What means

commerce with the tribes?

The treaty with the Cherokees, concluded at New Echota, in 1835 allows the Indian council to make laws for their own people, or such persons as have connected themselves with them. But it also provides that such laws shall not be inconsistent with acts of Congress. The act of 1834, therefore, controls and explains the treaty. It results from these principles, that a plea, set up by a white man, alleging that he had been adopted by an Indian tribe, and was not subject to the jurisdiction of the circuit court of the United States, is not valid. Id.

Commerce with the Indian tribes, means commerce with the individuals composing those tribes. United States v. Holliday, 3 Wallace, 417.

The cotton grown in the Indian country and shipped to ports of the United States for sale, is not subject to the Internal revenue tax levied by the statutes of the 30th June, 1864, and the 13th July, 1866. The case of R. M. Jones. Attorney-General, H. Stanbery's opinion, of 24th July, 1867. The acts reviewed. Id.

All these provisions fortify the conclusion at which I have arrived, that cotton produced in the Choctaw nation does not come within their operation. A tax on cotton produced there or manufactured there, or sold there, cannot be levied, assessed or collected under the provisions of these acts. Nor is there any thing in these acts to forbid its removal or sale to any part of the United States. Being a production of the Indian country by express statutory enactment, it is not liable to any import or transit duty. There is no lien upon it for any tax at the place of production, nor is any permit for its removal necessary. "I am clearly satisfied that the omission in the various Internal revenue laws, to provide for the organization of collection districts over the Indian territory was not fortuitous or accidental, and that it was the settled purpose of Congress not to subject the persons or the productions of Indians existing under their regular tribal associations, to liability for any tax imposed by these acts.-If the provisions as to the specific article of cotton apply to Indian territory, I see no reason why all the other forms of tax provided for in these acts are not equally applicable to Indian territory. We must, consequently make them subject to taxation in reference to stamps, income, and descents in succession, as well as for other purposes. The intent of Congress not to include them in any sort of taxation, I think is clear enough from the language of the acts themselves. But all other considerations which apply to them, equally forbid this idea of Federal taxation. Their rights are defined by independent treaties. They are in a state of tutelage and protection under the United States. Laws in which they are not mentioned, are never understood to apply to them. Even when these Indians and their territory are situated within the bounds of a State of the Union, they are not subject to State taxation. In recent cases before the supreme court of the United States, at its December term, 1866, speaking of the condition of the Indian tribes under treaty with the United States, it used this language: The object of the treaty was to hedge the lands around with guards and restrictions, so as to preserve them for the permanent homes of the Indians. In order

+

to accomplish this object they must be relieved from every species of levy, sale, and forfeiture-from a levy and sale for taxes, as well as the ordinary judicial levy and sale.' The Kansas Indians, 5 Wall. 760, 761. Again the Courts say, in reference to the tribal association of the Shawnees, that they are a people distinct from others, capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union. If under the control of Congress, from necessity, there can be no divided authority.-If they have outlived many things they have not outlived the protection afforded by the Constitution, treaties, and laws of Congress.-It may be that they cannot exist much longer as a distinct people in the presence of the civilization of Kansas; but until they are clothed with the rights and bound to all the duties of citizens, they enjoy the privilege of total immunity from State taxation.' (Id. 755, 756). And again:-'As long as the United States recognizes their national character they are under the protection of the treaties and the laws of Congress, and their property is withdrawn from the operation of State laws.' (Id. 757.) Such is the well-established policy of the United States with regard to the total exemption of the Indian tribes from State taxation. The tenor of all the treaties shows that the idea of subjecting them to taxation by the General Government, was never entertained, and certainly hitherto it has never been attempted. I ain, therefore, clearly of opinion that the particular cotton in question was not liable to taxation under our Internal revenue laws, either while in the Indian country or in transit through any collection district of the United States, or in the collection district where it may have been found or may have been sold. Until the Indians have sold their lands, and removed from them in pursuance of the treaty stipulations, they are to be regarded as still in their ancient possessions, and are in under their original rights, and entitled to the undisturbed enjoyment of them. (Fellows v. Blacksmith, 19 How. 366.) The New York Indians, 5 Wall, 770."

In the argument of the case of R. M. Jones before the AttorneyGeneral, the Editor, who prosecuted the claim to have the tax, illegally collected, refunded, cited the following authorities: The State v. Ross, 7 Yerg. 74; United States v. Cisna, 1 McLean, 254; Cherokee Nation v. Georgia; Worcester v. Georgia; and Johnson v. McIntosh, cited elsewhere in this note. And the following cases to show that while Indians reside within the States as portions of tribes, they are not within State jurisdiction, as citizens subject to the burdens and benefits of State laws: Danforth v. Wear, 9 Wheat. 673; Lee v. Glover, 8 Cow. 189; Strong v. Waterman, 11 Paige, 807; Harmon v. Partier, 12 Sm. & Marsh. 425; Marsh v. Brooks, 8 How. 223; Fellows v. Lee, 3 Denio 628; Wall v. Williams, 8 Ala. 48 and 11 Ala. 826; Brashear v. Williamson, 10 Ala. 630; Parks v. Ross, 11 How. 427; Jones v. Laney, 2 Tex. 342. And as to the power of the United States over the Indian country, See United States v. Rogers, 4 Howard, 567.

