Untitled Texas Attorney General Opinion

The Attorney General of Texas
March 22. 1983
JIM MATTOX
Attorney General
Mr. Charles D. Travis Opinion No. JM-17
Supreme Court Building
Executive Director
P. 0. Box 12546
Austin. TX. 76711. 2546 Texas Parks and Wildllfe Department Re: Enforcement of the Texas
512H752501 4200 Smith School Road Parks and Wildlife Code withla
Telex S101074~1367 Austin, Texas 70744 the confines of the Alabams-
Telecopier 51214750266 Coushatta Indian Reservation
1607 Main St.. Suile 1400 Dear Mr. Travis:
CUllas. TX. 752014709
214l742.6944 A question has arisen about the authority of the Texas Parks and
Wildlife Department to enforce the Texas Parks and Wildlife Code
within the confines of the Alabama-Coushatta Indian Reservation. You
4624 Alberla Ave.. Suite 160
El Paso. TX. 79905.2793 have requested our opinion.
91515333464
- The "reservation" consists principally of two tracts located in
Polk County. One of them, consisting of 1,280 acres, was purchased In
1220 Dallas Ave., Suite 202
Houston. TX. 770026966
several parcels for the Alabama Indians by the state government in
7131650~3666 1854 and 1855. The purchase was authorized to honor a claim held by
the Alabama tribe against the Republic of Texas. Acts 1854. 5th Leg.,
ch. 44, at 68; Acts 1840, 4th Congress of the Republic. at 197. See
608 Broadway. Suile 312 Attorney General Opinion UW-43 (1957); 1 Texas Indian Papers 102, 117;
Lubbock. TX. 79401.3479
D. Jacobson, A. Martin. R. Marsh, Alabama-Coushatta Indians 288-89
60617476238
(1974). The other tract, an adjacent 3,071 acres, was conveyed in
1955 by the federal government to the state "in trust for the benefit
4309 N. Tenth. Suite S of the Indians of the Alabama and Coushatta Tribes of Texas." 25
McAllen. TX. 76501-1665 U.S.C. 1721. The transfer was accepted by Texas pursuant to earlier
51216624547
legislative authorization. Senate Concurrent Resolution No. 31, Acts
1953, 53rd Leg., at 1078. See
- Attorney General Opinions Hi-468
200 Main Plaza. Suite 400 (1958); ww-43 (1957).
San Anlonio. TX. 76205.2797
5121225-4191 The Texas Parks and Wildlife Code was enacted in 1975. It
establishes the Parks and Wildlife Department as an agency of the
An Equal Opportunilyl state, and charges it with administering the laws set out in the code
Affirmalire Action Employer and with enforcing all state laws relating to the protection and
preservation of wild game, wild birds, fish and other marine life.
Parks and Wild. Code ~JI11.011. 12.0011 12.101< Particularly, chapter
61 of title 5 of the code, which enacts the Uniform Wildlife
Regulatory Act. provides that "[tlitle 7 of this code prescribes the
counties, places. and wildlife resources to which this chapter
applies." Id. 161.003. 'In addition, section 287.001 of title 7
reads: "ExGt as provided in this chapter, the Uniform Wildlife
Regulatory Act . . . applies to the wildlife resources in Polk
p. 65
Mr. Charles D. Travis - Page 2 (JM-17)
County." (Emphasis added). Thus. the Texas Parks and Wildlife Code
is expressly applicable to wildlife resources on the Alabama-Coushatta
Indian Reservation located In Polk County unless the code itself
excepts the reservation from its operstion. or unless some other law
operates to do so. -See In re Wilson, 634 P. ‘
Zd 363 (Cal. 1981).
