TEEATTORNEYGENERAL
OF TEXAS
WLL WILSON March 5, 1957
ATTORNEY GENERAI.
Hon. C .‘H. Cavness Opinion lo. WW 43
State Auditor
Capitol Station Rer Legality of legislative ap-
Au&in, Texas propriations for beneflt oi
the Alabama Coushatta Indian
Reservation In Polk County,
Dear Sir: and related questions.
letter
Your of February 7, 1957 presents aertaln
queatlons regarding the Alabama Coushatta Indian Re.serva-
tlon in Polk County. Broadly stated, you inquire aa to
the legality of state appropriations for the benefit o?
a,aid Reservation as to the effect of certain phases of
Public Law 627,b3rdCongress, terminating Federal auper-
vision over aald tribe, as to the rl ht of the state to
erect certain improvements on the 1280 acre portion OS
the Reservation bought by the state for the Indians, in
1054,and aa to the proper disposal of funds from timber
sales on said tract.
Before attempting to answer your several ques-
tions apeclflcally, we deem it appropriate to.revlew the
history OS Indlan leglslatlon in Texas.
Wlthln less than a year after the battle of
San Jacinto, the Republic of Texas euacted its first
Indian aid bill. The Aat of December 5, 1836,1
Oammlls Laws of Texas 1113, required President Sam
Houaton to raise a Calvary force of 280 men dud to
erect necessary block houaes, forts and trading housea
to prevent Indian depredations. He was further dlreoted
to “enter Into such negotiations and treaties as In blo
opinion may secure peace to the frontlera; and that he
have power to appolnt agents to reside amongst the
Indians and that he be authorized to distribute amongst
the different tribes such presents aa he may deem neoes-
rary, not exceed in amount $20,000.”
Ron. c. B. Oavness pys 2 OQiniOn no. m 43
Interestlngly‘~enough, 5 days later an A& was
ssea authorizing the president to borrow 820,000 for
PpuPchasing ammunition and munitions of war.’ 1 Cammel
1136.
The Joint Reaolutlon of’ November 7, 1838, 2
dammel 3, appropriated another $20,000 to the equipftlng
of an army of 250 smn under General Thomas J. Rusk to
quell the lnsumectlon now.exlstlng among the IndLans
and Mexlcans.n This Act was followed by others at
froqueht Intervals tn an effort to hold off the depre-
datlow o? hostile tribes.
In the meantlae it appears that a department
of Indfam Aftafrs was set t@, which, appropriately
enough, ren In the red * and a Joint Resolution of Jaauexy
15, 1839 appropriated 62,000 to-pay off “arrears a”
in said department for’ the year 1838. 2 Gammel r 5.
At an early date, the plan was inaugurated o?
placing the Indiana-‘in segregated areas or “reservatlolu*,
away from white settlements, in an effort to Keep the
peaae. The Aot of’ January 14, 1840, 2 ffammel 371, re-
qullad President Mlrabeau Lamar to have surveyed two :
leagues OP land, lnaludlng the “Coahattee” Indian
Village, and 2 leagues of land, Including the fenced in
village of the Alabama tribe, for the “exclusive uae
and benefit of said tribes of Indiana, until othervlse
provided for by Ia+. The pmdaent van also ordered
to have aurvegsd a 30 mile square on the front%er, ah
vblch friendly Indiana vere to be plaaed aa ooon as
olraumatanoes wot.ila permit. An “Indian Agent for the
Coshattee and Alabama tribes” was to be appointed and
“$2,000 in p=mlasolg notiesW was appmprlated themior.
On February 5, 1840 an Act was passed appra-
prlatlng not exceeding $1,000 for “supporting the Caddo
Indians while their arms vere detained from them”. 2
Oammel 417. The genepal appropplatlon bill o? Januam 6,
1843 contained this item: “For Indlah purposes --
$lo,ooo.” 2 Barnmel 828.
The Aot of January 14, 1843 created a “BWeeU
of Indian Affairs” attached to the War Department and
.
Ron. C-. H. Cavnear Pye 3 0plllion lo. WY 43
provided for eppOM%BQt’ of four Indian Agents Snd one
Superintendent D The President of the Republic was given
“power to make such arrangement8 and regulations with
the several. tribes OS Indiana as he may deem expedient
for the establishment and preservation of peace, and
the promotion of the aommon welfare.” Commlasloners
vere given certain instructions In making treaties with
the tribe8 and certain restrlatlons were imposed on
trade with the IndLans. 2 Gammel 842.
