Untitled Texas Attorney General Opinion ( 1940 )

OFFICE OF THE AlTORNEY GENERAL OF TEXAS
Honorable IL. D. PPureon
aount~ Attarnry
Lamar couB*y
Furl*, T8sa8
IOur l*tter 0 0, MQM888 a 1088l
OQ~OJI rror thi8 quoetionr etakd b?
you a8 follo*8r
9960 of the
Indlea In True
#dloaed to Iota
o n1 8lnewmr e6intin
blood le ~q ulx -84
4 ia n
OP UBQU thee* (Itatut.8,
preor ie roqrrirra to
o uch mption froplpoll %rff"
of artfols Vx OS the Oonetitufioaof Toxae
aeeae ot pareQn8 from voting la msar, but
Iadlm within the prohibitlonr.
on 8 of Artiola VI of the Coaetitutlanof Zexalr
poorida in pert a0 follower
*EVW]r P6P8On 8Ubj4#Ott0 ~00110
Of the iOZ?WgOing
4¶.aquallfioatlane,who shall have attained the a&m Of
twenty-one/bare, an4 vthoshall ba a oitisen oi tb
Unit*4 States an4 who 8hNd.lharr se8lQad in thie Eltat*
one year next prsoe4ingan eleocion en4 the last 85.x
‘_
Honorable M. D. II$yreon,page $3
month8 within the 4Ietrlct or county in whioh euoh
person offers to vote, shall be deemed a quelltied
eleotor) . . . An4 provldod further, that any rotor
who is aubjeot to peg a poll tax under the law8 of
the Stats of Taxes ehell hare peld eeid tax before
offering to rots at any dleotion in thie &ate and
hold e reoelvt ehowina that said ~011 tax we&e.
wI4
before the flret 4ap~Gf ysb&ary next preoeQi@ euoh
4l4otIon. . . ," (Empheeieoure)
Art1010 7046, Revise4 OIvIl Statutes of Trxae, pro-
vides In part a8 follower
*PoLl Tax. - There ehallbe lari44 end oolleotsd
from prreon between the age+ of twenty-oneand
every
sixty yeare, reeldeutwithin this State on the first
day of Dmuery of each par (Indlanenot taxe4;and
pereons insen4, blIn4, &leafor dumb, or thoee who have
lost one hen4 or toot, or are permanentlydinablrb;
4xoepte4),anannual poll tax. .-, ."
Artlole 2956, RsrLes4 Civil Statutes of Tmae, fol-
love Seetioa e of Artiole VXof the Conetltutlon,en4 Artlols
2969, Reriesd Civil Statutea, provide8 In pert:
-A poll tax &all 'be~aolleoted from avery preen
bstweon the a ee of twenty-one ia4 sixty year8 who
melded In th!8 Wate on the firet day of,Jenuarypre-
csdlng Its levy, Indiane not tared, petieoneInaaae,
blind, 4eef or dumb, and thoes who heto loet a hand or
foot, or peneanentlydIeab1ed, eroepted. . . .*
"All Indians born within the territoriallie&t8 of the
United Stats6 are declared to be citizen8 of the United Wetee.
* 8 U.S.C.A. 8 9; State ‘c. Kemp, 78 Pati< (Z4) (Su$&``. Of
io&a)i TrujIllo v. Prinos, 78 Pac. (rJ4)~14!5
(BuP. Ot."of 84~
M4xlco 8 Denleonr, Eltat4,iWl3Pea. 617, (@up. Ot. ol ArkaM).
And th 8 is true regardlees of whether en fndian Ie etIllL-Under'
the.guard1anehi.pof the Units4 State8 govsrtient eo far a8 either
pereonal or property rights are oooo4ra48.
We aeeume that the eubjeot Indian8 are qualIfIed
eleotore,that 18, are oltizene of the Uafted Statee, here at-
tained the age of twenty-one yeere, aa4 hat4 reel4ed in the
State of Texas and within the diatriot or oounty the rsquimd
period of time.
6
Honorable )A.D. Rmereon, Wge 3
At first blush tha proper oonstruotlonof the word8
*Indiane not taxed . . . axoaptad” wculd eaem to be, perhaps,
that no Indian in Texas is eubjeot to a poll tax.
vi4 ar4 oompalled,however,,after deeper ltuQy, to
give to the term WulIane not tax44” as 4mployed In ArtIolee
7046 and 2959, its hImtorIoa1meaning an4 ei&nItloenomee a
olaesificatlon,the oontrolllngforce of whioh.wIllIWBiiWSt
itself in arriving at ths proper oonetruotionof thaee etat-
utee.
