the post–Civil War policy developments discussed earlier was crucial in recasting tribal-federal political relations, in general, the two most pertinent shifts for a discussion of The Cherokee Tobacco were the Cherokee Treaty of 1866 and the treaty termination law of 1871. Article 10 of the Cherokee Treaty stated that Cherokee citizens had the right to sell any product or merchandise without having to pay “any tax thereon which is now or may be levied by the United States.”
Two years later, on July 20, 1868, Congress enacted a general revenue law. Section 107 of this law said that the internal revenue laws imposing taxes on liquor and tobacco products were to 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.” Justice Noah Swayne wrote the decision in this case for a deeply fractured Court (three justices concurred with Swayne, two dissented, and three did not participate). Swayne indicated the legal direction he was heading by noting at the outset of the opinion that the case involved “first, the question of the intention of Congress, and second, assuming the intention to exist, the question of its [Congress’s] 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”148 (emphasis mine). Swayne’s assumption of Congress’s intent, the crucial variable in the decision, yields one of the most problematic and ambiguous doctrines in Indian law—whether tribes, as preexisting and extraconstitutional entities, may be included or excluded under the scope of general laws enacted by Congress. The documentary evidence—including the preexisting
political status of tribes (a status not created by or subject to the United States Constitution), prior Supreme Court precedent, the treaty relationship, and the constitutional clauses acknowledging the distinctive status of tribal polities—clearly supports exclusion. Indian territories, in other words, were not regarded as included in congressional enactments unless the tribe had given its explicit consent and unless they were expressly included in the law. Out of The Cherokee Tobacco, however, would emerge a new interpretation—that general congressional acts do apply to tribes unless Congress explicitly excludes them. This so-called inclusion theory is only one of several bizarre rules that flowed from this case.
HISTORICAL BACKGROUND
The defendant, Elias C. Boudinot, was a mixed-blood Cherokee who, with his uncle, negotiated a business deal with tobacco-factory owners in Missouri and then moved the operation into Cherokee Nation territory because of its tax-exempt status. This case, although not argued or decided until after the treaty termination rider had already become law on March 3, 1871, actually originated early in 1870, well before the cessation of treatymaking. And while there is nothing to indicate that Swayne’s decision was directly correlated with the ending of treaties, one can speculate fairly securely that the legislative and judicial branches each had some awareness of what the other was doing on the subject. This is crucial to remember because as a result of this decision, and in conjunction with the treaty-ending law, tribes were rendered completely susceptible to federal congressional power.
MASKING WITHIN THE DECISION: THE OPINION
Swayne stated, “the only question argued in this court . . . is the effect to be given respectively to the 107th section of the act of 1868, and the 10th Article of the treaty of 1866, between the United States and the Cherokee Nation of Indians.”149 Swayne briskly summarized Boudinot’s and his attorney’s arguments and those of the U.S. attorneys and said, “considering the narrowness of the questions to be decided, . . . 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.”150 His cavalier attitude is surprising considering what was at stake: the power of the federal government to extinguish, by an intent implied by the Court, a section of a ratified treaty with the Cherokee Nation without the consent of the Cherokee people; the power of the government to tax tribal members who were not American citizens and who thus had no political representation in Congress; and the power of the United States to violate the self-imposed protective trust relationship it had established with the Cherokee people long before.
Selectively drawing from the precedents established in Cherokee Nation v. Georgia, U.S. v. Rogers, Johnson v. McIntosh, and Mackey v. Coxe, Swayne relied on the unsupported argument that tribes inhabited territory considered to be a “part of the United States” and that Congress had undeniable authority over such territory. These notions of tribal territorial incorporation and an ill-defined presumption that the United States was inherently superior to the Cherokee Nation (discussed fully within the Johnson decision) had become reified by this time. Thus, Swayne could comfortably say that “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.”151 Swayne declared, inaccurately, that there was an ample base of law which supported both propositions.152 In fact, both theories, geographical incorporation and congressional authority over tribes, are flatly contradicted by the Court’s rulings in Worcester, Mitchel, and Kansas Indians, and the resilient doctrine of tribal sovereignty.
