                   THEATTORNEYGENERAL
                             OF   TEXAS
                            AUSTXN    I,.TEXAS
PRICE   DANIEL
ATTORNEY m3Nlm.u
                          August 23, 1948

       Ron. J. S. Hollernan          Opinion MO. V-664
       District Attorney
       Montgomery County             Re:   Eligibility of Indians
       Conroe, Texas                       to vote without paying
                                           poll tax.
       Dear Sil.:

                 We refer to your letters and inquiry by tele-
       phone in which you submit the following:
                   "Can Indian citizens of the State of
              Texas, between the ages of 21 and 60 years
              of age, vote without paying a poll tax?
                   "The Indians under consideration live
              on the Indian Reservation located in Polk
              County, Texas. It is my understandinS that
              they are supported by both the State and
              the Federal Government."
                 The Southwestern Historical Quarterly, Vol-
       ume 36, page 83, et seq., in the Archives Division of
       the St~ateLibrary, contains a comprehensive history of
       the Indians in PolkaCounty, from which WC Sather the
       following:
                 Near the Big Thicket in Polk County, Texas,
       11~0s~a small remnant of the Alibimu and Koasattis
       Indians--commonly known as .Alabamasand Coshattis. The
       two tribes are related. Shortly before the battle of
       San Jacinto the Alabamas moved into Louisiana as the
       army and people were fleeing eastward. The Coshattis
       remained in their village on the Trinity. Tho Alabsmas
       returnod to their village after tho war was over. Nei-
       ther the Alabamas nor Coshattls took any part in the
       war. p. 92.
                 In 1840 the Texas Congress granted two leagues
       of land on the Trinity to each of the tribes, all of
       which was taken from them by white settlers. The Indians
       became landless and homeless wanderers. p. 95.
Hon. J. S. Rollernan- Pago 2        (V-664)


          After the annexation of Texas, although the
United States assumed responsibility for the Indians
within the State, these bands of Alabsmas and Coshat-
tie remained under the protection of the State govern-
ment. p. 96.
          Evidenced by a deed recorded in Rook D,pagea
432-3, Deed Records of Polk County, Texas, the State
purchased 1280 acres of land in Polk County in 1854,
which *as conveyed to the Indians tax free and,inalien-
able. Three hundred and thirty Alabama Indians were
settled on the land in 1854 and 1855. p. 98. About
ten Coshattis settled in Polk County. The remainder of
the tribe was scattered around Polk and Liberty Coun-'
ties, disorganized and broken in spirit. The whole num-
ber of thattribe in Texas at that time did not exceed
80.  p. 100. The 1930 census shows 230 Indians then in
Polk County.
          In 1928,the United States purchased 3071 acres
of land in Polk County adjoining their original preserve
to be held in trust for the,Alabama Indians of Texas~.
Vol. 88, page x)9, Deed Records, Polk County.
          The United States undertook to pay $2000.00
per year for the schooling of said Indians. The fore-
going poses the question as to what constitutes an "In-'
dianReservation". It is common knowledge that "Indian
Reservations" are areas which were reserved to Indians.
in treaties between the United States and the Indian
tribes. The United States did not'own any land in Texas
to "reserve" for Indian tribes.
           April 29, 1846, the Legislature of Texas adopt-
i.:ed:a
      concurrent resolution which reads in part:.
                “We recognize no title ,i.nthe Indian
         ":;!Tribesresident within the limits of the State
         ,?to any portion of the soil thereof; and we
         '~reco&zze na right in the government of the
           United Stateato make any treaty of limits
          'with the Indian tribes."
          Prior to June 16, 1906, Indian Territory and
'bklahomaTerritory existed as territories of the United..
States without status as states. On that date said ter-
&tories were consolidated as a single unit in the name
of;,&lahoma and by that name admitted to statehood.
Hon. J. S. Uolleman - Page 3   (V-664)