The term nXndIane not texodv ha8 alwaye appoarod
In the etatutee 1svyIng a poll tax In Teros.
It ie amployed In Artlola I, Seotlon 2, II3, of tha
United States Conetitutlon,ee follower
uRepresantativeeend dlreot taxae ehall be ap
portioned among the esverel etetae whloh mey be ia-
eluded within this Union, ecoordl to their reepeot-
114 numbare, whioh shall ba d&e .a nod by edding to
the whole number of Sree pereone, Inoludlng thoeo
bound to aarvlor for 8 tera of yeera, an4 lrcludlag
Indiane not texad, three-rifthe of all other persone.
. . .11
This claumwae, OS couree, amended 68 to the mode
of apportlonmantof rapreeentetiveeamong the several etatee
by tha 14th Amendmant en& ee to taxed on inccrae without ep-
portlonmentby tha 16th Amendment.
8aotIon 2 of tha 14th Amsndmant reads in part a8 fol-
lower
~RepreeantetIvaeshall be apportionedamong
the eeveral atatea aooording to their reepaotil4
numbers, oounting the whole number of pereons In
eeoh stats, sxoluding Indians not taxed. . . .*
.
In the oelebratad oaee of Elk v. Wilkins, 112 U.S.
94 (deoidedRotamber a, 1884), Mr. Juatioe (Iray,In dalIvarIng
the majority opinion, discueee4 tha term *Indiana not taxad”
i a8 r0iiow63
7
Flonoreble
bl.D. ?Xmerson,Page 4
*Under tha Constitution of tha United Statse,
as originally eetabllahsd,‘Indiansnot taxed* wara
exoluded from the pereone acccrding to whore numbrre
representativesand direct taxes were apportioned
emow the several etatee; and Congress had en4 exar-
01~44 the power to regulate oommeroe with tha Indian
trlbea, end the member8 thereor, whether within or
without the bomtiai-ies of one of the etatoe of the
Union. The Indian tribce, being wIthIn the tmrltor-
la1 1ImIte of tha Unite4 Statee, w4r4 not, strictly
epeeklng,foreign 6tateaJ but the were alien netlone,
4ietlact politIcel commuuitles,wi! th whom the Unltod
States might end habItuelly did deal, es they thought
fit, either through trsetlee made by the Prrrident
en4 Ssnate, or through note of Congrrae in the ordin-
ary rorme of legislation. Tha mambors of thoee trike
owed Iama4iataallaglanoe to thalr revere1 trlbee,
en4 were not part of the psopls of the UnIted Stetee.-
They ware In e dependent oondltion, e etete of pupll-
a80, resmbllng that of .award to his guardian. In-
dlane end their property, 4s4rapt from taxationby
treaty or etmtutr of the UnitoQ States, 00~14 not bo
texod by any etata. . . .O
Thlr exemption of tribe1 Indlene from Stets taxation
haa oonnlstantlylnrn upheld by the oourte o? our lend. In
state Y. Caapbell, 63 Pinn. SS4, 55 H. W. 553, It ne ealdr
Them 18 no Qroleion of the Fedora1 oourts that
e State orru,even In the ebaenor of a reetrlotionIn
a treaty or in the Act 64mIttIug the Stat0 Into tha
UnIw, sxtand its lewa, olthmr c1~11 or orialnal,
ovar tribal Tna+Aas realding under the o,areof the
general governmentupon e reeervetlcm set epart by It
ror thet purpoe6.*
In Chow-taw& Gulf R. R. 1. Xarrieon, ES5 U, 8. me,
296, the 8uprame Court eelts
"In the region formarly knovrnea Indian Tarrltorp
C- now within the state of Oklahome -- the Chootew en4
Chiokeshew InQIene ec werdr of the UnItod Steter, own
a lsrge em6 of segr4gatoQan4 unallot44 lend8 oontaln-
ing valueblr coal depoeite, whIoh are not subject to
texetlon by the etatr. Tiger t. Weetern Inl4atmsnt CO.,
221 U.S. 286, 310, 312; I& part4 Webb, 225 U.S. 663,
684.99
8
HonorableMB.D. mereon, Page 5
The aonaeptlonqf the term vIndlans not taxed” ae
meaning Indian8 who are not subject to taxationby the State
is found in the aase of United States v. Kagama, 118 U.S.
375, 378, wherein the court mid:
*In dealarihg the basis on which representation
in the lower branch of the Congress and direct taxa-
tion should be apportioned, It was fixed that it should
be aoaording to mmbora, excluding Indians not taxed,
rhiah, of coursa, exluded nearly all of that raae, but
whloh meant that if there were such within a State aa
were taxed to support the government,they rhould be
aounted for repreaentatlon,and In the computationfor
dire& tamelevied by the United Stat8s.v
Further, in thla case, the Supreme Court said;
“These Indian tribea are the wards of the nation.