Subchapter E. chapter 61 of the code makes special exceptions
from portions of the Uniform Wildlife Regulatory Act for some arees
end tracts in the state, but not for the Alabama-Coushatta Indian
Reservation. In addition we have found no other Texas law that would
exempt the reservation from code provisions applicable to Polk County
generally. unless article 5421s. V.T.C.S., which purports to make the
Texas Indian Commission responsible for “the development of the human
and economic resources of the Alabama-Coushatta Indian Reservation”
provides such an exemption. Id. $7. The authority of the Texas
Indian Commission over reservation lands will be discussed in the
course of considering a contention that no specific exemption is
necessary to exempt reservation lands from the operation of the Parks
and Wildlife Code because, it is argued, the peculiar status of the
reservation ss an Indian reservation removes it from the reach of the
stste’s wildlife reguletory powers.
It is a general rule in the United States, of federal origin,
that a state cannot enforce its game and fish laws within the domain
of an Indian reservation situated within the borders of the state.
See 41 Am. Jur. 2d Indians 519. Cf. Montana v. United States, 450
U.S. 544 (1981) (regulation of non-Indians). Nowever, In Attorney
General Opinion NW-49 (19791, this office observed that federal
authority to enact legislation singling out tribal Indians for special
treatment derives from the power of Congress to regulate commerce with
Indian tribes, from the treaty power , and from the federal trusteeship
over Indian lands established by the Indisn Nonintercourse Act. See
U.S. Const. art. I. §8. cl. 3; srt. II, 12, cl. 2; 25 U.S.C. $177;
Worchester v. Georgia, 31 U.S. 515 (1832). States do not share a
similar “unique relationship” with Indians and may enact legislation
sinnlinn them out onlv when authorized to do so bv Connress. See
Washington v . Confederated Bsnds and Tribes of the Y&ma Indian
Nation. 439 U.S. 463 (1979): Foster v. Pryor, 189 U.S. 325 (1903). In
passing. Attorney General Opinion MW-49 (1979) noted thst the
Alsba&-Coushatta-people have been specificslly recognized by federal
law, but it did not address the current ststus of those Indians under
either Texas or federal law. or propose to settle any question with
respect to them.
The current legal ststus of tha Alabama and: Cousbatts Indians and
of the Alsbsma-Coushatta reservation has been obscured snd confused by
past opinions of this office that sometimes were not consistent with
the Texas Constitution nor with each other. The Texas Constitution
edopted in 1876 makes no distinction -- and has never made one --
between Indians and other people, or between Indian peoples of
different tribes. -See Ex psrte Flournoy. 312 S.W.2d 400. 491 (Tex.
p. 66
Mr. Chnrles D. Travis - Page 3 (JM-17)
1958); Missouri Pacific Railway Company v. Cullers' 17 S.W. 19. 21
(Tex. 1891). Until Congress made them United States citizens in 1924.
Act of June 2, 1924, ch. 234, 43 Stat. 253, Indians were treated by
Texas courts ss resident aliens. Missouri Pacific Railway Company v.
Cullers. supra. Since that time they have shared the rights and
responsibilities of all Texans. See also 8 U.S.C. 11401(b); Attorney
General Opinion V-664 (1948). Cf. Attorney General Opinion O-2802
(1940). Moreover, in 1972 a provision was added to the Texas
Constitution prohibiting discrimination under the law on the basis of
national origin. Tex. Const. art. I, §3a.
Some past Attorney General Opinions have regarded the Alabama-
Coushatta people ss "wards of the state," and have considered the
state to be the "trustee" of sll their land; some have not. In
Attorney General Opinion V-664 (1948). the 1,280 acre tract was said
to have been "conveyed to the Indians tax free and inalienable," but
that statement was apparently based upon an article in the
Southwestern Historical Quarterly, and not upon an independent
examination of the anoronriate
. . . deeds or the tax laws of the state.
See Smither. The Alabama Indians of Texas, 36 Southwestern Historical
Quarterly 83, 98 (1932). In Attorney General Opinion WW-43 (1957). it
was declared that "[tlhe Act of lS54 and the-original deeds placed
title to said land in the tribe of the Alabama Indians. . . . Such
being the case, the State is not a trustee of the land, since it
belongs to the Indians.' (Emphasis added).
