acre; if it should have been found that the individual owners of land in that State had it in their power to offer terms so much more attractive to 1 purchasers as to put an entire stop to the sale of the public lands, Congress 1 could not reduce the terms without a violation of the compact with Ohio. But this thing has been done, and it is not understood that Ohio has com plained. And if Congress had the power to reduce the price, and thus to diminish the proceeds of sales by nearly one-half, I cannot see what reason any other modification, for which the public good called, should be charged as a breach of the compact, and made a ground of complaint.

The great object in view was the sale of the public lands. The interests of the United States and Ohio coincided in the advancement of this object. Ohio was interested not only in the three per cent., but in the general fund to be raised by these sales. As a member of the Union, she had a voice in devising the means of promoting the sales. The supposition that the system of land sales which was in force at the time of the compact was to remain inflexible, and to yield to no change in the condition of the country, and to no light which future experience might throw upon the subject, does not appear to me to be rational. It would have been at war with the interest of both the parties to the compact, aud, therefore, cannot be believed to have been within their contemplation. It seems to me that it must have been expected on both sides that this power of altering the terms of sale should remain in Congress, and that, in exercising it, they should be gov erned by the fluctuating circumstances of the country, and guided by the lights of experience. On this principle Congress has acted: relieving the purchasers, from time to time, of previous burdens which might have impeded the sales; altering the terms of payment; and, finally, reducing the minimum price from two dollars to one dollar and twenty-five cents. And in all these alterations Ohio has had a voice. It was in the course of this process of holding out stronger inducements to purchasers, and thereby accelerating the sales, that the act of 1804 was passed, which relieved the purchasers from the expenses of surveying; so that these expenses, which, at the time of the compact, did not constitute a part of the individual expenses of the sales of public lands, did, thereafter, constitute a part of such individual expenses, and, therefore, by the terms of the compact, were to be deducted before the three per cent. was to be calculated and paid to Ohio. This, I presume, is the view of the subject on which the Secretary of the Treasury founded his opinion; and his opinion is cer tainly correct, if the parties be supposed to have contracted with reference to a continuing power in Congress to control, alter, and modify the terms of sale at pleasure; and, from the nature of the case, it appears to me that they must have contracted with reference to this continuing power in Congress. The report relies on the contemporaneous construction of the contract, and the constant practice of the Treasury Department, from the date of the compact down to January, 1823, to allow the three per cent., without deducting the expenses of surveying. Admitting the report to be accurate as to matter of fact, the argument, although entitled to great respect and consideration, is not, in my opinion, conclusive. With regard to the contemporaneous construction, the expenses of sur veying at the time of the compact formed no charge on the fund; and the forms of settlement adopted at that point of time legally and properly excluded those expenses from the estimate of the three per cent.: and the forms of settlement having been then adopted, and the attention of the

head of the department not having been particularly called to the change which had been introduced by the incidental provision of the act of 1804, it is very reasonable to believe that the accounting officers continued to pursue the old forms, because they found them in use, without adverting, themselves, to the propriety of a new deduction under the act of 1804. Thus, the practice which had commenced rightfully, might, and probably was, continued through mere inadvertence, and from that mechanical attention to forms which is so naturally to be expected in subordinate officers. But the question has now become a question of right; and in order to settle it, we must go back to the compact, and construe that with reference to the intention of the parties.

The compact stipulates for three per cent. on the net proceeds of the future sales of the public lands, after deducting all expenses incidental to the same. There is nothing in the terms of the compact which limits its operation to the existing regulations for the sale of the public lands-nothing in those terms which indicates an intention that those regulations should remain unchanged. The power of Congress over the future sales is entirely untouched by the terms of the compact. This compact, like all others, is to be construed in reference to the subject-matter and the nature of the case on which it is to operate; and, construing it in this way, the decision of the Secretary of the Treasury appears to me to be correct. If, however, you should have any doubt on the subject, I would submit it whether the respect which is due to the legislature of Ohio would not render it proper to report the case to Congress, in order that, if they should differ in opinion with the Secretary of the Treasury, they may pass a short explanatory act, giving their construction of the act of 1804.

I have the honor to remain, sir, very respectfully, your obedient servant, WM. WIRT. The PRESIDEnt of the UNITED STATES.

RIGHT OF THE CHEROKEES TO IMPOSE TAXES ON TRADERS.

The Cherokee nation of Indians have not the right to impose taxes on persons trading among them under the authority of the United States.