What are the relations of

92. These various authorities settle the general propositions: the Indian 1. That the Indian tribes are dependent subordinate States, tribes?

81.

whose political relations with the United States are defined by treaties.

2. That commerce with the Indian tribes" is subject to the exclusive control of Congress, and it has only been regulated by treaties and intercourse laws.

3. That Indians are not embraced by acts of Congress, unless they be named therein. Opinion of Judge Lewis, Commissioner of Internal Revenue, 1863.

And see 9 Op. 27. The Indians owe no allegiance to the United States. They may make war upon them without incurring the guilt of treason. Op. of Judge Lewis, Commissioner of Internal Revenue. "Though he holds his lands within the limits of the United States, he is not politically within its limits, nor has it jurisdiction over him." Judge Lewis. The stamp tax does not apply to the Indian reservations, when sold by the tribe; nor does any part of the laws in relation to Internal Revenue. Id. The court follows the executive as to the recognition of the tribal relations. Id. Cites The Cherokee Nation v. Georgia, 5 Peters, 1, and Worcester v. Georgia, 6 Peters, 515.

What as to [4.] To establish a uniform rule of naturalization; and uniform laws on the subject of bankruptcies

naturaliza

tion ?

Bankruptcy? throughout the United States.

What is nat

209.

What is expatriation?

274.

93. NATURALIZATION.--In its popular, etymological, and legal uralization? sense, signifies the act of adopting a foreigner and clothing him with all the privileges of a native citizen or subject. 9 Op. 359; Coke Litt. 199a; 1 Bl. Com. 374; 2 Kent's Com. 64-67. These laws are based upon the acknowledged principle of expatriation. Bates 17, 18, 205, on Citizenship, 13. Citizenship, 13. A naturalized citizen becomes a member of society, possessing all the rights of a native citizen, and standing on the footing of a native. The power is to prescribe a "uniform rule," and the exercise of this power exhausts it, so far as respects the individual. The Constitution then takes him up, &c. Osborn v. Bank of United States, 9 Wh. 827. Expatriation includes not only emigration out of one's native country, but naturalization in 220, 221, 222. the country adopted as a future residence. 9 Op. 359; 8 Op. 125; Paschal's Annotated Digest, p. 920, note 1168, where the authorities are collected; Halleck's International Law 696; Rawle's Const. 95-101; Sergeant's Const. ch. 28, 30; 2 Kent's Com. 35, 42. The naturalized foreigner is protected against the conscript laws of his native sovereign. Ernest's Case, 9th Op. 357-363. The power to Is the power naturalize is exclusive in the Federal government. The Federalist, No. 32, 42; Chirac v. Chirac, 2 Wheat. 259, 269; Rawle's Const. 84-88; Houston v. Moore, 5 Wheat. 48, 49; Golden v. Prince, 3 Wash. C. C. R. 313, 332; 1 Kent's Com. 397.) Story's Const. § 1104; Thurlow v. Massachusetts, 5 How. 505; Smith v. Turner, 7 How. 556. The power must be exclusive or there could be no UNIFORM RULE. (Federalist, No. 32;) Story's Const. 1104. is the power While the Constitution gave to the citizens of each State the privileges and immunities of citizens in the several States, it, at the same time, took from the several States the power of naturali

exclusive?

Where alone "

of naturali

zation?

120-123.

90.

274.

209.

zation, and confined that power exclusively to the Federal government. The right of naturalization was, therefore, with one accord, surrendered by the States, and confined to the Federal government. Golden v. Prince, 3 Wash. c. c. 314. Naturalization is confined to persons born in foreign countries. Scott v. Sandford, 19 How. 417419. The Constitution has conferred on Congress the right to 220, 17, 18. establish uniform rules of naturalization, and this right is evidently exclusive. Id. 405. Negroes cannot be naturalized. Id. And Negroes. no law of a State, passed since the Constitution was adopted, can give any right of citizenship outside of its own territory. Id. The naturalization law of 1790, only extended the privilege "to aliens being free white persons." Id. Citizenship at that time was perfectly understood to be confined to the white race. Id. Congress might have authorized the naturalization of Indians, because they Indians. were aliens and foreigners. Id. 420. For the latest collection of the naturalization laws and notes thereon, see Paschal's Anno- 91, 92, 220. tated Digest, arts. 5392-5412; notes 1168-1172, and 148-150. A free white person born in this country, of foreign parents, is a citizen of the United States. (Lynch v. Clarke, 1 Sandford's Ch. R. 583.) 9 Op. 374. This is a universal principle unless changed by statute, as in our own statute to prevent the alienage of children born abroad. 10 St. 604. Bates on Citizenship, 13.