On FebruapJ 3, 1854, an Act vaa passed author-
ltl~g the gFaRt out of the QubliC domain or the puFchase
by the State for the Alabama Indians o? the land ln-
volved in your request, being 1280,acrea la Polk and/or
Tyler Counties “as a home ior the sald tribe of Indians.”
4 @anmel 68. A prlae not to exceed $2 an acre was
authorieed and warranty doeds wean to be taken “convey-
ing the saw to said tribe of Indians.n The Act forbade
alienating or leasing the land and psovlded for a re-
version of the land to the State in the event another
home was provided by the State.
patterned after the Act just wntloned and
oloselg followi its terms was the Act of August 30,
1856 granting a 7 40 acre scservation to the “Coshattee”
tribe in Llbetiy, Polk or Tyler Counties. 4 Oammel 503.‘.
Later the Ret of February $6, 1.858 appPoprlated $5,000
for the removal of said tribe to such a plaae as the
governor’and the chiefs could agree onp with the former
reservation reverttng to the State. 4 6ammel 1154.
Other naematlons vere being QrOViaea for
in the 1850’s. The Act of February 6, 1854 authoz%Zed
the Federal government to select up to 12 leagues of
Texas land, divided into not over 3 squares, for the estab-
lishment of Federal reservations for the Indlan tribes
of Texas. 3 Gammel 1495. The Act of Bebruary 4, 1856
authorized the Federal oovernment to set apart 5
leagues4ve$e: it Pecos for reservations in that
area. D The Federa Government appears
to have been dilatory about sett : ng up reservat$ns
wust of the Pecos, and the Act of January 29; 1858 urged
prompt federal action inasmuch as the roving Indians la
the area were cotsmlttiryl depredatioqs agalnat the white
.,
Ion. C. H. Cavnoab pae*4 opi;hlon Ilo. ti i3
settlers. 4 Oaatmei 1148., Thb Agt,of Janua
declared that the ,I7 leagues aboye dwntlone“aakz
abandoned aa reaervatloas ,and, had reverted to the atat&
and they were opened for settlement aa a part of the
public aomaln. 8 oynmel 376.
‘By Act o? Deae@ber 30, 1861, the o?~~O of
“Indlen Agent of the Alabama sad Cooahattle (ale)
Indiane” ~88 amated with a aala= of 400 per 8nnum
and 4800 expanaoa. The agent vaa requt red to prowto
the latereata ottbatrlk. 5-1 541.
The Oeaerel Appnaprlation Bill ror the
1864-65 contained an ltemg 'for the Alabama, Co8r- ttoo
and Huaaogee Indians WC annum, #l,OOO*. 5
Tb Aat of Deaember 4, 1863 8Vqnlwd the Indian
for there trlbea to sake annual reporta, on
removal fxw dfflae. 5 Mamel 719.
During tM Civil Ifar, two bill8 we+ paaad
?or the relief of the To.nkaweJ tribe on the frontier.
#20,000 was ap roprlated ior their actual aw~ort on
December 16 18 63, apparent1 aa a aillta
5 danmel 73b. ~n%ay 28, 18&, an Aat dft%%?’
loyalty of this tribe and the fmot oi the doatruotloa
of half of them bg the enemyI tha Fmtd&er kln6
winderera, end authorlaed the governor to aottle thaa
on the pub110 domain. 438,000 a year for tvo pas-0 nq
jpproprlatoq fijr tlyir support. 5 -1 &O.