As stated earlier' the Alabama-Coushatta Indian Reservation
consists principally of two tracts, one of them having been purchased
in various units during 1854 and 1855, and the other having been
deeded to the state much later by the federal government. Originally,
the Alabama tribe and the Coushatta (or Coushatti) tribe were separate
peoples. The 1854 grant of the 1,280 acres that constituted the
original part of the reservation was made in the form of several deeds
to "the tribe of Alabama Indians" or "that tribe of Indians known as
the Alabama Indians." Some of the deeds alluded to the legislative
purpose of the transaction but none expressly conveyed the lands to a
"trustee" for the Indians or in any way restricted the future
alienation of the lands conveyed. See D. Jacobson, H. Martin,
R. Marsh, Alabama-Coushatta Indians 348(1974). However, the act
which authorized the purchase provided that:
said Indians shall not alien, lease, rent' let,
give or otherwise dispose of said land or any part
thereof to any person whatsoever. And should the
State of Texas hereafter provide s home for said
tribe of Indians, and settle them thereon, then
the said twelve hundred and eighty acres of land,
with its improvements, shall become the property
of the State.
Acts 1854, 5th Leg., ch. 44, at 68.
p. 67
Mr. Charles D. Travis - Page 4 (JM-17)
Although the Coushatta Indians came to join the Alabama6 on the
reservation in the interim, for many years following the 1854 purchase
of the 1,280 acre trsct the Indians and their land were not the
subject of either judicial or legislative scrutiny. It was not until
1928 that the federal government purchased the larger tract "in trust
for the Alabama and Coushatta Indians of Texas." See Act of May 29.
1928. ch. 853, 45 Stat. 883. 900; 88 Deed Records ofPolk County Texas
209 (1928). Furthermore' it was in the 1929 biennial approprietion
bill for "state eleemosynary institutions" that the Texas legisleture'
for the first time following the adoption of the 1876 Constitution,
appropriated money to the "Alabama and Coushatti Indians in Polk
County, Texas." Among the items of appropriations was one for "50
homes for inmates." By rider the sppropriations act specified that an
agent (whose salary was to be paid one-half by the federal government)
was to be appointed by and be under the control of the Board of
Control. Acts 1929' 41st Leg., 3rd C.S.. ch. 17, at 457' 484-85. In
our opinion, these 1929 provisions were invalid.
Although sn earlier legislative session had authorized the Board
of Control to purchase all supplies used by "each eleemosynary
institution. . . and all other State Schools or Departments of the
State Government heretofore or hereafter created," Acts 1929,
"~Forty-First Legislature' second Called Session, chapter 17, at 30, no
general legislation had designated the Alabama-Coushatta lands ss sn
eleemosynary institution in 1929. Article III, section 44 of the
constitution expressly prohibits (and prohibited then) the legislature
from making any appropriation "when the same shall not have been
provided for by pre-existing law." Corsicana Cotton Mills, Inc. v.
Sheppard. 71 S.W.2d 247. 250 (Tex. 1934). At the very time the
appropriation is made, there must already be in force some valid law
rendering the claim to be paid a legal and valid obligation of the
state; a "moral obligation" will not suffice. Austin National Bank v.
Sheppard, 71 S.W.2d 242, 245 (Tex. 1934). The same section of the
constitution also prohibits the legislature from employing of anyone
in the name of the state unless authorized by pre-existing law.
Moreover, appropriation act riders, to be valid, must do no more than
detail' limit, or otherwise restrict the use of funds appropriated.
Tex. Const. art. III, 535; Moore v. Sheppard, 192 S.W.2d 559 (Tex.
1946). See Attorney General Opinion V-1254 (1951).
