                       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    ‘,
