Untitled Texas Attorney General Opinion ( 1948 )

THEATTORNEYGENERAL
OF TEXAS
AUSTXN I,.TEXAS
PRICE DANIEL
ATTORNEY m3Nlm.u
August 23, 1948
Ron. J. S. Hollernan Opinion MO. V-664
District Attorney
Montgomery County Re: Eligibility of Indians
Conroe, Texas to vote without paying
poll tax.
Dear Sil.:
We refer to your letters and inquiry by tele-
phone in which you submit the following:
"Can Indian citizens of the State of
Texas, between the ages of 21 and 60 years
of age, vote without paying a poll tax?
"The Indians under consideration live
on the Indian Reservation located in Polk
County, Texas. It is my understandinS that
they are supported by both the State and
the Federal Government."
The Southwestern Historical Quarterly, Vol-
ume 36, page 83, et seq., in the Archives Division of
the St~ateLibrary, contains a comprehensive history of
the Indians in PolkaCounty, from which WC Sather the
following:
Near the Big Thicket in Polk County, Texas,
11~0s~a small remnant of the Alibimu and Koasattis
Indians--commonly known as .Alabamasand Coshattis. The
two tribes are related. Shortly before the battle of
San Jacinto the Alabamas moved into Louisiana as the
army and people were fleeing eastward. The Coshattis
remained in their village on the Trinity. Tho Alabsmas
returnod to their village after tho war was over. Nei-
ther the Alabamas nor Coshattls took any part in the
war. p. 92.
In 1840 the Texas Congress granted two leagues
of land on the Trinity to each of the tribes, all of
which was taken from them by white settlers. The Indians
became landless and homeless wanderers. p. 95.
Hon. J. S. Rollernan- Pago 2 (V-664)
After the annexation of Texas, although the
United States assumed responsibility for the Indians
within the State, these bands of Alabsmas and Coshat-
tie remained under the protection of the State govern-
ment. p. 96.
Evidenced by a deed recorded in Rook D,pagea
432-3, Deed Records of Polk County, Texas, the State
purchased 1280 acres of land in Polk County in 1854,
which *as conveyed to the Indians tax free and,inalien-
able. Three hundred and thirty Alabama Indians were
settled on the land in 1854 and 1855. p. 98. About
ten Coshattis settled in Polk County. The remainder of
the tribe was scattered around Polk and Liberty Coun-'
ties, disorganized and broken in spirit. The whole num-
ber of thattribe in Texas at that time did not exceed
80. p. 100. The 1930 census shows 230 Indians then in
Polk County.
In 1928,the United States purchased 3071 acres
of land in Polk County adjoining their original preserve
to be held in trust for the,Alabama Indians of Texas~.
Vol. 88, page x)9, Deed Records, Polk County.
The United States undertook to pay $2000.00
per year for the schooling of said Indians. The fore-
going poses the question as to what constitutes an "In-'
dianReservation". It is common knowledge that "Indian
Reservations" are areas which were reserved to Indians.
in treaties between the United States and the Indian
tribes. The United States did not'own any land in Texas
to "reserve" for Indian tribes.
April 29, 1846, the Legislature of Texas adopt-
i.:ed:a
concurrent resolution which reads in part:.
“We recognize no title ,i.nthe Indian
":;!Tribesresident within the limits of the State
,?to any portion of the soil thereof; and we
'~reco&zze na right in the government of the
United Stateato make any treaty of limits
'with the Indian tribes."
Prior to June 16, 1906, Indian Territory and
'bklahomaTerritory existed as territories of the United..
States without status as states. On that date said ter-
&tories were consolidated as a single unit in the name
of;,&lahoma and by that name admitted to statehood.
Hon. J. S. Uolleman - Page 3 (V-664)
!'!ith
the exception of the small,remnant of the Alabsmas
and Coshattis, the Toxaa Indians were moved to the lands
reserved for them in said,territories and in New Mexico,
which was also such a territory at the time the Indians
were placed in Reservations by the United States.
L'eare informed by the State Department of
Eduoation that the Alabama and Coshatti Indians have
availed themselves of the Texas school laws and organ-
ixed~lndian Independent School District in Polk County;
they enumerated 113 scholastics for the presently ensu-
ing school term. $6215.00 of tho State available school
fund was apportioned to tho district. $1.80 per capita
of tho 113 scholastics is applied to school administra-
tion in Polk County.
The Alabsma and,Coshatti Indians in Polk Coun-
ty were all born in Polk County, Texas.
Section 1 of Article VI of the Texas Constitu-
tion enumerates the classes of persons'who are prohibit-
ed from voting inelections in Texas. Indians are not
prohibited.
Section 2 of said Article VI oftthe Texas Con-
stitution specifies classes who may voter The perti-
nent part of it reads:
to none of the fora-
, who shall have attain-
ed the age of twenty-one years and who shall be
a citizen of the United States and who shall
ze,r'e;;;I'd in thi State one year next preced-
lng an eleotlon andsthe last six months within
h 1 t or county in which such person of-
fers to vote, shall be deemed a qualified elec-
tor: ~. . . and orovided further. that any voter
who7is subject 50 pay a poll tax under the laws
of the State of Texas shall have paid said tax
before offering to vote at any election in this
State and hold a receipt showing that said poll
tax was paid before the first day of February
next preceding such election . . ~. And this
provision of the Constitution shall be self-
enacting without the necessity of further leg-
islation.? (%phasis added)
. a
Hon. J. S. !iollemnn- Pa6e 4 ('I-6G4)
In Totus v. Unltod States 39 Fed. Supp. 7
(1941) '70members of an Indian tribe qucstioncd the
ri,ghtof the 112 U.S.