They are aomiunitleedependent on the United State&
Dependent largely for their daily food. Dapendent for
their polltioal rights. They owe no allegianceto the
8tat0, and reoeive from thsnrno proteati0n.v
The aontrollingoonalderationis whether the rtatue of
the Indian tenders hlm rubjeat to taxation by the State. In.
U. 8. v. Porter, 33 Fad. (3d) 365,it w8a said:
“The perronal property deaarlbedin the oomplaint
Is owned and held by an Indian, out&de of an Indian
reaervatlon,and we peroelve no reason why it ia not
subject to taxation by the State. . . . He liver out-
aLdd of tha reeervattlon, under the proteotion of the
State, and It would be going a long way to hold that
he is under no obligationto obntrlbutsto the expenees
of the State - governrimnt.*
Mr. yuatice Harlan, In delivering the dlaaent5.W opin-
ion in Elk v. Wllklns, aupra, defines vIndlans not taxed” ae
follows:
r
vIadiana not taxed were those who held tribal
relations,and, therefore,were not subjeot to the
authority o$ any State and were subject only to the
9
HonorableM. D. EIperaon,Page 6
authority of the United states under the power aon-
ferred upon Congress in referonoa to Indian trfber
in this oountry.”
iiecogniziw,theretore, as we must, that the term
“Indiana not taxed” hlatorloallysignifiesa classification
of Indians, it is apparent that ths use of the term in Articles
7046 and 2985 represents an intended claaalfiaation,and im-
plier that there were Indiana who were, or might subsequently
become, subjeat to taxationby the &tats of their residence.
Cbrlouely, ifsit were intelded to exempt all Indiana
from the payment oi a poll tax In Texas, the except%i would
have provided “Indiana ,... excepted*,rather than “Indiana
not trxrd .... exorpted*.
Tha .exoluslonof Indians not taxed evlnoed a purpose
to include thoosewho were subjeat to being taxed by reason of
their change in statue.
A poll tax, of oourae, la not a tar upon property.
Its lsvy la not dependent upon the ownership by the citizen
of any personal or real property aubjeat to texatfon. It le
nat a tax upon the exercise of the right or suffr@ge. It is
a tax authorized by Section 1 of Article VIII of the Constltu-
tion of Texas, which says, -The Le&lslsturemay impose a poll
tax*, and may be deeorlbed as a tax upon the enjoyment by a..
citizsn of Texas of the privileges and franchisea of citizen-
ship.
An Indian who has eevered his tribal relations, who
dose lot live upon a rsaarvatlon and is not a ward of the Fed-
eral governmsnt, and therefore is not subjeot to the exclusive
authority of the Federal government, has beoome merged with the
masa of the American people, and ia aubjeot, aa other oitizens,
to the juriediationor the State. He has lost hle olassifiaa-
tlon aa an “Indian not taxed* and haa beaonm an Indian taxed
in the aams manher aa all other o:tizens of the State. As
auah, he 16 subject,when a oltiaen of Texan, to the payment
of the constitutiona and statutorypoll tax, and to the same
reqtiirrap;ents
with referenoe to the payment of came before he
may be allowed to vote In any eleotion in the State.
of course, an Indian who has not severed !&I?.
tribal
rslationrj,
and who IS living ii#ena government reservationae
Honorable M. D. Emerson, Page 7
a ward of the government,retaina his etatus a6 an “Indian
not taxed” and is exanpt rrom the payment of e poll tax.
We have assumed,however, that the aubjsct Indians of your
request do not rall wlthln this olaralfioatlon.
We have oareiully aonaidered a letter opinion of
this Department dated Deoember 30, 1936 (Vol. 384, p. 52,
Letter Oplnlom) whlah holds that an Indian in Texan who ren-
&err no property for taxation is not subject to the payment
ot a poll tax, whereas, one who pays a property tax in Texas
f 18 alma abject to a poll tax. Having aonoluded that this
rormer opinion is in error, for the reasona etated herein, it
in exprersly overruled.
In view oi the foreaoim dlsouseionand m awer to
the first queatlon propounded-byiou, it beoomee unnecessary
to dlsouss your aeoond queatfon,
Yours very truly
ATTORNlFPDEHERAL OF TBXAS
BY
i
ZCSIBBB APPROVEDOCT 9, 1940
.
ATTORNEY GENERAL OF TMAS