E. 40 chains between line 224 & 225 to place of beginning, in section 1 or 2.

A tract of land described as follows: Beginning at S. E. Cor. of 225 thence due S. 20 chains set post thence due W. 40 chains set post thence due N. 20 chains to S. W. Cor. 225 thence due E. 40 chains on line between 225 & 226 to point of beginning, in section 1 or 2.

A tract of land described as follows: Beginning on boundary line at N. E. Cor. of 223 thence on boundary line due E. 20 chains set post thence due S. 40 chains set post thence due W. 20 chains to S. E. Cor. of 224 thence due N. 40 chains to place of beginning, in section 1 or 2.

Township 40 North, Range 29 East.

A tract of land described as follows: Set post on International boundary line being N. E. Cor. of 120 thence due S. 20 chains to S. E. Cor. and set post "I. A." thence due W. 40 chains and set post being S. W. Cor. of 120 thence due N. 20 chains to boundary line set post "I. A." being N. W. Cor. thence on boundary line 40 chains to point of beginning, in section 5 or 6.

A tract of land described as follows: Beginning at SE of 120 thence due S. 20 chains to S. E. Cor. and set post "I. A." thence W. 40 chains to S. W. Cor. and set post thence due N. 20 chains to N. W. Cor. thence due East 40 chains to point of beginning, Sec. 5 or 6.

NE and S. of Sec. 32; SSE and SSW of Sec. 33.

Township 40 North, Range 30 East.

SE

E NW SW of Sec. 3; W WSW of Sec. 15; NE and all that part of the S of Sof N of NE lying south and east of Myers Creek, all that part of SNE lying east of Myers Creek, and all that part of the NW SE lying east of Myers Creek and all that part of the SSE lying east of Myers Creek in Sec. 16; W of SW of NE, W of NW of SE 1, E SW 4, and all that part of WSW lying east of Myers Creek except one acre in Reno Quartz claim of Sec. 21; SSE of Sec. 25; S of W of NE of NW, S. of Eof NW of NW : S. of E of W of NW of NW; E of N of SW of NW 1. SE of SW of NW and Nof NW of SE of NW of Sec. 28; WSE of Sec. 29; S + NW and SW of Sec. 30; ENE of SE of Sec. 32; SNE of NW 1, SE of NW and NE SW of Sec. 33.

NW, W

SE and WNE of W of W

Township 40 North, Range 31 East.

SNE, W SE and NE SW of Sec. 25.

Township 40 North, Range 32 East.

E SE NE and E of Eof SE of Sec. 9; SW 1 NE 1, S } + NW, W SE and SW of Sec. 10; W of W of NE, W of NE of NW 1, SE NW 1, NE SW and SW SW and all that part of WNW lying east of Kettle River, and all that part of NE NW lying east of Kettle River of Sec. 15; the E NE NE and all that part of SE SE lying east of Kettle River in Sec. 16; lot 5 and all that part of the NW SW 1. W of NW of NE of SW, SW of NE of SW 1, NE of SW of SW 4, and SE SW lying east of Kettle River in Sec. 22, Lot 1, W of SE of NW of SW, all of NE of NW of NW, SW1 SW 1, and SW NW of SWlying east of Kettle River in Sec. 26; E of NW, E SW, WSE 1, SE 1 SE ‡ and lots 2, 3, 4, and 5 of Sec. 27; lot 3 of Sec. 30; E NE 1, NW NE, E of SW of NE, E of NW of SE and ESE of Sec. 34; W of NW of NE of NW 1, W of SE of SW, lots 1, 2, 3 and 4 and all that part of SW SW lying east of Kettle River.

Township 40 North, Range 33 East.

SE SE of Sec. 12; NE NE †, W† NE †, NE † NW †, N † SE and SE SE of Sec. 13.

Township 40 North, Range 34 East.