Durlry tk la& FS’ or the Texar ~OQUbtiO, 8
%-oat of Poaoo, Frl~nd&lp~od CORFO~O”,d8Wd OoWbor
9 18d vaa oatrred II&O botvoon %bNRepubllo md m
Chlc$, K000hi0, Waco, Caddo,.Am-dah-lcah,‘Iotio,
DolawWo,bharare,Cherokee, Lip8nandTab-vab-lprm
trlbor . 2 Ganel ~1191. Th8 tnaty bopefull rooitod
“The towhavk #hall be burled, and no more glood lQ-
pear in the path ktwen them, now -de vhlto. The
W8at Spirit vi11 look wlth’delllplt upon tblr fr%oad*
ahlp, and till fmma In aa@r ‘upon *kiP eamityo*
Demite the bri#ht hoper r0r lartlng poaoo
voloed in the treaty tb ~~17 lawa of Taxa@ -flat
tlmt Indian depradatioua vere a f8lrlf oonstaat mblO@
UQ until about 1880. The let of Fobrpaly 12, 1880
.ri, ‘:, <’ :., . _
mu. c 0 H. cavners mge 5 opinion lo, WV 43
8trtboriaed raiui* a volunteer fame of 300 m.n to mwoh
the Bnsos River againrt Indllrn miden. Q Omnl 638.
After Texas became a state, the legiel~tun, cent maf
pleaa to Waehlngton for protection and ia&errib~. Se8
3 Camel 523, 6 dame1 79, 415, 1051 and 8 @awe1 1489.
The Joint Resolution of niwll 12, 1871 Save a mati
of one caPbIlls to each of certala peraom for ktlllal; 4
Indians fn mpellirag a mid. 6 Oammel 1058. Tlmadot
of lamb 13, 1875 gave certain relief to pm-eaptorr
drLven off thslr holleateada by hostile Indians. 8
ffaemel k79.
One aptem used to keep dovn Indian depreda- t
tlons vaa to’locate the Indian8 on the Vroatier”. Hite
rettleaetis we= kept well baalc from tlw, frontier; and,
to keep the frrdiena from comlnej Into the settlement6 to
trade, trsdl~@ pot&r vem #et UP on the Indian mmw8.
Indiaa ~$8 lrem instmoted, 80 far au possible, to
pawent T dllana from co8klrq into sattle8u8ats. 2 Gam81
1138. T!W trem also to endeavor “to pmwent an7
irFuption f sic) on the frontier settlements*. Conpeso
WEHI petltloaad in ttm Aot of M?mh 20, 1848 to estab-
llrb a obaln of alllta~ port8 aa a buffer between the
rbite irontier 8ettlewnt.s end the tndians. ‘3 Oama 206.
Bveatualljr, this oaa done. 1956-57 Paxas Almimic p- 67.
TM Joint Reeolution of Sqmber 5, 1850
oWla+ed to Uarhi5gten that “wild Indlanr had inl-
%wo ,Tesar fwea 0-r rtatea, niii.a(l qnd piwkdw-
Fy t& izlontlw rettlemente. Deuaad wu mad. for tkir ,
nl ewidthat ruoh hmlgmatlon ba stopmd. 3 @anmel
z? /
Particular thoz%~~ fn the sldee of' the settlera
uwe the Cmuambe :'aW #io~'.Didldtiii froim the lie. 'bill
lW4ervatlon In CW IiidlWi $dFrit6B"JI,:-nwf blclrah~;~@m
made frequent maids on the Texas frontier settlements.
In 1871 a joint reeolution requested Congress to move
them at least 150 milea from the fPontler. 6 Qammel 1054.
A similar resolution passed in 1873. 7 Barnmel681 a See
also Joint Resolution of 1879 protesting raids emanatiry
~PO# Ft. Sill arid Ft D Stanton against tkw Panhandle arm.’
8 @amI 1489. The Jo&at Resolution of April 4, 1871
md congress to OQOBup the Indian Comntry north of
T*u to aettlemmt and to organize mai& Into a state.
Xon. C. H. Came88 Pue 6 Opltilon lo. 43
.,.
This was doubtless in Important step liiadlng to,$he
eventual creation of the State of Oklahoma. 6 Our&l 1056.
Throughout thl8 tryltq period,"Ind&d hldr
resulted in the aapture of many prisoners from the.white
settlements. The early Texas laws are replete vlth ef-
forts to recover,thoae captlve8, chiefly by authoriglng
payment of ransom. 2 Cammel 712, 714, 767,$,825; 3 @ammel
1491; 5 Cammel 960; 6 @ammel 923; 940, .,”
Tax&t Indian legi8latlon for oome ‘keaaoa ap-
peam to have come to an abrupt halt about l@O. Alaoat,
nothing is found.Fn the le&lative poredi, I mpeolfi,-
oally dealing vlth Indiana f#m that date untpf,1 1927
when the Texas Senate adopted a IW8Olutlon that a. oalplttee
be appointed to investigate the velfam of the Alabama
Indiana and report babk at the next aebrion. Senate
Journal, 40th Leg., 1st C 3. 1927, p. 252. The Committee
report, dated Janua 16, 1929, ir printed In the Senate
$ournal, 41st Leg., 3 3. 1929, p. 760.
