                                  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
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 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




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