gress, either by virtue of its power to regulate commerce, or by virtue of any other power conferred by the Constitution of the United States."

203.

Congress may have power to prevent the obstruction of any Navigable navigable stream which is a means of commerce between any two streams? or more States. Works v. Junction Railroad, 5 McLean, 526; Jolly v. Terre Haute Drawbridge Co. 6 Id. 237; Devoe v. Penrose Ferry Bridge Co. 3 Am. L. J. 79. But a State law granting the exclusive privilege of navigating a part of an unnavigable stream, which is wholly within the State, on condition of rendering such part navigable, is not repugnant to the Constitution. Veazie v. Moore, 14 How. 568. And see Wilson v. Blackbird Creek Marsh Co. 2 Pet. 251.

91. If commerce or traffic or intercourse be carried on with an With the InIndian tribe, or with a member of such tribe, it is subject to be dian tribes? regulated by Congress, although within the limits of a State. The Does the lopower is absolute, without reference to the locality of the tribe or tribe cause a cality of the the member of the tribe. United States v. Holliday, Wallace, difference? 418. This power is not claimed as to any other commerce originated and ended within the limits of a single State. Id. So long as the tribal relations exist, the Indians who are con. nected with their tribes and under the jurisdiction of an agent, are under the protection of the laws to regulate trade and intercourse with the Indians. Id. The States cannot control the subject. Id. Under the power to regulate commerce with the Indian tribes, Congress has power to prohibit all intercourse with them, except under a license. United States v. Cisna, 1 McLean, 254. So Congress has power to punish all crimes committed within the Indian country, which was a part of the Louisiana territory, dedicated to the Indians. The United States v. Rogers, 4 How. 567.

The United States has adopted the principle originally estab- What is the lished by European nations, namely, that the aboriginal tribes of rule as to Indians in North America are not regarded as the owners of the of soil? ownership territories which they respectively occupied. Their country was divided and parceled out, as if it had been vacant and unoccupied land. Id. If the propriety of exercising this power were now an open question, it would be one for the law-making and political department of the government, and not the judicial Id.

The Indian tribes residing within the territorial limits of the United States, are subject to their authority; and where the country occupied by them is not within the limits of any one of the States, Congress may by law, punish any offence committed there, no matter whether the offender be a white man or an Indian. Id.; The United States v. Rogers, 4 How. 567.

196.

The 25th section of the act of 30th June, 1834, extends the laws Intercourse of the United States over the Indian country, with a proviso that law? they shall not include punishment for crimes committed by one Indian against the person or property of another Indian." Id. This exception does not embrace the case of a white man who, at mature age, is adopted into an Indian tribe. He is not an "Indian" within the meaning of the law. Id. 4 St. 729; 1 Brightly's Dig, 430, § 75; 4 Op. 72, United States v. Rogers, 4 How. 567.

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 iminunity 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 am, 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.

What as to naturaliza

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.

[4.] To establish a uniform rule of naturalization; tion? and uniform laws on the subject of bankruptcies Bankruptcy? throughout the United States.

What is naturalization?

209.

66

93. NATURALIZATION.--In its popular, etymological, and legal 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. A naturalized citizen becomes a member of society, possessing all the rights of a native citizen, and standing What is ex- on the footing of a native. The power is to prescribe a uniform patriation? rule," and the exercise of this power exhausts it, so far as respects 274. 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,

exclusive?

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 120-123. the same time, took from the several States the power of naturali

Where alone"

of naturali

zation ?

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 Bates on Citizenship, 15. Citizenship cannot depend on color or caste. Id. 14-17. Alienage is the only disability to citizenship recognized in the Constitution. Id.

duties of a citizen?

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. One 95. 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