The history and condition of the Indians, the relations which the United States bear towards them, and the treaties which subsist between them and our government, do not permit the power of taxation to be considered as one between equal sovereigns.

Trade with the Cherokees has been provided for by treaty stipulations, giving to Congress the sole and exclusive right of regulating trade with them and managing their affairs as shall be deemed proper. The right thus conferred on the United States is sole and exclusive, wherefore neither the Cherokees nor any other nation had the right thereafter to touch the subject which was thus solely and exclusively given to the United States.

OFFICE OF THE ATTORNEY GENERAL, April 2, 1824. SIR: The question on which you request my opinion is, whether the Cherokee nation of Indians have a right to impose a tax on persons trading among them under the authority of the United States?

If the Cherokee nation is to be considered as an independent sovereign nation, and this question is to be answered by an appeal to the natural law of nations, there can be no doubt of their right to pass what laws they please, and to enforce whatsoever laws they may choose to pass within the limits of their proper sovereignty. But it appears to me that it would be

fallacious to view the subject in this light. The history and condition of those people, the relations which we have borne and still bear towards them. and the treaties which subsist between them and the United States, will not permit us to regard the question as one between equal sovereigns, to be decided by the laws of nature as applied to nations. Whatsoever philosophy or philanthropy might, in the abstract, dictate upon this subject, we are constrained to look at things as they are, and to decide this question upon narrower grounds. Still, however, it is not to be decided by our arbitrary pleasure. The time has passed away in which it would be tolerated to treat these people as we please, because we are Christians and they are heathens. If the tax is to be resisted, we must find some solid ground for that resistance, which law and reason will support, and which we can justify both towards God and man. If, by the treaties into which they have entered with us, they have debarred themselves from imposing this tax, they cannot justly complain, if we insist on the fulfilment of these treaties, and the withdrawal of the tax as far as it shall be found in conflict with their own stipulations. The only reason for which I have alluded to their polit ical condition, and their past relations towards us, is, because I think that these considerations enter properly into the construction of the treaties which they have from time to time made with us.

The first treaty was that of November 28, 1785. At that time the nation was in the first stage of society-the hunter state; and, consequently, gov ernment, laws, and taxes were wholly unknown among them. The ninth article of that treaty stipulates that, for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper." The tenth article provides that, "until the pleasure of Congress be known respect ing the ninth article, all traders, citizens of the United States, shall have liberty to go to any of the tribes or towns of the Cherokees to trade with them; and they shall be protected in their persons and property, and kindly treated." Again: by the sixth article of the treaty of the 2d July, 1791, "It is agreed on the part of the Cherokees, that the United States shall have the sole and exclusive right of regulating their trade." Again: by the second article of the treaty of 2d October, 1798, it is stipulated that "the treaties subsisting between the present contracting parties are acknowledged to be of full and operative force, together with the construction and usage under their respective articies, and so to continue." The treaties of the 25th October, 1805, and of 8th July, 1817, recognise those stipulations, and continue them in full force. I observe that, among the documents which you handed to me, there is a letter addressed to you by the delegation from the Cherokee nation now at Washington, bearing date on the 25th of February last, in which it is acknowledged that, by the treaties of 1785 and 1791, the Cherokees placed themselves under the protection of the United States, and of no other sovereign whatsoever, and gave to the United States the right of regulating trade with them. But in all this, they say, they cannot see that the Cherokees conceded their own right of making municipal regulations for themselves; and they add, that it can not for a moment be believed that such were the intentions of the parties when those treaties were entered into. But it is to be remembered that, when those treaties were entered into, there were no such things as muni

cipal regulations in the Cherokee nation; and the construction which 'hose treaties are to bear in relation to the periods of 1785 and 1791, is the construction which they are to bear now. For the stipulations of treaties, so long as they remain unaltered, cannot fluctuate with the changing condition of the parties. They cannot mean one thing in one year, and another thing in another year. A change in the condition of the parties may be a very good reason for changing the stipulations themselves; but not for varying the construction of stipulations of a fixed character. The inqui ry, then, is, what is the proper construction of these stipulations in reference to the condition of the Cherokees at the time they were entered into? because the construction which was the proper one then, is the

still.