Nevertheless, from 1929 on' appropriations were regularly made to
either the "Alabama and Coushatta Indians" or the "Alabama and
Coushatta Indian Agency." Later, in 1949, two relevant (but
inadequate) general acts in p ari materis were passed by the
legislature; they dealt with 'Texas Stete Hospitals and Special
Schools." The first, passed in April 1949' was an act designating the
institutions previously called "Eleemosynary Institutions" as "Texas
State Hospitals and Special Schools." The title of the act did not
refer to the Alabama-Coushatta tribe or its land' but the body of the
law included the "Alabama-Coushatti Indian Agency" in the list to be
thereafter known collectively as the "Texas State Hospitals and
p. 68
Hr. Charles D. Travis - Page 5 (JM-17)
Special Schools.” Acts 1949, Slst Leg., ch. 157. at 324-25. The
second act, finally passed in May of that year, was one. according to
its title, “creating a Board for Texas State Hospitals and Special
Schools” and “providing the transfer to said Board the control and
management of hospitals and special schools.” Again, the title
omitted any reference to the Alabama-Coushatta and the land, but the
body of the act specified that the term “Texas State Hospitals and
Special Schools” shall mea”, inter alia. “The Alabama Coushatti Indian
Reservation, Livingston, Texas.” Acts 1949, Slat Leg., ch. 316, at
588-89.
As will be later discussed, the 1949 acts, too, were ineffective
to convert the lands into a state institution, in our opinion.
Subsequently, however, three opinions, Attorney General Opinions
WW-782 (1960); C-520 (1965) and C-593 (1966). relied upon the
designation of the reservation as a “special school” under the
jurisdiction of the Board for Texas State Hospitals and Special
Schools or the Texas Commission for Indian Affairs, its successor. to
determine the legal status of the reservation. The latter two
opinions seemed to assume that the Texas Indian Commission, as
successor to the earlier board. was charged with the control and
management of the entire reservation and not merely land conveyed in
trust to the state by the federal government. The same asqumption was
apparently made by Attorney General Opinion M-44 (1967). The most
recent opinion of this office relating specifically to the
Alabama-Coushatta reservation did not address the question but did
cite Attorney General Opinion C-520 (1965). See Letter Advisory No.
78 (1974). See also Attorney General Opinion O-7446 (1946).
Only the federally purchased land was involved In Attorney
General Opinion ``-327 (1957), and the status of the 1,280 acres was
not discussed. Attorney General Opinion WW-468 (1958). however,
recognized that distinctions in legal status were to be made between
the federally purchased and state purchased tracts, and said of the
1854 transaction, “to accurately determine the nature of the estate
conveyed to the Indiana, we must construe the deed and the Act
together.” It concluded that a” oil and gas lease by the Indians on
the 1,280 acres was prohibited by the 1854 legislative restriction
against alienation but said, “[tlhe reversionary estate is in the
State of Texas and should the Legislature see fit to provide a lawful
procedure for leasing these lands, it could do so.” Thus, it appears
that the removal of any legal restrictions upon alienation of the land
by the Indians was thought by the author of WW-468 to depend upon a
discretion lodged in the owner of the reversionary interest in the
land, and not upon any trust relationship between the ~atate and the
tribe or Its members, or upon any discretion that the state as a
trustee might have in managing a trust for the benefit of the Indians.
n
1. The 1954 federal law “authorized” the tribe to convey the
1.280 acre tract to the state, but no such transfer was ever made
insofar as we have determined; -see 25 U.S.C. $721; Attorney General
Opinion ww-43 (1957).