The Committee reported that they found the
Alabama tribe “and thh Cowhatta Indian8 vho .llve Pith
them” in a state of greet negleot and poverty. Their
poor economic hate, said ‘the omittee, ll8 l re8ult of
thetreatment they have raoeived at thd hand of the white.
hen who oaae and took from them their lrodr and dertreyed
the gaw that we8 bnoe plentiful in the woe8 betveiti the
8abim and Trlnlt Rivw8i $ho M&tow *ioh the Al&bama
and Coushatta Ind I an8 dlalmed, . .’ .”
The repoti raid “lnveatigation8 revealed that
this tribe haa rehilered outstand1 rervloer td the Repub-
lic of Texad end ,to the 8tate. Ch“ff ef Collta and Chtef
T~lpe were dwaneh frleadr of (kn8pal Sam Houston awl.&&
the Texas Revolution Bad render&d inValuable.assistanoe
to the Savloli of T&x48”. It was reoited that though tw
weiw citlxene ~Prlther of !?&a8 noF of the Conf’ederao !I the
.Alabamar had 2P.imen In the Confede#di.e Amy~, and aga n in
1918 they volunt&ered in large num XVI, belw rejected
because of “the peauliar relation8 Pp tbj.btire to the
Federal Ciovernment e” (~nd,&ana became Amai*io ii UitiseW
by the Act of Cot&~&8 or .Ju~ 2, 1924; .43 Stat. 253):,+ :‘~
Non. C. H. cavne6s Pue 7 Opinion Ho. wf 13
“The Alabama and Couahatta Indians of Polk
County, n the report oontinued, “are ward8 of the Matioh;
They are alao ward8 of the State. No group of oltlsena
can point with more pride to past services rendered t6
the Republic and to the State than can these Red Sklnr
of Texia p Big Thicket o It was the Coushatta Indians who
arslsted Sam Houston la the Revolution. Chief Colita
of the Coushatta Tribe slaughtered his OM cattle to
feed the 8tarvLng women and children who vexw fleeing
betox% the battle of San Jaointo. It wa6 Colita vho
c8rried the new8 of the victory to the border of Loulri-
8na 8nd brought the tired Texans baok to their homer.
The hLstory of this tribe Is rich %n aervloe rendezwd
to the immortal Rouaton . . . The ~gsponsibllity of oaring
for these citltena resta upon the State and upon the
nation.” (Emphaals added) +
The LeglslatUV responded to the awport by
plaolag an item in the depaptmental appropri8tlon bill
under the heading of “Eleeaoeynarg 1nstitut10n8” to
cover the salary of an agent and. a nume, dental aad F
medical work, “50 homes for Q88atea” cost1 15,000, ,!:',
and 26 miles of fencLng. Act8 41rt Leg., 1 r3-
C.S., Ch. 16 at 9. 484. Th8 ~rervation 18 looated
in an ama 17 mile8 east of Llvlngrton and 20 mile8
wart of Woodville in an area rlahl endowed +Ltb v-in
timber, madilr available for tb L lldlng of maLd -8.
R ular approprlationr have bow made for lib8 trik 01~0
13 9 end 8rw our%wntlf owriod a8 an %ter’~in tbo eDDro-
D?htiOX& fOF thD l)WSd fOCOh-8 atate HO89ikl8 JVd
S-la1 80hoOl8. See lots 54th Leg., R .S 0, 1~$&519,
at p. 1374'. The appropriation for the 18t
bienaha 1s 6!3,607.00 and for the second $ r@ ?,107.00.
Itr wording t a patterned after that for otbw inrtlto-
tlOM under 88id Board.
Early Te%os laws in many Pe8p*ota parallelad
Urrlted State8 Govwnment Act deal1 tith Indiaab. The
AOt Of C@RgPtbbsOf JULY 9 18 %? PPO2 &ed rOP a COWII~88~OMr
of Indian Affairs under the War Ceparttment . 4 ‘Stat* 564.