proper one

Now the stipulation of the treaty of 1785 is, that "the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper." The right thus conferred on the United States is sole and exclusive; consequently, neither the Cherokees nor any other nation had the right thereafter to touch the subject which was thus solely and exclusively given to the United States. What was the right thus solely and exclusively given to the United States? The right of regulating the trade with the Indians. What does this mean? The right of regulating the conduct of the citizens of the United States in carrying on this trade? This cannot be the meaning, because this right the United States had before, and it required no treaty to give it to them. The treaty meant to give a right which did not exist before; and this could be only the right to prescribe the whole system of regulations, on both sides, under which the trade should be carried on. The Supreme Court of the United States has lately decided that a power to regulate commerce between the several States is an exclusive power, because commerce is a unit; and the power to regulate it is, from the force of the word "regulate" acting on such a subject, from the nature of the case, and the necessity of the thing, an exclusive power; and that such being the compact between the States, as expressed in the constitution of the United States, no State has a right, by any regulation of its own, to impede, clog, or in any manner to encumber, the action of any regulation ordained by Congress. Now, the constitution of the United States is no more a compact between the States than the treaties which we are considering are compacts between the Cherokee nation and the United States; the commerce between the States is no more a unit than the trade with the Indians is a unit. And with regard to the exclusiveness of the power to regulate it, the case which we are considering is far stronger; because, in the former case, that exclusiveness was matter of inference from the nature of the subject, and the force of the word "regulate;" whereas, here, the sole and exclusive power to regulate the trade is given to the United States in express terms.

With regard to the surprise which seems to be expressed at a construction which should impute to the Cherokees the intention of giving up the whole subject to the United States, and relinquishing this national right of making municipal regulations of their own in relation to this trade, it proceeds from a forgetfulness of the political condition of the Cherokees at the period of these treaties. What can more strongly mark this condition than the stipulation in the same sentence, by which the Cherokees give to the United States the sole and exclusive right of "managing all their

affairs in such manner as they think proper?" All whose affairs? Surely not those of the United States, for this they had before: it would have been preposterous in the treaty to affect to give a right which already existed in full force; it can mean only the sole and exclusive right of managing all the affairs of the Cherokees in such manner as the United States shall think proper. And after this, I should think that all surprise might cease at their having given to Congress the sole and exclusive right of regulating the trade with the Indians under the construction which I have given to it.

If there could be any doubt whether the treaty of 1785 intended to give to Congress the power of making regulations which should go beyond the control of our own citizens and bind the Indians, it would seem to be removed by the sixth article of the treaty of 1791, by which "it is agreed on the part of the Cherokees that the United States shall have the sole and exclusive right of regulating their trade." Whose trade? Not the trade of the United States certainly; for it would be absurd to suppose that the Cherokees should give to the United States the sole and exclusive right of regulating the trade of the United States. It can mean only the trade of the Cherokees. So that by this article the Cherokees place the regulation of their own trade solely and exclusively in the hands of Congress-a stipulation not at all surprising, considering the geographical position, as well as the political state and condition of the Indians when these treaties were made.

In the exercise of this power, Congress has, from time to time, gone on to regulate this trade by legislative enactments. From the year 1786 down to the present time, there have been continually subsisting regulations, under which citizens of the United States shall be licensed to trade with the Indians. The purport of the license is, that the party who bears it shall have liberty to trade with the Indians under the restrictions imposed by the laws of the United States. This is a regulation of trade strictly within the terms of the treaty, and it proceeds from the body to which the treaty concedes the sole and exclusive right to regulate this trade. The question is, whether a right on the part of the Cherokee nation to tax the traders thus licensed on the part of the United States be compatible with that sole and exclusive right to regulate the trade from which the authority of the license proceeds? The imposition of the tax on the traders is the imposition of a new condition, on which alone the Chero kees say that this trade shall be carried on. It is a new regulation of the trade instituted by them, while the sole and exclusive power to regulate it is acknowledged by the treaties to be in the Congress of the United States. Is this sole and exclusive power in Congress consistent with the existence of a like power in a separate and independent sovereign, directed by a different judgment and a different will? I apprehend not. Again: if the Cherokee nation have the right to tax at all, the quantum of the tax rests in their own discretion. If they have a right to impose a tax of $50, they have the same right to impose a tax of $500, $5,000, or $50,000: If they may tax for revenue, they may tax for exclusion. If they have a right to superadd, at pleasure, a new burden on a regulation of trade ordained by Congress, they may impose such a burden as to defeat the regulation altogether. In the case of McCullogh against the State of Maryland, the Supreme Court of the United States decided, that although the State of Maryland was a sovereign and independent State, and conse