Cherokee Tobacco case
The Cherokee Tobacco case refers to a legal dispute in which two Cherokee nationals, Elias Cornelius Boudinot and Stand Watie, contested an 1868 federal tax law that imposed taxes on their tobacco factory established under the 1866 Cherokee/US Treaty. The case, received by the court in 1870 and decided on May 1, 1871, hinged on the conflict between treaty rights and federal statutes. The 1866 treaty explicitly granted Cherokee citizens the right to sell products without being taxed by the U.S. government. However, following the enactment of a general revenue law, the Supreme Court, led by Justice Noah Swayne, introduced the "last-in-time" rule, determining that the most recent law—treaty or statute—would prevail. This ruling set a troubling precedent for Native American tribes, undermining their sovereignty and legal protections by allowing the federal government to abrogate treaty provisions without their consent. The decision effectively placed tribes in a political limbo, stripping them of rights while preventing future treaty negotiations, and raised significant concerns about the recognition and enforcement of existing treaties.
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Cherokee Tobacco case
In the Cherokee Tobacco suit, two Cherokee nationals, Elias Cornelius Boudinot and Stand Watie, challenged the imposition of an 1868 federal tax law on their tobacco factory, which had been established in the Cherokee nation under provisions of the Cherokee/US Treaty of 1866. (This case was received by the Court in 1870, argued in 1871, and decided May 1, 1871.)
Article 10 of the 1866 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 U.S.” Two years later, Congress enacted a general revenue law that imposed taxes on liquor and tobacco products “produced anywhere within the exterior boundaries of the U.S.” Justice Noah Swayne, speaking for a deeply fractured court (three justices concurred with Swayne, two dissented, and three did not participate), said that the case boiled down to which of the two laws—treaty or general domestic—was superior. Swayne developed what has been termed the “last-in-time” rule. In effect, whichever is latest in time, be it treaty or statute, stands.
This was a catastrophic precedent for tribes, since the treaty termination law, which had been attached as a rider to the March 3, 1871, Indian Appropriation Act, had closed the door on Indian treaties, although preexisting ratified treaties were still to be honored by the United States. This law effectively froze tribes in political limbo: They were no longer recognized as nations capable of making treaties with the federal government, yet they remained separate sovereignties outside the pale of the federal Constitution.
Tribes, as a result of this decision, were virtually bereft of legal or political protection. The federal government could thereafter explicitly or implicitly abrogate treaty provisions and tribes had little recourse, save returning to the corridors of the very Congress that had enacted the abrogating legislation.
This opinion ignored the historical and political reality that the Cherokee nation was a separate and autonomous political entity not subject to general domestic laws unless they had given their express consent; it denied the fact that Congress itself had not explicitly stated in the 1868 law that the revenue act applied to Indian Territory. Moreover, it disavowed the general principle that specific laws, such as treaties, which create special rights are not to be held “repealed by implication by any subsequent law couched in general terms.”
Bibliography
Calloway, Colin G. Pen and Ink Witchcraft: Treaties and Treaty Making in American Indian History. New York: Oxford UP, 2013. Print.
Parins, James W. Literacy and Intellectual Life in the Cherokee Nation, 1820–1906. Norman: U of Oklahoma P, 2013. Print.
Warde, Mary Jane. When the Wolf Came: The Civil War and the Indian Territory. Fayetteville: U of Arkansas P, 2013. Print.