In a passage similar to one enunciated in Rogers that has little to do with law and much to do with economics and reality, Swayne stated that the 1868 Revenue Act applied only to the sales of liquor and tobacco. This was considered by the Court to be essential because “nowhere would frauds to an enormous extent as to these articles be more likely to be perpetrated if this proposition were withdrawn. Crowds, it is believed, would be lured thither by the prospect of illicit gain.”153 Swayne, like Taney, had manufactured a fictitious scenario of potentially immoral individuals who would be tempted to take advantage of the tax break afforded the Boudinot smokeshop by the 1866 treaty provision. One scholar has suggested this as a possible scenario:
Although it is not a matter of “official” record, one cannot ignore the probable attitude of U.S. government personnel toward non-payment of Federal taxes by recently surrendered enemies, taxes which weighed heavily on Union manufacturers in New York, Louisville, and St. Louis.154 While westering whites were invading Indian preserves in defiance of treaty provisions, the Cherokee tobacco factories were invading adjacent commercial markets to the east under conditions which probably would be characterized today as “unfair trade practices.” Had this continued, the laws of supply and demand could, in time, have forced a concentration of the nation’s tobacco manufacturing industry within the borders of Indian Territory as a means of escaping Federal excises.155
Plausible as this scenario may be, it had nothing to do with the treaty rights guaranteed to the Cherokee by the federal government. Moreover, on what legitimate basis does the Supreme Court act when it interferes with or stifles the internal affairs of tribal nations without tribal consent in the form of some type of contractual agreement? Reading in a congressional intent that was nowhere evident in any of the accompanying political or legal documents, Swayne said:
This consideration [of “illicit gain”] 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 to 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. 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 the courts to execute it. 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 pre-existing conviction.156 (emphasis mine)
Swayne was using semantics to cover his own policy interjection. Simply stated, had Congress meant to include Indian Territory in the Indian Revenue law, an inclusion that would have violated the 1866 treaty, it would have said so. Congress chose not to. Swayne and his colleagues, however, decided to do what Congress had refused to do. Furthermore, because tribes are not an integral part of the federal constitutional framework, as their treaty rights attest, the basis that Swayne assumed is that Congress meant to include them barring a fundamental change in either the Constitution (to incorporate tribes) or in the mutually agreed-upon 1866 treaty provision which guarantees the right of the tribal members to sell any product or merchandise “without any taxing restraint.”
While there was no evidence that Congress in enacting the 1868 revenue law intended to abrogate article 10 of the 1866 treaty, Justice Swayne had devised a scenario in which the treaty provision and the municipal law were placed in direct conflict. “Undoubtedly,” said Swayne, “one or the other must yield. The repugnancy is clear and they cannot stand together.”157 This is a typical and extremely effective judicial ploy wherein the Court creates a hypothesized chain of events in which two statutes, or in this case, a statute and a treaty provision, are in alleged conflict even though the two laws had separate origins and separate purposes. Having crafted such a semantic impasse, a justice is then able to “choose” the law that will meet the end goals of the Court. In this case, a compact between two sovereign nations was arbitrarily pitted against a mere domestic revenue law. The compact lost.
Swayne began his opinion with the obligatory statement that the Constitution, the laws of the United States, and treaties are the supreme law of the land. And after correctly noting
that a treaty was incapable of altering the federal Constitution, he said that the Constitution had not settled the issue of what happens when treaties and congressional enactments were “in conflict.” Having abstractly set up the parameters of the discussion in this way, Swayne then said: “A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty. 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 requiring their faithful observance, cannot be more obligatory.”158
Over time, this section has been shortened to the following rule, popularly known as the “last-in-time” rule. In effect, whichever is latest in time, be it a treaty or a statute, stands. This was and remains a catastrophic precedent for tribes because the treaty termination law enacted two months earlier had effectively frozen tribes in political limbo and left them completely at the mercy of Congress. Theoretically and practically, any law enacted after March 3, 1871, could override any prior treaty. Tribal nations, moreover, were no longer recognized as polities capable of treating with the United States, yet they remained separate if wholly unequal sovereigns, outside the pale of the American Constitution. Swayne’s effort to equate Indian treaties with foreign-nation treaties was a smoke screen, for obviously, foreign nations may continue to negotiate treaties with the United States and are not subject to federal domestic legislation.
American Indian Sovereignty and the U.S. Supreme Court Page 9