Mr. Charles D. Travis - Page 6 (JM-17)
After a thorough review of all the applicable deeds, statutes,
court opinions and Attorney General Opinions, we have concluded that
in 1949 the Indiana owned the 1,280 acres free of trust, and the rest
of the land was held in trust for them by the United States. not by
the state. No doubt with good intentions, but without the apparent
consent of the Indians, the 1949 legislature purported to convert the
tribal lands into an eleemosynary type institution and to vest control
and management over them in the Board for Texas State Hospitals and
Special Schools. Cf. Tex. Const. art. VII. 19 (asylums). Prior to
these 1949 enactmen=. no general statute that we have found referred
to the tribal lands as an eleemosynary institution or placed them
under the control of a state agency. or even referred to them as a
“reservation.” Cf. Acts 1934. 43rd Leg., 2nd C.S.. ch. 53, at 115
(creating Indian~llage Independent School District). Indeed, one
year earlier, in Attorney General Opinion V-664 (1948), It had been
noted that “Indian Reservations” are areas which were reserved to
Indians in treaties between the United States and the Indian tribes,
and that the United States did not own any land in Texas to “reserve”
for Indian tribes.2 The opinion discussed the grants of state
purchased and federally purchased lands, concluding:
We are of the opinion that the Alabama and
Coushatta Indians in Polk County are citizens of
the United States and residents of the State of
Texas. . . . We find nothing in the assistance
given them by the State and Federal Government
which renders them ‘paupers’ or otherwise
disqualified to vote.
The state’s ostensible assumption of power over the Indians’
property was clearly in violation of article I, section 19 of the
-
Texas Constitution, which specifies that no citizen of this state
shall be deprived of “life, liberty, property. privileges or
inrmunities, or in any manner disfranchised” except by due course of
the law of the land. See Eggemeyer v. Eggemeyer. 554 S.W.Zd 137.
140-41 (Tex. 1977). See also Tex. Const. art. I. 517 (taking.
damaging or destroying property for public use). The Texas
Constitution protected Indian citizens in their liberty and protected
their property from confiscation, both in 1929 and thereafter.
“The Texas Indian Commission” is the name given in 1975 to the
Commission for Indian Affairs, which in 1965 succeeded the Board for
Texas State Hospitals and Special Schools with respect to the
supervision. management. and control of the Alabama-Coushatta Indian
Reservation. V.T.C.S. art. 5421x; Acts 1975. 64th Leg., ch. 185. at
435; Acts 1965. 59th Leg., ch. 279, at 552. Neither in 1965, 1949, or
2. Our use In this opinion of the popular designation “Alabama-
Coushatta Indian Reservation” is for convenience only. Neither the
1,280 acre tract nor the 3,071 acre tract were ever part of the
federal public domain. and federal statutes do not refer to the lands
as an “Indian reservation.”
p. 70
L *
Mr. Charles D. Travis - Page 7 (JM-17)
1929 could the Legislature by fiat make the Indians “wards of the
state” or “inmates” of an eleemosynary institution, nor otherwise
deprive them of their property or personal rights. The statutory
attempts to unilaterally Invest the Board of Control, and later the
Board for Texas State Hospitals and Special Schools. with control and
management of the 1,280 acre tract and associated assets were
ineffective to legally accomplish that result. The 1965 act
transferring the “powers’ duties and functions” of the latter board to
the new Commission for Indian Affairs (now the Texas Indian
Commission) plainly accomplished no more. with respect to the title
and control of that tract, than did the earlier acts. There may be
valid subsequent transactions and covenants that affect the present
use and disposition of the Indians’ land, but there is no valid state
law of which we are aware that would subject enforcement of the Parka
and Wildlife Code on the 1.280 acre tract to any regulatory power of
the Texas Indian Commission, nor one that would constitute the 1,280
acre tract an “Indian Reservation” within the meaning of federal law.
See Attorney General Opinion MW-49 (1979). See also Organized Village
ofKake v. Egan, 369 U.S. 60 (1962) (state power over non-reservation
Indians).
We have not overlooked the terms of the 1854 law under which the
original purchases were made. The conditional reverter and the
restraints on alienation imposed by the 1854 act, assuming they should
be read into the deeds to the 1.280 acres received by the Indiana,
have since been made nugatory by operation of law. It is no longer
constitutionally permissible for the state of Texas to ‘provide a home
for said Indians, and settle them thereon.” Tex. Const. art. I. 03a.