The Bureau headed by the commissioner is now under the
Secretary of the Lntepior. 25 USCA, Seas. 1 h 2. Federal
reservattolons for the Indian8 were areated in many pwtts
of the United Water. Some were created by Act of Con-
Eon. c . H. Cavaeee Page 8 Opinion lo. uw 43
green, some by Exeoutive order and some by treaties vlth
the tribes. 25 UBCA, Sec. 331. In 1871, Congiww die-
continued recognition of the tribes as Independent nation8
and decreed that no further "treaties" were,,,%o be made
with them. 25 USCA. Sec. 71.
These reservation8 were located on vacant Feder-
al lands. PrOVi8~On wa8 made for allotment of up to 80
aares of arable or 160 acre8 of grazing land in the reaer-
vation to each Indian. A preliminary patent wa8 granted
holding the land in trust for the partiaular Indian for
25 yeara, at the end of which time andther patent was
i8aUed to him conveying full fee eimple title, glvin(l
him the right to sell or dlspoae of the land ltl any wan
her saw fit. 25 u~cA, Sea. 348. At the end or such 25
year trust perlod, the allottee of the land wan *r) be
governed by the civil and criminal laws of the State the
saine as any other person. 25 USCA, Sec. 349. Over the
year8 the Federal Government haa erected schools and
hoapitala, given agriaultural assistance and vocational
tralnlng and In many other wags has endeavored to aon-
tribute to the welfare of the various tribes. See, for
example, 25 USCA, S&s. 452 and 471.
Very recently, congressional J.eglrlatloa ap-
pears to have headed la an entirely new direatioo. It
v8e heralded by the Passage on August 1, 1953 Of BOUe
Canctificnt Rerohtloa 108, 67 Stat. B 132, rh%ch etated:
“Wheream It lr the pollc or Congress, a8
rapidly as po8slble, to make the I ndians within the
territorial llmlts of the United States aubjeot to the
came Iavs and entitled to the same privileges and re-
sponslbllitler a8 are applicable to other critlzens of
the United States, to end their status a8 wards of the
United States, and to grant them all of the rights and
prerogatives pertalniag to American cltlzenshlp . o .“,
it was deolared “to be the 8eoIe of Congress that, at the
earliest pO8sible time, all of the Indian tribes and the
Lndlvldual members thereof looated within the etates ho?
Texas. . . ahould be freed from Federal aupervlaion and
oontrql and from all dlrabllltles and llmFtation8 speoWl-
tally l ppliaable to Indians . . . It 1~ further dealared
Bon. C, H. Came88 Page 9 Opinion 80. UU 43
to be the aenae of congreba that, upon the release or
such tribes and IndivLdual member8 thereof from such,
dlaab%llties and ll.mltatlone, all offioeR or the
Bureau of Indian Pffalrs In the State8 of s . . Telcaa. . .
and all other offices of the Bureau of Indian Affairs
whoae primary purpose was to serve any .Indlan tribe or
IndLvldual Indian freed from Federal aupervieton should
be abollahed.' The Resolution lnetmoted the beontary
of the Interior to Investigate and reoowend le~lalatlon
to aCcolPpli8h these purpoaea.
This resolution appear8 to be in line with the
pblloaophy of HoDorabte Glenn R. Errmone, preeent dom8%8oioo-
ir’ or Indlan AilaIm, whose appointment by the President
war made during the 8oath lmpledlately prior to the paaaage
kit the reaolutlon. See “Rota gLvl.ng the Indlana a Chance",
br Jame8, Danl.el. Readers Digest, Maroh, 199’7.
,-,.
The new policy MB Boon put Into erreot and *
number of acts have been passed terminating Federal auper-
vision over various tribes. 25 USCA, Seas. 564 et req.