SNE, SE NW and lots 1, 2 and 3 of Sec. 1; E SW and lots 3, 6, 7, 8 and 11 of Sec. 3; SW 1 NE 1, S NW 1, NSW and lots 1, 2, 3, 4, 5 and 6 of Sec. 4; SE NE ‡ and NE SE of Sec. 5; SW SW of Sec. 7; E SE of Sec 8; E NE 4, NSE and lots 1, 4 and 6 of Sec. 9; NNW 1, SW and NW SW of Sec. 10; SW SW of Sec. 13; SNE, SE and SE SW of Sec. 14; NW NE and NE NW of Sec. 15; ENE of Sec. 17; NW ł

NW

NW of Sec. 18; SW NE †, SE † NW †, of Sec. 19; NNE, Sec. 23 NW

Township 40 North, Range 35 East.

NE

NW SE ‡ and NE SW and lots 1 and 2 of Sec. 30.

NSE of NW and lots 3, 4 and N of lot 5 of Sec. 6.

Township 40 North, Range 39 East.

SWSE, SE SW of Sec. 25; SE NE and lot 1 of Sec. 35; NENE, SW NE 1, NW and lots 1, 2, 3 and 4 of Sec. 36

Township 40 North, Range 40 East

SW SE of Sec. 11; NW NE of, E SE 1 of Sec. 19; SNE 1, S NW and S of Sec. 20; SNE 1, SE 1 NW 1, NW † ŠE †, NSW 1, SW SW and lot 1 of Sec. 21; lots 2 and 3 of Sec. 22. lot 2 of Sec. 28; NE NW and lots 1 and 2 of Sec. 29; E NE †, SW NE, E NW and lot 1 of Sec. 30; lots 3 and 4 of Sec. 31.

JUDICIAL OPINIONS.

COLLECTION OF TAXES, CHEROKEE NATION.

[Opinion of Judge Joseph A. Gill, U. S. court, northern district of Indian Territory.]

W. C. ROGERS, PLAINTIFF,

V.

FRANK CHURCHILL, J. GEORGE WRIGHT, AND J. BLAIR SHOENFELT,

defendants.

STATEMENT OF CASE.

This is a complaint in equity in which the plaintiff, W. C. Rogers, seeks to enjoin the defendants, Frank C. Churchill, J. George Wright, and J. Blair Shoenfelt, from collecting the tax claimed to be due the Cherokee Nation from the plaintiff as a merchant.

The facts in the case, as shown by the pleadings and the evidence, briefly stated, are substantially as follows: The plaintiff, W. C. Rogers, is a Cherokee citizen by birth, and is a merchant and trader in the Cherokee Nation, having a business at three different points therein, namely, one at Talala, carrying a general stock of merchandise of about $20,000; one at Vera, and one at Skiatook, each carrying a stock of about $8,000. Said stocks of merchandise consist of fruits, groceries, dry goods, clothing, hats, caps, etc.

That the defendant Frank C. Churchill is an employee of the Interior Department of the United States. Defendant J. George Wright is the duly appointed, qualified, and acting United States Indian inspector for the Indian Territory, and defendant J. Blair Shoenfelt is the duly appointed, qualified, and acting Indian agent for the Union Agency in the Indian Territory, and that, as such officers and employees, they perform such acts and services as may be directed by the said Department of the Interior and the laws of the United States.

The tax in controversy arises under article 2, Trade and intercourse, and is found in the Compiled Laws of the Cherokee Nation, 1892, sections 582 to 589, inclusive.

The evidence taken shows that the defendants, acting as officers and employees of the United States, served notice upon the plaintiff, W. C. Rogers, that he would be required to pay the tax due the Cherokee Nation to them, in accordance with certain rules and regulations adopted by the Secretary of the Interior in reference to the collection of taxes due the Cherokee Nation, and the plaintiff was repeatedly notified by said officers to pay said tax; that plaintiff failed to pay any attention to these notices, and failed to report, pay, or tender any part of the tax.

That on or about the 1st day of June, 1900, the defendants, acting in their official capacity, and acting through the Indian police, closed up the store of the plaintiff at Talala, and held possession of the same for a period of five days, during which time the plaintiff was unable to trade or do business therein.