!'!ith
     the exception of the small,remnant of the Alabsmas
and Coshattis, the Toxaa Indians were moved to the lands
reserved for them in said,territories and in New Mexico,
which was also such a territory at the time the Indians
were placed in Reservations by the United States.
          L'eare informed by the State Department of
Eduoation that the Alabama and Coshatti Indians have
availed themselves of the Texas school laws and organ-
ixed~lndian Independent School District in Polk County;
they enumerated 113 scholastics for the presently ensu-
ing school term. $6215.00 of tho State available school
fund was apportioned to tho district. $1.80 per capita
of tho 113 scholastics is applied to school administra-
tion in Polk County.
          The Alabsma and,Coshatti Indians in Polk Coun-
ty were all born in Polk County, Texas.
          Section 1 of Article VI of the Texas Constitu-
tion enumerates the classes of persons'who are prohibit-
ed from voting inelections in Texas. Indians are not
prohibited.
          Section 2 of said Article VI oftthe Texas Con-
stitution specifies classes who may voter The perti-
nent part of it reads:
                                 to none of the fora-
                             , who shall have attain-
     ed the age of twenty-one years and who shall be
     a citizen of the United States and who shall
     ze,r'e;;;I'd in thi State one year next preced-
     lng an eleotlon andsthe last six months within
      h   1      t or county in which such person of-
     fers to vote, shall be deemed a qualified elec-
     tor: ~. . . and orovided further. that any voter
     who7is subject 50 pay a poll tax under the laws
     of the State of Texas shall have paid said tax
     before offering to vote at any election in this
     State and hold a receipt showing that said poll
     tax was paid before the first day of February
     next preceding such election . . ~. And this
     provision of the Constitution shall be self-
     enacting without the necessity of further leg-
     islation.? (%phasis added)
                                              .   a




Hon. J. S. !iollemnn- Pa6e 4   ('I-6G4)


          In Totus v. Unltod States 39 Fed. Supp. 7
(1941) '70members of an Indian tribe qucstioncd the
ri,ghtof the <yovernmcntto enforce Selective Training
Scrvicc ay;ninntthem on the ground that they were not
citizens OC the 1JnitedStates. In thnt rcplard,the
Court said:
         "Any doubt which might have existed
    conccrninl:the cltizcnship of Indians or
    members of Indian tribes in this country
    was set at rest by the adoption of the
    Rationality Code of 1940. That act pro-
    vided, 8 U.S.C.A. S 601:
         "'The following shall be nationals
    and citizens of the United States at
    birth: 3:c +

         "l(b) A person born In the United
    States to a member of an Indian, Eskimo,
    Aleutian, or other aboriginal tribe: Pro-
    vided/that the.grantinC of cItizenship'
    under thi::subsection shnll not in any
    manncr impair or otherwise affect the
    right of such person to ,tribalor other
    property.!
          "The main controversy as to the citi-
     zenship status of Indians arose out of the
     opinion of the Supreme Court of the 'IJnited
     States in thc.case Elk v. ?Xlklns; 112 U.S.
     94, 5 S. Ct. 41, 43, 28 L. Ed. 643,,decided~
     November 3, 1884. hit wan there hold that
     a person born in the United States to mem-
     bers of an Indian Tribe had not acquired
     citizenship of the United,Statcs at birth
     not hnvin(:boon born 'subject to the juris-
     diction thcrcof,' within the meaning of the
     pourteenth Amcndmant. Since that time the
    ,ConSress pass.edsix Acts conferring citi-
     zonship upon IndI,ans. The Act of June 2#
     1924, 43 Stat. 253, S U.S.C.A. B,3, was the
     last of these and it provided: 'All non-
     citizen Indians born within the territorial
     limits of the United States be, end they
     are hereby, declared to be citizens of the
     United States.1
IIon.J. ::.ilollr:m::n
                    - Page 5   (V-GG4)