The Aat or Awust 23, 1954 terminated such augervision
over "the Alabama and Coushetta Tribes, of TeXaa”. Pub110
&air 627, 68 Stat. 768, 25 USCA Seca. 721 et aeq.cIn lQe8
the Federal bovernmeat had purchased and taken a deed
*ln trurt ior the Alabama and Couahtta Todtiae t Texas”
to 3071 acmw in Polk Count * adjacent to t&e. 1@8 0 aore
@rohiled by the State -In 1B9, ea1az&n(r the reeervation
$0 4351 aorta. batd Public Law ,627 authorisbd the Eleere-
Mix7 0r:tb Intekior to oonvef the 3071 acre0 to the 8tate
81T&8r “ia trust for the biW8fit of the Indlaaa or the
Nabama and Couhatta Tribe8 of Tatal, subject to suoh
aaadltiona regardding maoagememt and uae aa the State of
T&a8 ay psweoribe and the dlapoaltion of such land!,
eliall be subject to approval of a majority of the adult
onnplr o? the Alabama #ad Couahatta Tribe8 of Texaa.’
The o~%glnal recorded deed from the Secretary of the
Interior la on file in the office of the Texaa~Seoretrrf
or btate. The lrct further provided that Federal Xud%alk
atatutar rhoold no longer be applloable to this tr%bO aBd
that "the laws 0r the several states shall apply to the
trfbo and it8 member8in the 6ame mannor as, they apply to
other oitisena or perrow tithilrith@r jwt8dtotlo&.?
Hen. c . H. c*vness Pyr 10 OPlalon lo. lIJ.&, ” -’
.;<
I -.
,
For a summary of Public Law 627 and its background use
the..Eououae Committee Report In U. 8. Code Congressional
and Administrative l@ews, 1954, pp. 3119 et seq.
In anticipation of the adoption of Public Law
627, the Legislature adopted Senate Conourrent Retioltitloa
go. 31 (Acts 1953, R.S. p. 1078) authorizing the Governor
to accept on behalf of the State the transfer of the
trust, coaditioned~on,consent of the tribe by apprqpriate
resolution, and further’ authorltlng the Governor to desig-
nate the State agency in which such trust ~rrtonstbllltlo~
Mall re&, vhich agency wall granted rule @$W.ng pomra
in connection with a&h trust. ‘:
The Joint liea,Olutiou of Co rem Of July 14
1956, 70 Stat. 531, 25 USCA, Sec. 30“&a, provides. for&a
2 year study by the Bureau of Indian AffaIra of the
‘program for transferring Indian children to pub110
schools.’ The Act of Augudt 3, 1956, 70 Stat. 986, pro-
vides fop vocatlodal training ?or Indlahs between 18,'an4
35 in recognlsed schoola and 3b million dollars a Jiir
is authorized to be ap roprkated t~herefor. Publio &a+~~l,
a provec? August 6, 195 8 ,’ 70 Stat. 1057, 25 USCAr bea.
4%3a, authorize8 the Secretary of the Interior’to aorivry
to Indian tribes, bands or groups Federal buildings aad
.
improvements located on their lands.
We have, reviewed at some length Federal and ”
State legislation dealing with Indians beqaure we feel
that your lnquirler, and particularly quemtlon Ho. 1,
must be answered in the light of historical perapeottve.
In your first question;’ you aak our oplnloo a#
to the legality of past and present legislative appropr%a-
tioaa for the afopvsaid tribe. We amy 61 the oplaloa that
such appropr&atlohl ,vcm and are’ valid and oonst~tufiiMm1.
The regulatioh aad irristanoe of IndIaa reaervatloaa. .&as
been regarded ai a proper goveriiBeoto1 fUnot:&bn riaqe the
days of the Republic. Indeed 1 tbai maFly deyti iti ma 8
matter of survival ltaelf. Ind f anr ', vere placed on reaerva-.
tiona, not for their ooavenlenoe hut for the: acctimoda-
tlim, oonvehleuoe and safety o? the wfrlte
Alabama Couabatta reservation Is the Ias+ I”Nian * The
reaerm-
tlon nmainLw In Texas. Beaauee the Act of 1854 forBida
.
Ion. C, H. cavnesa Pa&8 11 opiaio;r? No. ww 43
them to sell the land, they have been In a very real
semse under a compulsion to remain with the land. These
Indians, now numbering something over 400, formerly
roamed and claimed the vast domain from the Trinity to
the Sabine. The State placed them on a reserve of two
square miles of thicket.
