                       The Attorney               General         of Texas
                                         August    23,   1979
MARK WHITE
Attorney General


                   Honorable William P. Hobby                Opinion No. -MW-49
                   Chairman, Legislative Budget Board
                   Box 12666, Capitol Station                Re: Authority of Texas Indian
                   Austin, Texas 767ll                       Commission to assist non+rsewa-
                                                             ticm Indiana
?01cun~.suiN2al    Honorable D. It. Torn” Dher
OalNs. TX. 72202
2W7424244          Chairman, State Affairs Committee
                   House of Re~tatiVes
                   Austin, Texas 76769

                   Gentlemen:

                         You ask several questions about the authority of the Texas Indian
                   Commknion to assist the Traditional Kickapoo Indii and intertribal Indii
                   organizations.     Article 54212, V.T.C.S., gives the commission certain
                   responsibilities and powers with respect to the Alabamaaushatta   and the
                   Tigua htdian Reservations. The 65th Legislature enacted Senate Bill 166,
                   which added the following provision to article 54212:

                                  Sec. ilk (a) The Traditional Kickapoo Indians of
                                Texas are recognized as a Texas Indian tribe.
                                  (b) The commission shall assist the Traditional
                                 Kickapoo Indii    and the intertribal Indii organixa-
                                tions chartered in this state in applying for and
                                managing, joiitly with .the commission, federal
                                programs and funds secured from the federal govern-
                                ment or private sources for thepurpose of improving
                                health, education, and housing standards of these
                                Jndians or increasing their economic capabilities
                                   (c) The commission may seek the cooperation of
                                local and state agencies in adminiierhtg programs or
                                funds covered by Subsection (b) of this section.

                   Acts 1977, 65th Leg., ch. 399, S 2, at 1090.

                        Lieutenant Governor Hobby asks if the 1977 amendment allows the
                   Texas Indian Commission to exercise the same powers and carry out the
                   same responsibilities on behalf of the Traditional Kickapoo Tribe and the
Honorable William P. Hobby
Honorable D. R. “Tom” Uher      -   Page Two     (Nl+4g)



intertribal organizations (non-reservation Indian community action groups) as those set out
for the Alabama-Coushatta and Tigua tribes. Specifically, he asks (l) If the statute, as
amended, constitutes preexisting law on which state appropriations to the Kickapoo and
intertribal organizations may be based, and (2) if the Texas Indian Commission may enter.
into contracts on their behalf. Representative Uher asks whether     appropriation of state
money to “non-Texas Indians” is permitted under the Constitution. We need only address
the constitutionality of section HA in light of the federal equal protection clause. U.S.
Const., amend. XIV.

      The federal authority to enact legislation singling out tribal Indians derives from, the
power of Congrew to regulate commerce with the Indian tribes, U.S. Constitution, art. I,
9 6, CL 3, from the treaty power, k& article II, S 2, CL 2, and from the federal trusteeship
over Indian tribes established by the Indian Nonintercourse Act, 25 U.S.C.              s 177.
Worcester v. Georgia, 31 U.S. 515 (1632); Cherokee Nation v. Georgia, 30 U.S. l(l83U; Joint
?‘
mrIb                                                       528 P.2d 370 (lst Cir.       lm
Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 4l8 F.
Supp. 798 (D&I. 1976). As a result of this paramount federal authority, Congress may

           enact legislation singling out tribal Indians,.legislation   that might
           otherwise be constitutifxmlly offensive.

Washington v. Yakima Indian Nation, 58 L.Kdfd 740 (l979). In upholding a Bureau of
Indian Affairs employment preference for tribal Indians, the Supreme Court has said that

           this preference does not constitute ‘racial dIcriminaticn.* Indeed,
           hit is not even a ‘racial preference. Rather, it is an employment
           criterion reasonably designed to further the cause of Indian self-
           government.

Morton v. Mancari, 4l7 U.S. 535, 554-55 (1974). Since the special treatment was “tied
rationally to the fulfillment of Congress’ unique obligation toward the Indians,” it did not
constitute invkiious racial discrimination.

      The Supreme Court has emphasized, however. that states ?io not enjoy this same
unique relationship with Indian.%” WashI*on v. Yakima Indian Nation, susu         A state
may enact legblation sInglIna out tribal Indians onIv when authormed to do so bv the
fed&I gove&ment. Po.$er ;. P or 189 U.S. 325 4903). State v. Dibble, 62 U.< 366
p8irn\mte      laws bene
                       + ittmg ederal recognized Indians); cf. Joint Tribal Council of
        quoddy Tribe v. Morton, s.         The AlabamaCoushatta and TIgua tribes have
been specifically recognized by federal law. 25 U.S.C. S 721-28; P.L. 90-287 (1968). But
neither the Traditional Kickapoo Tribe nor the intertribal organizations have been
accorded distinct and separate recognition, either by Congress or by the federal Bureau of
Indian Affairs.

       The state may not, in the absence of federal authorization, enact. laws benefitting
these Indians, and since there has been no federal authorization in this instance, section
1lA is unconstitutional on its face.
.




    Honorable William P. Hobby
    Honorable D. OR.“Tom” Uher      -   Page Three tNI+49 1



           Such a construction does not mean, however, that the State of Texas is powerless to
    assist either the Traditional Kickapoos or the intertribal organizations.          It is well
    established, after all, that Indians who live apart from their tribes are subject to the laws
    of the state in which they reside. United States v. Waller, 243 U.S. 452 (19171;,E” parte
    Ploumoy, 312 S.W.2d 488 (Tex. 1958). Such legislation shot&i be drafted, initially, to
    obviate the contention that it provides state benefits to Indian tribes or organizations not
    recognized by federal law or regulation and therefore, preempts the federal power to deal
    exclusively with Indians. Second the legislation should attempt to avoid the allegation
    that it discriminates in favor of Indian tribes or individuals, and thus runs afoul of the
    constitutional guarantee of equal protection. In the absence of federal authorization for
    the state to deal with these Indians, any program which provides them benefits should be
    designed and administered so that the availability of benefits Is not limited to members of
    particular racial or ethnic groups.

          In view of our determination that section llA Is invalid, we need not answer your
    other questions

                                          SUMMARY

               In the absence of federal authorization, the Texas legislature may
               not provide special benefits for Traditional Kickapoo Indians and
               members of intertribal councils.

                                             %ytrxg


                                                 MARK     WHITE
                                                 Attorney General of Texas

    JOHN W. FAINTER, JR.
    Fiwt Ass&ant Attorney General

    TED L. HARTLEY
    Executive Assistant AttorneyGeneral

    Prepared by Susan Garrison
    and Rick Gilpin
    Assistant Attorneys General

    APPROVED:
    OPINION COMMITTEE

    C. Robert Heath, Chairman
    David B. Brooks




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.   ,.   .




         Honorable William P. Hobby
         Honorable D. R. Tom” Uher    -   Page Four (MW-49 1



         Susan Garrison
         Rick Gilpin
         Eva Lcutzenhiser
         William G Reid
         Bruce Youngblood




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