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Doctrine

last in time

A later federal statute prevails over an earlier inconsistent treaty, a last-in-time rule the Supreme Court applied to Native nations in The Cherokee Tobacco.

Definition
The rule that a later federal statute prevails over an earlier inconsistent treaty.

What happened

The Constitution makes treaties "the supreme law of the land" but does not say what happens when a treaty and a statute conflict. The Supreme Court answered in The Cherokee Tobacco (December Term 1870), a case about a federal tax on tobacco in the face of a prior treaty that exempted the Cherokee Nation's tobacco. The Court wrote: "A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty."

The Court then applied that rule to Native nations. The Court wrote of treaties with Indian nations that "They have no higher sanctity." In that case "the act of Congress must prevail as if the treaty were not an element to be considered." The Court said that if a wrong had been done, "the power of redress is with Congress, not with the judiciary."

The rule was restated for foreign treaties in Whitney v. Robertson (1888): if the two are inconsistent, "the one last in date will control the other," provided the treaty stipulation is self-executing. In Lone Wolf v. Hitchcock (1903), the Court allowed Congress to act on tribal land despite a treaty's requirement of consent by three fourths of adult male Indians.

Modern courts add a clear-statement requirement: United States v. Dion (1986) requires clear evidence that Congress considered the conflict and chose to abrogate the treaty.

Summarized with AI assistance from 5 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. A treaty may supersede a prior act of Congress, 8 and an act of Congress may supersede a prior treaty.The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, Cornell LII
  2. the act of Congress must prevail as if the treaty were not an element to be consideredThe Cherokee Tobacco, 78 U.S. (11 Wall.) 616, Cornell LII
  3. the one last in date will control the otherWhitney v. Robertson, 124 U.S. 190 (1888), Cornell LII
  4. clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the otherUnited States v. Dion, 476 U.S. 734 (1986), Cornell LII
  5. unless executed and signed by at least three fourths of all the adult male Indians occupying the sameLone Wolf v. Hitchcock, 187 U.S. 553 (1903), U.S. Reports

Research notes. The opinion's wording in The Cherokee Tobacco is the Court's own and is quoted, not endorsed. The term (December Term, 1870) comes from the case caption; the tax detail comes from the case summary on the page. The Court's phrase in the quoted passage includes a footnote number ('8') from the web text. Critiques by named scholars were not opened.

Who is doing the work

Native legal and land defense, nationally

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Connections

Applied in 1

Sources

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Kind
Doctrine
Confidence
Medium

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