United States v. Garrow

Decision Date01 March 1937
Docket NumberCustoms Appeal No. 4018.
Citation88 F.2d 318
PartiesUNITED STATES v. GARROW.
CourtU.S. Court of Customs and Patent Appeals (CCPA)

Joseph R. Jackson, Asst. Atty. Gen. (Joseph E. Weil, Sp. Atty., of New York City, of counsel), for the United States.

George J. Moore, of Malone, N. Y., for appellee.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

GRAHAM, Presiding Judge.

Annie Garrow, a full-blooded Indian woman of the Canadian St. Regis Tribe of Iroquois Indians, and residing in Canada near the international boundary line, entered the United States at the village of Hogansburg, N. Y., carrying 24 baskets made of black ash splints and dyed in colors. The collector at the port imposed a duty under paragraph 411 of section 1 of the Tariff Act of 1930 (19 U.S.C.A. § 1001, par. 411), which provides: "Par. 411. Porch and window blinds, baskets, bags, chair seats, curtains, shades, or screens, any of the foregoing wholly or in chief value of bamboo, wood, straw, papier-mâché, palm leaf, or compositions of wood, not specially provided for, 50 per centum ad valorem."

The appellee protested, claiming her said baskets to be free of duty under the provisions of article 3 of the Treaty of Amity, Commerce, and Navigation concluded between the United States and Great Britain on November 19, 1794, commonly known as the Jay Treaty (8 Stat. 116, 117). Treaties, Conventions, International Acts, Protocols and Agreements between the United States and Other Powers, 1776-1909, by Malloy, vol. 1, p. 590, Senate Document No. 357, 61st Congress, 2d Session.

The material portions of the protest filed are as follows:

"Sir: Notice of dissatisfaction is hereby given with, and protest is hereby made against your ascertainment, assessment, and liquidation of duties (including the legality of all orders and findings entering into the same), on the entry below named. The reasons for objection are as follows:

"Article 3 of the Treaty of Amity, Commerce, and Navigation, concluded between the United States and Great Britain on November 19, 1794, known as the Jay Treaty, reads in part as follows:

"`No duty of entry shall ever be levied by either party on peltries brought by land, or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever. But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians.'

"This provision was in substance carried into the various tariff acts enacted during the period from March 2, 1799, to August 28, 1894.

"The provision was repealed in the latter act of section 34 of the Act of July 24, 1897 30 Stat. 213, together with all the acts or parts of acts inconsistent with the repealing statute.

"The repeal of the provision, in effect, abrogated that portion of the treaty, above indicated, but as the repeal was inconsistent with the terms of the treaty, the legality of the repeal is questionable."

Upon a hearing before the United States Customs Court, in addition to the facts hereinbefore stated, it also appeared that at the time the international line was established between the Dominion of Canada and the United States of America, this line ran through the territory theretofore occupied by the St. Regis Tribe, with the result that a large number of this tribe reside on the American side and the rest of the tribe on the Canadian side, and that intercourse and communication between these portions of the tribe are continuous. It also appears that for some years the protestant, together with many others of her tribe, have been manufacturing baskets such as those in question here, for sale wherever they could be disposed of; that the protestant, on the occasion of the importation in question, was bringing the baskets across the line to dispose of them at the store of one McKinnon, who was in the business of purchasing such baskets from the Indians for resale; and that the amount received by the protestant for her baskets was $2, one-half of which was paid for duty imposed. It is also shown that the protestant was not carrying these baskets as a part of her household effects, but had manufactured the same, and was importing them, for sale in the United States. As the baskets were brought into the United States they were in two bundles, twelve in a bundle; the baskets in each bundle being fastened together by loops through their respective handles. Each basket was about six inches wide and about 8 inches high. As fastened together, they fitted into each other and made compact bundles which could be easily carried.

The United States Customs Court sustained the protest, holding that the case was controlled by McCandless v. United States, 25 F.(2d) 71, a decision of the Circuit Court of Appeals for the Third Circuit. The Government brings the matter here by appeal, and contends that the court below was in error for three specific reasons which are specified in the Government's brief as follows:

"(1) Article 3 of the Jay Treaty of 1794 was annulled by the War of 1812.

"(2) Alternatively, if article 3 of the Jay Treaty was not abrogated by the War of 1812, it is, nevertheless, in conflict with a subsequent statute. It is well settled that when a Treaty and a Statute are in conflict, that which is later in date prevails.

"(3) Assuming, for the sake of argument, that article 3 was not abrogated but is still in force and effect, the importation is not within the purview of the language of said article 3."