As a result, the grant has become absolute and not subject to
defeasance. Davis v. Gray, 83 U.S. 203 (1873). Furthermore,
perpetual disabling restraints on alienation are invalid under the
present constitution. Tex. Const. art. I. 526. See Matter0 v.
Herzog. 367 S.W.2d 312 (Tex. 1963); Trustees of the Casaiew Assembly
of God Church v. Williams, 414 S.W.2d 697 (Tex. Clv. App. - Austin
1967, no writ). See also Gray v. Vandver, 623 S.W.2d 172 (Tex. App. -
Beaumont 1981, no writ). Cf. Sonny Arnold, Inc. v. Sentry Savings
Association, 633 S.W.2d 811-x. 1982).
We turn now to the federally purchased tract of 3,071 acres.
Neither the Alabama8 nor the Coushattas have aver been signatories to
a treaty with the federal government. When the early appropriation
acts and the 1949 general statutes were passed, that tract was held in
trust for the Indians not by the state of Texas, but by the United
States, which had assumed a “unique relationship” with the tribe by
statute. not by treaty. See Act of May 29, 1928, ch. 853, 45 Stat.
883. 900. The 1949 Texaxegislation was obviously Ineffective in
itself to legally convert that federally held tract into an
eleemosynary type institution controlled and managed by a state
agency. The actual transfer of trust responsibilities from the United
r States to the state did not occur until 1955.
p. 71
,
Mr. Charles D. Travis - Page 8 (JM-17)
The “trust relationship” toward the Alabama-Coushatta that the
federal government assumed in 1928 when it purchased the 3,071 acre
tract for them was terminated by Congress in 1954. Section 726 of
title 25, United States Code, provides, among other things:
[A]11 statutes of the United States which affect
Indians because of their status as Indiana shall
no longer be applicable to the Alabama and
Coushatta Tribes of Texas or the members
thereof. . . and the laws of the several States
shall apply to the tribe and its members in the
same manner as they apply to other citizens or
persona within their jurisdiction.
The effect of such "termination" was to destroy the "unique"
status of the combined tribes and their members under federal law.
Cf. United States v. Antelope, 430 U.S. 641, 647 0.7 (1977). citing
vith approval United States v. Heath, 509 P.2d 16 (9th Cir. 1974).
See also Bryan v. Itasca County, 426 U.S. 373, 389 6 0.15 (1976)
(alluding specifically to the Alabama-Coushatta Tribes of Texas and
their "termination" status). "Termination" is the last step in
assimilation. Cheyenne-Arapaho Tribes of Oklahoma v. Oklahoma, 681
xF.2d 705, 706 (10th Cir. 1982). See Affiliated Ute Citizens of the
State of Utah v. United States, 406.S. 128 (1972) (effect of trust
termination). Cf. Menominee Tribe of Indians v. United States, 391
U.S. 404 (1968)(treaty rights preserved by act in pari materia with
termination act); Kimball v. Callahan, 590 F.2d 768 (9th (Xr. 1979)
(treaty rights expressly preserved by termination act itself); United
States v. Felter. 546 F. Supp. 1002 (D. Utah, C.D.' 1982) (mixed I
blood's tribal rights). The Supreme Court in Bryan v. Itasca County,
supra, indicated that the congressional intent was to subject the
Alabama-Coushatta "to the full sween of state laws and state
taxation.” 426 U.S. at 389. Cf. United States v. John, 437 U.S. 634
(1978); Eastern Band of CherokeeIndians v. Lynch, 632 F.2d 373 (4th
Cir. 1980) (tribes currently under federal supervision). At the same
time, the federal corporate charter of the Alabama-Coushatta Tribes of
Texas was revoked. 25 U.S.C. 0725. As a consequence, apart from the
rights of its members in the land previously mentioned, the
"Alabama-Coushatta Tribes of Texas" Is merely an unincorporated
association under Texas law. with the same legal status as other
private associations. See generally 7 Tex. Jur. 3rd Associations and
Clubs 51 et seq. Cf. Attorney General Opinion MU-49 (1979).