We agree with the Senate Committee that theae
people, at least until the Legislature remover the re-
strictiona that hold said reservation intea: and prevent
It8 alienation, are wards of the state as well a8 the
nation. Beoause of such relationalp the Leglalature
has'and had the powar to appropriate funds for the benefit
of said reaarvatlon. There is no constl.tutlonaL provision
rpeciircally authorlzlng such, but neither is there on8
authorizing a State Orphans Home or many other eleemosjnary
W~f.tutiona wlllch regularly receive substantial. ,appromlat-
. The vallditg of appropriations to suoh eleemoafrmry
institutions would never be seriously challenged. They
ax% but mflectlona of the fundamental conaepta of an 8n-
lightened citlaenry who insist that this State ahaL1 look
after its own. It is a xwcognlzed concept.of' all alvlll~si3
nations to endeavor to foster the welfare of the aborQl.ta8
*hose lands they took, and to whom they ther8b;r ow8 a
8pecles of debt., Our supreme court haa said that '%8
unlveraal rule of aonstructlon la that leglrlattve md
exeautive interpz&atloaa of the organi law, aopukroed
la and lon& continued . . .
lnlng the validity of
'rex. 383, 40 Sew. 26 3?7$
the leglalatune and 8xeoutZve throwut tla8 entire b%%
ory of Te~4&8lrphold tk, legalit;f Of th888 ap Fopti8tkraao
It r0il0~8, thnmr0~, that v8 are or th8 apPIlion that
881~ 8~*) not ia violatlbn of Art. 3, Bee. 51 or of Art.
16, Sec. 6, of the Texas Conatltution, vhioh An aubatmae
rorbld approprlatlone for private prrporea.
Under the Ind%an Rear$anlsaflion Act bf 1934, 48
Stat. 984, 25 USCA Sea. 476, one or more Indian tribe8 re-
sidlag on the same reservation wel?d authorlsed to adopt
,a aonstitation and bylaws to be approved by the Sear8ttwr
of the Intcrrlor. On August 19, 1938 the Seorrtary ap-
&roved swh an inafrument theretofore a$opteU by the
Alnbua and Coushatta Tribes oi Tamkp~. You have fuP-
nlrhed w a oopy of this doouatmt. In many inntaMer
ulni approval by the Ssorstoq of the Intetiot
2 z&Jar aotloar.
Hon. C . H. Cavnars Page 12 Oplnlon Ilo.
WI 43
Sea e of Public Law 627 of 19!54, rupn (25
USCA, Seo.723 , which terminated Pedeml l~p a r ~la iOn
over the tribe, atated th8t “all powera of ‘the deoretbq
of the Interior Q 6 . to take, revlev, or approve any
action under the constitution and bylaw of the Alabm
yd8Coushatta Trlbes of Texas approved on August 19,
are termlnated~ Any pove~s aonierred upon
the t&e’by its oonatltutloa and bjlava that are lncoa-
alstent with the proflalona of thia Act are telrla&ted.
Such temlnatlon shell riot affect the power of the tribe
to take any action under Its conatitutlon and wl@va tlrrt
la conalatent with Seas. 721-728 of tblr title wltbeat
the participation of the SecretaPj . . . in ouch aatloa’.
Your second queatioa aaka vhat port&on of luoh
conatltutlon an& bylaws la aonalatent vlth Public Uw
627. It la our opinion that all d? said conatltutfoa and
bylava Is la heru~ony with said law and la atll$ la ?Ol?oO
except In those instancea vhemin approi?al.o? certain
acts by the 8ecretary o? the Interior la calted for. w
the apealfic term8 of such Act such approval ir no 1OtigeF
neaeaaary and la ao lobger a condition to the validity
of 6~ authorleed actlona. We underatand ln?omally th&t
the Indiana interpreted the Act aa deatrofillg the&r con-
atltitlon and bylava. we do not 80 interprrt tha Aat but
conalder such document In full force exaept aa above note4. ,
Public Law 627 oontaiged a pr~vlao tb&t “Luoh
trlbb lr authoriCed to QonYey to the State at Texm t)M
lands purchased for and deeded to the Alabama Indlana”
under the 1854Act,
Your third iiqulry ark8 three quertlona tith re-
iennce to thir provlalons
%I11 you?#leaae explain to ua the legal
aignlflcaoce of the ten8 ‘authorized to
convey’ aa tired in the above paragraph?
I? such conve ante war not Bade, as author-
iced, Is th& l tate of Twa the rightful
trustee of the 1280 aarea of land deeded
originally to the Alabama Indiana? Can
you detealne that such oonve~nce v8a w&e?*
,
. . .