94, 5 S. Ct. 41, 43, 28 L. Ed. 643,,decided~
November 3, 1884. hit wan there hold that
a person born in the United States to mem-
bers of an Indian Tribe had not acquired
citizenship of the United,Statcs at birth
not hnvin(:boon born 'subject to the juris-
diction thcrcof,' within the meaning of the
pourteenth Amcndmant. Since that time the
,ConSress pass.edsix Acts conferring citi-
zonship upon IndI,ans. The Act of June 2#
1924, 43 Stat. 253, S U.S.C.A. B,3, was the
last of these and it provided: 'All non-
citizen Indians born within the territorial
limits of the United States be, end they
are hereby, declared to be citizens of the
United States.1
IIon.J. ::.ilollr:m::n
- Page 5 (V-GG4)
"Xncc this act did not purport to
cllan;gcthe Tribal rolntionship of Indians
in the Unitod States. it was not clear
that it was applicable to citizens born
after its passay:oand fear was exp,rEZZd
that it vraslimited to non-citizen Indians
born within the territorial limits of the
llnitod Stntcs who wore liviny;on thr.nf-
foctive d~ateomc: net and nho by .iEnore
made citizens of th6 United Ztntos. The
ConSmssional purpo~o orgxc%n (b)
wnc to nake clonr that 311chppornoncare
born citizen::of the United ::tntcr,."(Em-
phnr,isaddod)
In ReSan v. Kin& 49 Fed. Supp. 222, It was
held that a child born in the United States of alien
parontnze is a citizen of the United, States. On ap-
peal the Circuit Court sustained the dec,isionand'in
134 Federal Reporter, 2nd, 413 said:
"On tho authority of the Pourteenth
Amendment to the Constitution, g 1, making
all p?rsonn born in the IgnitedZ'tntesclt-
1r:cnsthoroof, ~1slntarputed by the Su-
preme Court of the United States in l!nited
states V. ?iongKim Ark, 169 U.S. 649, 10
S. Ct. 456,'42 L. Zd. 890, and a long line
of decisions, including,the recent decision
in Perkins, ;Gocretnryof Labor at al. v.
Elg., 307 U.S. 325, 59 S. Ct., 884, 83 L.
Ed. 1320, the judgment of dismissal, 49 I".
Supp. 222, is affirmed." Certiorari was
denied of the U. S. Supreme Court.
Ye are of the opinion that tho Alabama and
Coshattl Indians in Polk County are citizens of the
United States and residents of the State of Toxns with-
in tho moaning of Section 2 of Article VI of the State
Constitution. ':'efind nothing in the assistance given
them by the State or Federal Covernmcnt which renders
them "paupers" or otherwise disqualified to vote.
The next question is whether such Indians be-
twoen 21 and SO are .oxemptfrom payinS poll taxes on ac-:
count of Article 2959, V.~C.S.,the portinent portion of
which reads as follows:
, . . .
IIon.J. S. Ilollcmnn- I'rqo6 (V-664)
"A poll tax shall bc colloctod from
every person bctwocn the ages of twcnty-
ono (21) and sixty (GO) years who resided
in this Atate on the first day of January
procoding it3 levy, Indinns not taxed,
person3 insane, blind, deaf or dumb, those
who have 103t a hand or foot, those perm-
anently dioablod, and all disabled veterans
of foreign war3, whore such disability is
forty,,(40$)por cent or more, oxceptod.,,
. . .
The term "Indians not taxed" was defined by the
United States Supreme Court in Elk v. Y:ilkins,112 U. S.
94 where it said:
"Indians and their property, exempt
from taxation by treaty or statute of the
United Statos. cou no e taxed by any
State." _
In a dissontinp,opinion in that case it is
said:
"This,13 apparent from that clause
of article I, section,3, which requires,
in the apportionment of representatives
and direct taxes among the several States
'according to their respective numbers,'
the exclusion of 'Indians not taxed.1
This implies that there were at that time,
in the UnitedStatcs, who were
that is, were subject to taxation
Y
laws of the State of which thev
were residents. Indians not taxed we&
those who held tribal relations and,
theroforo, were not subject .to the auth-
ority of any State and were subject only
to the authority of the United States
under tha p,owerconforred~upon Congress
. reference
in to Indian Tribes in this
country. The same provision is preserved
in. tile 14th Amentlmcnt;for, now, as at
tho adoption of tho Constitution, Indian3
in the aeveral,States, who are taxed by
their laws, are counted in e,stablishing
the basis of representation in Congress."
(Emphasis added)
Hon. J; S. IIolleman- Page 7 (V-664)
Obviously, if it were intended by Article 2959
to exempt~all Indians from the payment of a poll tax in-
.' Texas, thexoeption would have provided %dians ex-
ceptea," rather than "Indians not tax@& excepted."
Recognizing; therefore,,as we.must, that the
tens "Indians not taxed" historically ,signifiesa class-,
ification-,ofIndians which does not now exist, and spe-
cially so‘in Texas, it is apparent that the use of that
term in'.Articles7046 and 2959 is now meaningless, re-
gardless of whether such Indians are within or without
a tribal reservation. Secs.~1, 2, Art. VI, Texas Const.
Arts. 2954, 2955, 2960, V. C. S.
In view of,~theforegoing we are of the opinion
'that the Alabsma and Coshatti Indians in Polk County are
eligible voters in llexasto &he. same extent as members
of any other race. Those between the ages of:21 and 60
who 60 no’tcome within other general exemptions must
have paid poll .taxesthe 'same as other voters.
Alabama aid Coshatti Indians a&e &igible
Voters in eleCtiOnS in,TeXaS ti0 the same extent
atimembers of any other race.
Those between 21 and 60,and nb,totherwise,
exempt from the ``011 tax must have paid. the
ssme as required of other Voters. ,’
Yours’very truly,
ATTORNEY GEX@& OF TEXAS