The extent to which it was intended by the 1955 transfer to give
control of the 3,071 acres to the state is somewhat,10 doubt. The
legielative history of the act authorizing the transfer is found at
[1954] U.S. Code Congressional and Administrative News 3119. There is
some indication that the transfer was proposed mainly to allow state
management of the timber resources of the tribe. Id. at 3121, 3122.
In any event, the bill was amended, at the insistenceof the Indians,
to make any disposition of the lands by the state "subject to approval
p. 72
. Y
Hr. Charles D. Travis - Page 9 (JM-17)
of a majority of the adult members of the Alabama and Coushatta Tribes
of Texas." Id.
- at 3129' 3130. -See 25 U.S.C. 1721.
The state did not step into the shoes of the federal government
when it became trustee of the 3.071 acre tract, because it could not
legally assume the same relationship toward the Indians that the
United States occupied. As noted, prior to the transfer the United
States purported to exercise its trusteeship in the context of its
"unique relationship" with the tribe established by the Federal
Constitution and the Indian Nonintercourse Act. See U.S. Const. art.
I, 58. cl. 3: art. II. 52. cl. 2; 25 U.S.C. 1177. On that basis,
Congress could constitutionally provide the Indians special treatment
rationally tied to its unique obligation toward them. Morton v.
Hancari. 417 U.S. 535 (1974). As also noted, however, Indians occupy
no status under state law that would authorize the state to single
them out in a constitutionally offensive manner. Mere congressional
permission to do so (as contrasted with a conaressional mandate) is
not enough if state law does not allow the state to exercise the
permission granted. Washington v. Confederated Bands and Tribes of
the Yakima Indian Nation, 439 U.S. 463 (1979). See Attorney General
0P1010" MW-49 (1979). The conaressional lannuaae reoudiates anv
suggestion that ~a federal preempiion of state iaw-was contemplated:
The act effecting the transfer expressly specifies that "the laws of
the several States shall apply to the tribe and its members in the
same manner as they apply to other citizens or persona within their
jurisdiction." 25 -U.S.-C.- 1726. See
- Rehner v. Rice, 678 F.2d 1340,
1345 and n.11 (1982).
Under state law, the state of Texas or one of its agencies may
hold and administer trust oronertv in order to accomolish a nrooer
public purpose, Friedman v.'Am;?ri&n Surety Company of' New York. i51
S.W.2d 570 (Tex. 19411, but agents of the state cannot legally
administer a trust or act as trustees if the agreement to do so is
against public policy. Amalgamated Transit Union, Local Division 1338
v. Dallas Public Transit Board, 430 S.W.2d 107 (Tex. Civ. App. -
Dallas 1968. writ ref'd n.r.e.)' cert. denied, 396 U.S. 838 (1969).
Therefore, in order for the state of Texas properly to hold and
administer the trust accepted from the federal government, such acts
must serve sproper public purpose under Texas law.
In 1955, when the United States transferred the land in trust to
the state. the constitutional concept of equality under the law was
undergoing change. It was still arguable then that classifications by
a state on the basis of race or national origin were permissible if
they were rationally predicated. Since that time it has become clear
that such classifications can be justified only by a compelling state
interest. Hunter v. Erickson, 393 U.S. 385 (1969). Cf. Shapiro v.
Thompson, 394 U.S. 618 (1969). In 1972, Texas adopted anamendment to
the state constitution reading:
p. 73
” .
Mr. Charles D. Travis - Page 10 (JM-17)
?
