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Court case

The Cherokee Tobacco

A later act of Congress can override an earlier treaty, so federal excise taxes applied in Cherokee territory despite the 1866 treaty.

Citation
78 U.S. (11 Wall.) 616 (1871) [Justia prints (1870); December Term 1870]
Court
U.S. Supreme Court
Year
1871
Nations
Cherokee Nation
Treaty at issue
Treaty of 1866 (tax exemption)
Effect on land rights
eroded

What happened

Article 10 of the 1866 treaty between the United States and the Cherokee Nation said every Cherokee Indian and freed person in the Cherokee nation could sell products of the farm or merchandise and ship them to market "without restraint," paying only any tax the United States levied on goods sold outside the Indian territory.

Two years later, Congress passed the Internal Revenue Act of July 20, 1868. Its 107th section said the internal revenue laws taxing 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." The United States moved to condemn and forfeit tobacco and other property in the Cherokee Nation for violating the revenue laws. Elias C. Boudinot and his partner, who claimed the property, said the treaty exempted it from taxation.

The Supreme Court, in an opinion by Justice Swayne, held that the 1868 act applied in the Indian Territory in the Western District of Arkansas, occupied by the Cherokee Nation, notwithstanding the earlier treaty. The reporter's summary of the case states the rule plainly: "An act of Congress may supersede a prior treaty."

The Court later relied on this rule. In Lone Wolf v. Hitchcock (1903), it cited The Cherokee Tobacco and wrote that "the power exists to abrogate the provisions of an Indian treaty."

Good to know. The case was decided in the Court's December 1870 term, so it is cited with both 1870 and 1871 dates.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error

What the sources say, and how this was checked

Well supported by the sources below.

  1. An act of Congress may supersede a prior treaty.The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871) (U.S. Reports, Library of Congress)
  2. to ship and drive the same to market without restraintThe Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871) (U.S. Reports, Library of Congress)
  3. Elias C. Boudinot, for himself and his copartner, Stand Wattie, interposedThe Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871) (U.S. Reports, Library of Congress)
  4. The power exists to abrogate the provisions of an Indian treatyLone Wolf v. Hitchcock, 187 U.S. 553 (1903) (U.S. Reports, Library of Congress)

Research notes. The U.S. Reports page is headed December Term 1870, while the citation year in our data is 1871; the term and decision-date years differ, so the citation is not wrong. The quoted words 'produced anywhere' appear in the opinion without a space in places because of scanning errors. Lone Wolf's holding is described only as to its citation of this case.

Treaty or agreementShapes from the 1899 federal record: approximate, not legal boundaries.

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Doctrine applied 3

Concerns the instrument 1

Policy era 1

Nations named 1

Sources

  1. supreme.justia.com/cases/federal/us/78/616/legal text copy
The record’s fields
Holding
An 1868 act of Congress extending liquor and tobacco taxes to Cherokee territory overrode the treaty's exemption: a later act of Congress can supersede an earlier treaty.
Kind
Court case
Confidence
High

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