Allegiance on the one side, and protection on the other, con- Who are citstitute citizenship under the Constitution. Smith v. Moody, 26 izens? Inda. 305. Allegiance and protection constitute the sum of the 220-223. duties and rights of a "natural born citizen of the United States." What are the duties of a Bates on Citizenship, 15. Citizenship cannot depend on color or citizen? caste. Id. 14-17. Alienage is the only disability to citizenship recognized in the Constitution. Id.

One 95.

94. UNIFORM SYSTEM OF BANKRUPTCY.-BANKRUPT [banke- What is a rout]. Literally from Law French banke, Lat. bancus, a bench, bankrupt? table, or counter, and roupt or rout, Latin ruptus, broken. whose bench or counter (place of business) is broken up. In English law, a trader who secretes himself, or does certain other acts tending to defraud his creditors. 2 Bl. Com. 285, 471; Burrill's Law Dic. BANKRUPT; 4 Inst. Ch. 63; Story's Const. § 1112; Cooke's Bankrupt Laws, Intr. 1. It is derived from the Roman law. Idem. See Ogden v. Saunders, 12 Wheat. 264-270; Sturgis v. Crowninshield, 12 Wheat. 273, 275, 280, 306, 310, 314, 335, 369; and same case 4 Wheat. 122. By the American law, bankrupts and bankruptcies are not confined to traders. See Acts of April 4, 1800; December 19, 1803; Aug. 19, 1841; 2 March, 1867; James's Bankrupt Law, 1867, and notes; Taylor's Bankrupt Law; 2 Kent's Com. 390; 2 Story's Const. §§ 1111-1115; Stephens's Com. 180, 189. The leading features of a system established by law, as distinguished from ordinary law are, (1), the summary and immediate seizure of all the debtor's property (or the voluntary surrender of it); (2), the distribution of it among the creditors in general; and (3), the discharge of the debtor from future liability from debts then existing." Archbold's Law and P. of Bankruptcy (11th ed.: b. 2, pp. 139, 235-237; 2 Burr. 829. The American SYSTEM seems to have broken down the distinction between

What is

94.

BANKRUPTCY " and insolvency. Burrill's Law Dic., BANKRUPT. Sturgis v. Crowninshield, 4 Wheat. 122, 194, 198, 203; 2 Kent's Com. 321.

95. BANKRUPTCY.-The act, state, or condition of a bankrupt. bankruptcy? A status or condition fixed by legislative provision. (2 Bell's Com. 214.) A condition following upon the commission of certain acts defined by law. (2 Stephens's Com. 191, 192; Williamson v. Barrett, 13 How. 111. "A breaking up of the bank." Spencer v. Billing, 3 Camp. 312.) In a looser sense, the stopping and breaking up of business, because a man is insolvent, and utterly incapable of carrying it on. (Arnold v. Maynard, 2 Story's R. 354, 359. See Sturgis v. Crowninshield, 4 Wheat. 122, 195, 202). Burrill's Law Dic. BANKRUPTCY. The state of a man unable to pursue his business, and meet his engagements, in consequence of the derangement of his affairs. Crabbe's Rep. 456, 465. See Paschal's Annotated Digest, BANKRUPTCY, note 278, p. 141.

What right have the States to pass bank

96. The States have authority to pass bankrupt laws, provided they do not impair the obligation of contracts, and provided there be no act of Congress in force to establish a uniform system of bankrupt laws? ruptcy conflicting with such laws. Sturgis v. Crowninshield, 4 Wh. 132, 273, 275, 280, 306, 314, 335, 369; McMillan v. McNeil, Id. 209. But an act of a State legislature which discharges a debtor from all liability for debts contracted previous to his discharge, on his surrendering his property for the benefit of his creditors, is invalid, so far as it attempts to discharge, on the contracts with his creditors in other States than his residence. Farmers & Mechanics' Bank v. Smith, 6 Wh. 131. A mere insolvent law, however, is not within the prohibition. Ogden v. Saunders, 12 Wheat. 213, Mason v. Haile, Id. 370; Boyle v. Zacharie, 6 Pet. 348, 635; Beers v. Houghton, 8 Id. 329; Suydam v. Broadnax, 14 Id. 67; Cook v. Moffat, 5 How far do How. 295. The State bankrupt laws do not discharge debts constate bank tracted to citizens of other States, unless the contract be payable rupt laws discharge within the state of the bankrupt. Beers v. Rhea, 5 Tex. 354. This debts? opinion reviews the various decisions of the supreme court of the United States upon the subject, and concurs with their judgments, though it is urged that the opinions have been inconsistent. See Story's Conflict of Laws, § 338-423. The reason of this power is to prevent frauds where the parties or their property may be removed into different States. (The Federalist, No. 32.) Story's Const. § 1105.

Money.

The Bankrupt Law of 1841 was held to be constitutional. Klein's Case, 1 How. 277. The power of Congress is not an exclusive grant; it may, therefore, be exercised within constitutional limits by the States. Sturgis v. Crowninshield, 4 Wheat. 122. See James's Bankrupt Law, p. 8. This book gives the Bankrupt Law of 1867, annotated.

[5.] To coin money, regulate the value thereof, and of foreign coin; and fix the standard of weights and

measures.