On the other hand, counsel for the appellee contends that article 3 of the Jay Treaty of 1794 is still in full force and effect, and that under this treaty the imported goods are free of duty. The claim is thus stated: "The appellee's claim is that article 3 of the Jay Treaty of 1794, at least insofar as it applies to bona fide Indians, is still in effect and the merchandise in question is free from duty."

It will be necessary to examine the provisions of the involved treaty, and the legislation and history of the times since the ratification of the Jay Treaty, in order to come to a proper conclusion as to the claims of the appellee to exemption from duty.

The Jay Treaty of 1794, in article 3 thereof, contained the following provisions:

"It is agreed that it shall at all times be free to his Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America (the country within the limits of the Hudson's bay Company only excepted) and to navigate all the lakes, rivers and waters thereof, and freely to carry on trade and commerce with each other. * * * "No duty of entry shall ever be levied by either party on peltries brought by land, or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever. But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians."

It will be observed that the quoted provisions are self-executing and granted to the Indians named therein the right to bring their own proper goods and effects of whatever nature into the United States immediately upon the ratification of the treaty, without legislation. However, irrespective of this, the Congress of the United States, in an act to regulate the collection of duties on imports and tonnage, enacted March 2, 1799 (1 Stat. 627), provided in section 105 thereof (page 702) as follows: "Sec. 105. And be it further enacted, That no duty shall be levied or collected on the importation of peltries brought into the territories of the United States, nor on the proper goods and effects of whatever nature, of Indians passing, or repassing the boundary line aforesaid, unless the same be goods in bales or other large packages unusual among Indians, which shall not be considered as goods belonging bona fide to Indians, nor be entitled to the exemption from duty aforesaid."

This was the situation of affairs at the time of the declaration of war between the United States and Great Britain on June 18, 1812. This war was concluded by the Treaty of Peace made at Ghent on December 24, 1814, and ratified February 17, 1815 (8 Stat. 218). See Malloy's Treaties, Conventions, etc., supra, pp. 612-620. Article 9 of said treaty (8 Stat. 222) contained the following provision, among others: "The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities."

Following the Treaty of Ghent, the Congress, on various occasions, enacted legislation dealing with duties on imports into the United States. A citation of some of these acts is given in a marginal note.*

These various acts were not express repeals of the preceding acts, but usually were amendatory thereof, and in most cases were introduced with the phraseology, "The duties heretofore laid by law, on goods, wares and merchandise, imported into the United States, shall cease and determine, and there shall be levied, and collected, and paid, the several duties hereinafter mentioned," or similar language.

The Congress, in the first session of the 43d Congress of 1873-1874, caused to be issued, as a part of the Statutes at Large, a volume entitled "...

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6 cases
  • Akins v. Saxbe
    • United States
    • U.S. District Court — District of Maine
    • 20 June 1974
    ...on goods brought across the border by Indians is not known, in 1937, the Court of Customs and Patent Appeals held in United States v. Garrow, 88 F.2d 318 (C.C.P.A.), cert. denied, 302 U.S. 695, 58 S.Ct. 14, 82 L.Ed. 537 (1937), that Article III of the Jay Treaty had been abrogated by the Wa......
  • United States v. Native Wholesale Supply Co.
    • United States
    • U.S. District Court — Western District of New York
    • 4 October 2011
    ...125 S.Ct. 1766, 161 L.Ed.2d 619 (2005); Akins v. United States, 64 C.C.P.A. 68, 551 F.2d 1222, 1229–30 (1977); United States v. Garrow, 24 C.C.P.A. 410, 88 F.2d 318, 323–24, cert. denied, 302 U.S. 695, 58 S.Ct. 14, 82 L.Ed. 537 (1937); United States v. Miller, 26 F.Supp.2d 415, 429 (N.D.N.Y......
  • United States v. Native Wholesale Supply Co.
    • United States
    • U.S. District Court — Western District of New York
    • 3 October 2011
    ...v. United States, 544 U.S. 349 (2005); Akins v. United States, 551 F.2d 1222, 1229-30 (C.C.P.A. 1977); United States v. Garrow, 88 F.2d 318, 323-24 (C.C.P.A.), cert. denied, 302 U.S. 695 (1937); United States v. Miller, 26 F.Supp.2d 415, 429 (N.D.N.Y. 1998). Additionally, the Tax Court in L......
  • Akins v. United States, C. D. 4629
    • United States
    • United States Court of Customs and Patent Appeals
    • 26 January 1976
    ...and "repassing" of persons across the boundary between the United States and Canada. However, in the case of United States v. Garrow, 88 F.2d 318, 24 CCPA 410 (1937), cert. denied, 302 U.S. 695, 58 S.Ct. 14, 82 L.Ed. 537 (1937), the Court of Customs and Patent Appeals considered the issue c......
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