Page:Federal Reporter, 1st Series, Volume 4.djvu/804

 790 FEDEBAIi REPORTER. �for their use, and so far as I know every one of these haa been kept withinthe jurisdiction of the United States, whether located in a territory or in a state, until such time as the Indian title has been extinguished or the tribe has forfeited or vol- untarily given up its rights. No case is known to me in ■which a tribe of Indians, with its reservation, has been turned over, without its consent, to the jurisdiction of any state. I am unable to believe that congress has in this instance,' with respect to a single tribe and à particular reservation, departed from this policy. �The case of The Cherokee Tobacco, 11 Wall. 616, presented, in the opinion of a majority of the judges who took part in the decision, an example of clear and necessary repugnancy between an act of Congress and a pre-existing Indian treaty, and therefore one in which the latter repealed the former by necessary implication. The act of Congress by express terms extended the internai revenue laws imposing taxes on distilled spirits, fermented liquors, tobacco, snuff, and cigars "to such articles produoed anywhere within the exterior boundaries of the United Steies, whether the same be within a collection district or not." �The previoua treaty with the Cherokee Indians exempted from taxation "any merehandise or manufactured products" of the Cherokees, except such taxes as might "be levied by the United States on the quantity sold outside of the Indian territory." It would aeem impossible to reconcile the con- flict between the two, since the words "any place within the exterior boundaries of the United States, " employed by con- gress in the statute, manifestly included the Indian territory. And yet the fact that Mr. Justice Bradley and Mr. Justice Davis dissented, serves to show the reluctance with which courts yield, even in clear cases, to the doctrine of repeals by implication. �Assuming, however, the soundness of the opinion of the majority in that case, (as we are of course bound tO do,) let us consider whether it applies to the case now in hand. To make the two cases parallel it would be necessary to show that congress, in the Colorado enabling act, expressly de- ����