         "Xncc this act did not purport to
    cllan;gcthe Tribal rolntionship of Indians
    in the Unitod States. it was not clear
    that it was applicable to citizens born
    after its passay:oand fear was exp,rEZZd
    that it vraslimited to non-citizen Indians
    born within the territorial limits of the
    llnitod Stntcs who wore liviny;on thr.nf-
    foctive d~ateomc:    net and nho by .iEnore
    made citizens of th6 United Ztntos. The
    ConSmssional purpo~o orgxc%n         (b)
    wnc to nake clonr that 311chppornoncare
    born citizen::of the United ::tntcr,."(Em-
    phnr,isaddod)
          In ReSan v. Kin& 49 Fed. Supp. 222, It was
held that a child born in the United States of alien
parontnze is a citizen of the United, States. On ap-
peal the Circuit Court sustained the dec,isionand'in
134 Federal Reporter, 2nd, 413 said:
         "On tho authority of the Pourteenth
    Amendment to the Constitution, g 1, making
    all p?rsonn born in the IgnitedZ'tntesclt-
    1r:cnsthoroof, ~1slntarputed by the Su-
    preme Court of the United States in l!nited
    states V. ?iongKim Ark, 169 U. S. 649, 10
    S. Ct. 456,'42 L. Zd. 890, and a long line
    of decisions, including,the recent decision
    in Perkins, ;Gocretnryof Labor at al. v.
    Elg., 307 U.S. 325, 59 S. Ct., 884, 83 L.
    Ed. 1320, the judgment of dismissal, 49 I".
    Supp. 222, is affirmed." Certiorari was
    denied of the U. S. Supreme Court.
          Ye are of the opinion that tho Alabama and
Coshattl Indians in Polk County are citizens of the
United States and residents of the State of Toxns with-
in tho moaning of Section 2 of Article VI of the State
Constitution. ':'efind nothing in the assistance given
them by the State or Federal Covernmcnt which renders
them "paupers" or otherwise disqualified to vote.
          The next question is whether such Indians be-
twoen 21 and SO are .oxemptfrom payinS poll taxes on ac-:
count of Article 2959, V.~C.S.,the portinent portion of
which reads as follows:
,   . .   .




          IIon.J. S. Ilollcmnn- I'rqo6    (V-664)


                   "A poll tax shall bc colloctod from
              every person bctwocn the ages of twcnty-
              ono (21) and sixty (GO) years who resided
              in this Atate on the first day of January
              procoding it3 levy, Indinns not taxed,
              person3 insane, blind, deaf or dumb, those
              who have 103t a hand or foot, those perm-
              anently dioablod, and all disabled veterans
              of foreign war3, whore such disability is
              forty,,(40$)por cent or more, oxceptod.,,
              . . .
                    The term "Indians not taxed" was defined by the
          United States Supreme Court in Elk v. Y:ilkins,112 U. S.
          94 where it said:
                   "Indians and their property, exempt
              from taxation by treaty or statute of the
              United Statos. cou   no   e taxed by any
              State."      _
                      In a dissontinp,opinion in that case it is
          said:
                       "This,13 apparent from that clause
               of article I, section,3, which requires,
               in the apportionment of representatives
               and direct taxes among the several States
               'according to their respective numbers,'
               the exclusion of 'Indians not taxed.1
               This implies that there were at that time,
               in the UnitedStatcs,              who were
                          that is, were subject to taxation
                  Y
                         laws of the State of which thev
               were residents. Indians not taxed we&
               those who held tribal relations and,
               theroforo, were not subject .to the auth-
               ority of any State and were subject only
               to the authority of the United States
               under    tha p,owerconforred~upon Congress
               . reference
               in               to Indian Tribes in this
               country.     The  same provision is preserved
               in. tile 14th Amentlmcnt;for, now, as at
               tho adoption of tho Constitution, Indian3
               in the aeveral,States, who are taxed by
               their laws, are counted in e,stablishing
               the basis of representation in Congress."
               (Emphasis added)
     Hon. J; S. IIolleman- Page 7   (V-664)


               Obviously, if it were intended by Article 2959
     to exempt~all Indians from the payment of a poll tax in-
.'   Texas, thexoeption   would have provided %dians   ex-
     ceptea," rather than "Indians not tax@&  excepted."
               Recognizing; therefore,,as we.must, that the
     tens "Indians not taxed" historically ,signifiesa class-,
     ification-,ofIndians which does not now exist, and spe-
     cially so‘in Texas, it is apparent that the use of that
     term in'.Articles7046 and 2959 is now meaningless, re-
     gardless of whether such Indians are within or without
     a tribal reservation.  Secs.~1, 2, Art. VI, Texas Const.
     Arts. 2954, 2955, 2960, V. C. S.
                In view of,~theforegoing we are of the opinion
     'that the Alabsma and Coshatti Indians in Polk County are
     eligible voters in llexasto &he. same extent as members
     of any other race. Those between the ages of:21 and 60
     who 60 no’tcome within other general exemptions must
     have paid poll .taxesthe 'same as other voters.


               Alabama aid Coshatti Indians a&e &igible
          Voters in eleCtiOnS in,TeXaS ti0 the same extent
          atimembers of any other race.
               Those between 21 and 60,and nb,totherwise,
          exempt from the ~~011 tax must have paid. the
          ssme as required of other Voters. ,’
                                         Yours’very truly,
                                     ATTORNEY GEX@&    OF TEXAS