Hon. C . It. Cavness Page 13 Opinion 100. 43
The Act of 1854 and the orFgFna1 deeds placed
title to said land In the tribe of the Alabama Indians.
By terms of the Act the land could not be sold. Public
Law 627 authorized a conveyance to the State to be exe-
cuted hg the Alabama and Couahatta trlbea. The said Act
treats 5he tvo tribes as one trlbt.. In any event, the
lacguage of the Act is not compulsory but leaves the
matter up to the dlscretlOn of the tribe. It la our
understand that such a conveyance was not in fact made.
Such being the case, the State is not a trustee of the
land, alnce it belongs to the Indiana.
Your fourth queetion inquires as to what right
tbe State has to ereat its office building, hospltal’and
llvlng quatiezs for vhlte employees on the 1280 acram.
While, as we have stated above, the State had the right
to make such expenditures, the Placing of such improve-
ments on the lands not owned by the State aould be proper-
1’ done only with the consent of the Indlan ovnera of
.- &e land express or implied We think it a fair aaaump-
tfon thai since these build&a were erected to benefit
the Indiana, and were, so far aa we know, erected vlthout
objection, at least an Lmplled consent wa8 given.
You state that reaentlg the Rural Electl?lcatlon
Adaiinistration cut some timber on the 1280 acres In order
through the reservation, and your fifth
as to what should be dons with pqoeeda
In the case of well, (‘hm. Cio..App.
1918, %rPor diem. ?.v.j . the Court aaldr
Wil~e it 1s true that ia genera1l.j regardad
#a pafl ,oP the realty, yet the owner ma~rby contrac~t con-
#fructively cause a severance, and for the purpose of a
$ytgage or sale convert Zt into personalty.” clttn(ll
authorities. /
Upon the timber belt&g cut, It beoame persoaalt~
&j~~6ould be aold by the tribe, With the proceed8 to be
Wed bJ the Indiana ior tribal, purposes. The land ,ie
o-4, w the Indians and the State would own no ,interest
& t@e .reaeipta from sales of cut timber. Under the oir-
cumstancea, such sale would not violate the statutory
~&Feint MaInat alienating the land.
. . .
Hon. C. Ii. Cavness Page 14 Opinion No. WH43
Ownership of the receipts aforesaid foll6ve
ownership of’ the land. In this conneotlon we note that
the original conveyanaes in 1854 and 1855 were to the
tribe of the Alabama Indians. The Conetltutlon and by-
laws of 1938,ado tea under Ghe Indian Reorganleatlon
Aot (48 Stat. 9847, appear to have combined the Alabamaa
a,rd Cousjmttm into one tribe under the name o? ‘Alabama
and Couahatta Tribes of Texas”, and they are so trusted
by Congress In Public Law 627 aforesaid.
SUMMARY
t
kurrent and past legialatlve appropriations
jfor the benellt of the Alabama Couahatta
’ ndian Reservation are legal and Bre ‘not
‘I:n violation of Art. 3; Seo. 51, and Ai%:
‘.il6, Sec. 6, of the Oonatltutlon of Texas.
e 1938 Constitution and Bylaws adopted
t?
. g the “Alabama, and Ooushatta Tribes of
~tiexas” are still in force, ‘exaept that
iapprcval by the Secretary of the Interior,
,o? tribal actions is no longer a pre-
irequisite to the valldltg of euch actiona. ‘~
Pub110 Lay 627, 83rd Congr&~s, authorizing
the Indiana to convey a 1280 acre portion
to the Stati, of Texas is permlaslve and,
not compulsory. 80 maoh conveyance has
been made. This 1280 acre traot still be-
longs” to the Indians, and the State’18 not
a trustee of such lana.~ Since the eald land,
belongs to the Indians,, improvements may be
placed thereon by the State only with the
consent of eaid ovne~rs. Proceeds of, the
sale of timber cut for a power line are
the property of the Indiana,’ to be used Sol,
tribal @n?poaee
A PPROVED
: Y+urf~‘ve* truly
OPINIOR COMMIti ” WILL WIISON
.AttoMxeyQenem1
H .Cg;ga;handler, ,
l52GzihJd
9 5. Arthur Sandlln
Aeaistant ‘,