¶1delivered the opinion of the Court.
¶2Taylor & Raddin, merchants, etc., brought assumpsit by attachment, in the Crawford Circuit Court, against Drew & Scales, merchants and partners, etc., upon a note for $506 70 bearing date 24th April, 1857, and alleged in the declaration to have been executed by the defendants, to the plaintiffs, at New Orleans.
¶3The goods of Drew were attached, and also personal service upon him; and he appeared and interposed the following plea:
¶4Aclio non; because he says that he, the said defendant, is a Cherokee Indian, and a native born subject of the Cherokee nation, west of the State of Arkansas, of which said Cherokee nation he, the said defendant, was a citizen and subject at the time of the execution of the said promissory note sued on and in the plaintiff’s declaration mentioned, and this he is ready to verify; wherefore, etc.
¶5The plaintiff demurred to the plea, the court overruled the demurrer, they rested, Drew was discharged, and they appealed.
¶6The plea is wanting in a material allegation, to make out a good defence to the. action under the decision of this court in Clarke vs. Crosland, 17 Ark. 43.
¶7There is no averment in the plea that the note declared on was executed in the Indian country.
¶8Drew may have been born in the Cherokee nation, and have been a citizen and subject of that nation at the time the note was executed, and yet he may have executed the note, for any thing that appears in the plea to the contrary, at New Orleans, in the State of Louisiana, or at Van Burén, in the State of Arkansas.
¶9Congress has not undertaken to say that an executory contract made by an Indian within the limits of one of the States of the Union, shall be void, and shall not be enforced in our courts, and if Congress were so to enact, we should be slow to concede the constitutional validity of the act.
¶10Congress exercising a parental guardianship over the Indian people, has enacted laws for their protection from imposition in their own country, but when an Indian goes into any one of the States and makes a contract there, its validity must depend, as a general rule, upon the laws of that State.
¶11That Congress has the constitutional power “ to regulate commerce with foreign nations, and among the several States, and with the Indian tribes,” is beyond question — But the clause of the Intercourse act declaring that executory contracts made by an Indian for the payment of money or goods shall be null and void, was no exercise of the power to “ regulate commerce,” etc., within the meaning of the constitution.
¶12The judgment must be reversed, and the cause remanded, with instructions to the court below'to sustain the demurrer to the plea.