It is also in evidence that the Secretary of the Interior, acting under the general provisions of the act of Congress approved June 28, 1898, commonly known as the "Curtis bill," under the head of Royalties, rents, etc.," in paragraph 13, provided:

"That the said United States Indian agent shall receive and receipt for all royalties paid into his hands, when accompanied by the sworn statement, as provided in the preceding regulation, but not otherwise, and it shall also be his duty to collect, under the supervision and direction of the United States Indian inspector for the Indian Territory, all rents, permits, revenues, and taxes, of whatsoever kind or nature, that may be due and payable to any Indian tribe or tribes to which these regulations may apply, as provided for by the laws of such tribe or tribes." And further provided in paragraph 14, as follows:

6266-00-36

561

"The rents and permits, taxes and revenues provided for by the foregoing regulation to be collected by the United States Indian agent shall be due and payable to him in lawful money of the United States, at the time when such rents, permits, taxes, and revenues would, under the laws of the particular nations, have been due and payable to the authorities of said nations had not the act of June 28, 1898, and especially section 16 thereof, been passed."

Upon the closing of said store the plaintiff brought his action to this court, for the purpose of restraining defendants, or any of them, or anyone acting under them, from interfering with or attempting to interfere with the possession of said stock of goods, and praying that this order be made perpetual. A temporary injunction issued in pursuance of said bill and prayer, and this case came on to be heard on the pleadings and evidence on July 23, 1900, with the understanding that the submission of the case chould be final as to this court.

OPINION.

The case at bar presents some very peculiar features, and the law applicable thereto is in an unsatisfactory condition. The matter, reduced from the lengthy argument and presentation on either side, resolves itself into two principal questions:

First. Is there a traders' tax authorized by law to be assessed against and collected from a Cherokee citizen doing a general merchandise business in the Cherokee Nation in the Indian Territory since the adoption of the Curtis Act on June 28, 1898?

Second. If such a tax is authorized and collectible, does the law authorize the Interior Department to collect it?

An examination of the Cherokee laws, article 2, entitled "Trade and intercourse," shows that such trade and intercourse and such law applied only to the Indian citizen, and the only penalty for the infraction of such law was punishment by a fine, or by a fine and imprisonment, as the same should be found by the Cherokee courts. No provisions were made in said article for the enforcement of the collection of the taxes other than by fine, or by fine and imprisonment, to be imposed in the Cherokee courts, and in those alone.

Section 28 of the Curtis bill abolished all the tribal courts in the Indian Territory, and prohibited any officers of said courts from performing any act theretofore authorized by any law in connection with said courts. If the said article 2 of the Cherokee laws is to stand at all, as being not annulled and a valid law, it is one which provides punishment for its infraction merely by a fine, or by a fine and imprisonment, and by this means alone, except that where a party fails to obtain a receipt for a tax and post it in his place of business, as provided by section 589 of said article, the sheriff of the district is to close his store, and report such offender, that he may be proceeded against criminally. A careful examination of said article does not reveal any method whereby the offenders' goods may be reached, or whereby any lien whatever is created or attaches to the goods, or whereby any punishment can be inflicted upon the offending party except in the Cherokee courts.

It is a rule well established that all statutes imposing taxes are to be followed strictly; that the manner of laying the tax, the time and manner of collection, and all the means pointed out toward effecting the object to be attained, namely, the collection of the tax, are to be followed with exactitude, and a failure to follow the law, either in the assessment or as to the means to be used to collect it, may, upon resistance, avoid the tax.

It may be safely stated, in a brief way, that the United States, by acts of Congress and treaties with the Cherokee, gave to the Cherokee the right to regulate the internal affairs of the Cherokee Nation. in respect to trade, as to its own citizens, and that acting under the treaties and statutes, the act above referred to as article 2, Trade and Intercourse, Compiled Laws of the Cherokee Nation, was in all respects legal and in conformity with the rights of the nation in reference to taxing its own citizens doing business within its boundaries. It may also be stated, without question, that the United States have the authority at any time, by statute, to alter and change the laws of the Cherokee nation: in fact, Congress has often exercised this right, although at times its power to do so has been questioned. It may also be safely stated that the Secretary of the Interior, and the Commissioner of Indian Affairs, and the President, by various acts of Congress, have been authorized to exercise at times a wide discretion in the control of Indian affairs, and this has at all times been exercised for the good of the Indians themselves; and where the Secretary of the Interior or the Commissioner of Indian Affairs are given, under a statute, discretion with reference to carrying out its provisions, they are the sole judges of the use or abuse of that discretion. But the Secretary of the