Equality under the law shall not be denied or
abridged .because of sex. race' color, creed, or
national origin. This amendment IS
self-operative.
Tex. Const. art. I. 93a. Absent a compelling need, the state cannot
discriminate either in favor of or against the Alabama-Coushatta
.'ly because they are "Indian" See Mercer V. Board of
T&tees, North Forest Independent School District. 538 S.W.2d 201
(Tex. Cl". App. - Houston [14th Dist.] 1976. writ ref'd n.r.e.1. Cf.
Shaver v. Hunter, 626 S.W.2d 574 (Tex. App. - Amarillo 1981. wx
refld re Baby Girl S, 628 S.W.2d 261 (Tex. App. - Eastland
1982, writ ref'd n.r.e.); Lincoln v. Mid-Cities Pee Wee Football
Association. 576 S.W.2d 922 (Tex. Civ. App. - Fort Worth 1979. no
writ); Vick v. Pioneer Oil Company, 569 S.W.2d 631 (Tex. Civ. App. -
Amarillo 1978. no writ).
The evident purpose of all the state enactments since 1929
concerning the Alabama-Coushatta Indians has been to aid a small,
needy ethnic group to which the state considered itself morally
obligated, if not legally so. Even if a rational basis for extending
such aid might be postulated, it cannot be said that a compelling
public purpose is served by singling out the Alabama-Coushatta people
to be beneficiaries of a gratuitous trust relationship with the state.
A covenant or agreement that promotes racial discrimination
cannot be enforced by state action. Clifton v. Puente, 218 S.W.Zd 272
(Tex. Civ. App. - San Antonio 1948. writ ref'd n.r.e.). See also
Shelley v. Kraemer, 334 U.S. 1 (1948); Harrison v. Tucker, 342 S.W.2d
383 (Tex. Civ. App. - Fort Worth 1961, writ ref'd n.r.e.). The
"trust" arrangement discriminates between the Alabama-Coushatta people
and other citizens on the basis of their "Indian" origin. Agents of
the state, therefore, cannot control the 3,071 acre tract as trustees.
Moreover, the deed from the federal government to the state conveying
the land "in trust" does not prescribe the nature of the trust. Under
such circumstances' the trust is "dry" and the beneficiaries are
entitled to the actual possession and enjoyment of the property. The
deed must be treated as vesting the title to the 3.071 acre tract in
the Indians themselves. Moore v. City of Waco, 20 S.W. 60. 63 (Tex.
1892). See Bohn v. Bohn' 420 S.W.2d 165 (Tex. Civ. App. - Houston
[lst Dist.] 1967, writ dism'd); 57 Tex. Jur. 2d Trusts 534.
In our opinion, the 3,071 acre tract is entirely free from any
legally meaningful designation as an "Indian Reservation". The 1929'
1949' 1965 and 1975 enactments of the Texas legislature were no more
effective to constitute it an "Indian Reservation" than they were to
so constitute the 1.280 acre tract. See Attorney General Opinion
Mu-49 (1979). It follows that to theextent the Texas Parks and
Wildlife Department would otherwise be empowered to enforce provisions
of the Texas Parka and Wildlife Code within the confines of the
p. 74
I’ ,
Mr. Charles D. Travis - Page 11 (JM-17)
"Alabama-Coushatta Indian Reservation" it is not precluded from doing
so by virtue of a claim that it is an "Indian reservation." Parks and
Wild. Code 1287.001. To the extent that prior opinions of this office
are inconsistent with the foregoing, they are overruled.
SUMMARY
To the extent the Texas Parks and Wildlife
Department would otherwise be empowered to enforce
provisions of the Texas Parka and Wildlife Code
within the confines of the "Alabama-Coushatta
Indian Reservation," it is not precluded from
doing so by virtue of a claim that it is an
"Indian Reservation."
Very ruly yours
J & h
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Eva Loutzenhiser
Jim Moellinger
Bruce Youngblood
p. 75