Case Information
*1 OFFICE OF THE AlTORNEY GENERAL OF TEXAS Honorable IL. D. PPureon
aount~ Attarnry
Lamar couB*y Furl*, T8sa8 IOur l*tter 0 0, MQM888 a 1088l OQ~OJI rror thi8 etakd b? quoetionr
you a8 follo*8r
9960 of the Indlea In True #dloaed to Iota on 18 l newmre6 in tin 4ian blood le ~qulx-84 OP UBQU thee* (Itatut.8, preor ie roqrrirra to o uch mption fropl poll %rff" of artfols Vx OS the Oonetitufioa of Toxae aeeae ot pareQn8 from voting la msar, but Iadlm within the prohibitlonr.
on 8 of Artiola VI of the Coaetitutlan of Zexalr in pert a0 follower poorida
*EVW]r P6P8On 8Ubj4#Ot t0 ~00110 Of the iOZ?WgOing 4¶.aquallfioatlane, who shall have attained the a&m Of twenty-one /bare, an4 vtho shall ba a oitisen oi tb Unit*4 States an4 who 8hNd.l harr se8lQad in thie Eltat* one year next prsoe4ing an eleocion en4 the last 85.x *2 ‘_ Honorable M. D. II$yreon, page $3
month8 within the 4Ietrlct or county in whioh euoh person offers to vote, shall be deemed a quelltied eleotor) . . . An4 provldod further, that any rotor who is aubjeot to peg a poll tax under the law8 of the Stats of Taxes ehell hare peld eeid tax before offering to rots at any dleotion in thie &ate and ehowina that said ~011 tax we&e. wI4 hold e reoelvt before the flret 4ap~Gf ysb&ary next preoeQi@ euoh 4l4otIon. . . ," (Empheeie oure)
Art1010 7046, Revise4 OIvIl Statutes of Trxae, pro- vides In part a8 follower
*PoLl Tax. - There ehallbe lari44 end oolleotsd from every prreon between the age+ of twenty-one and sixty yeare, reeldeutwithin this State on the first of each par (Indlane not taxe4;and day of Dmuery pereons insen4, blIn4, &leaf or dumb, or thoee who have lost one hen4 or toot, or are permanently dinablrb; 4xoepte4) ,an annual poll tax. .-, ." Artlole 2956, RsrLes4 Civil Statutes fol- of Tmae,
love Seetioa e of Artiole VXof the Conetltutlon, en4 Artlols 2969, Reriesd Civil Statutea, provide8 In pert: -A poll tax &all 'be~aolleoted from avery preen
bstweon the a ee of twenty-one ia4 sixty year8 who melded In t h! 8 Wate on the firet day of,Jenuary pre- csdlng Its levy, Indiane not tared, petieone Inaaae, blind, 4eef or dumb, and thoes who heto loet a hand or foot, or peneanently dIeab1ed, eroepted. . . .*
"All Indians born within the territorial lie&t8 of the United Stats6 are declared to be citizen8 of the United Wetee. io&a)i TrujIllo v. Prinos, 78 Pac. (rJ4)~14!5 (BuP. Ot."of 84~ [*] U.S.C.A. [8] 8 9; State ‘c. 78 Pati< Kemp, (Z4) (Su$&~~. Of M4xlco 8 Denleonr, Eltat4, iWl3 Pea. 617, (@up. Ot. ol ArkaM). And th 8 is true regardlees of whether en fndian Ie etIllL-Under' the.guard1anehi.p of the Units4 State8 govsrtient eo far a8 either pereonal or property rights are oooo4ra48.
We aeeume that the eubjeot Indian8 are qualIfIed eleotore, that 18, are oltizene of the Uafted Statee, here at- tained the age of twenty-one yeere, aa4 hat4 reel4ed in the State Texas and within the diatriot or oounty the rsquimd period of time.
6 Honorable )A. D. Rmereon, Wge [3]
At first blush tha proper oonstruotlon the word8 *Indiane not taxed . . . axoaptad” wculd eaem to be, perhaps, that no Indian in Texas is eubjeot to a poll tax.
vi4 ar4 oompalled, however,, after deeper l tuQy, to give to the term WulIane not tax44” as 4mployed In ArtIolee 7046 and 2959, its hImtorIoa1 meaning an4 ei&nItloenom ee a olaesificatlon, the oontrolllng force of whioh.wIll IWBiiWSt itself in arriving at ths proper oonetruotion of thaee etat- utee.
The term nXndIane not texodv ha8 alwaye appoarod In the etatutee 1svyIng a poll tax In Teros.
It ie amployed In Artlola I, Seotlon 2, II 3, of tha United States Conetitutlon, ee follower
uRepresantativee end dlreot taxae ehall be ap portioned among the esverel etetae whloh mey be ia- eluded Union, ecoordl this within [114] .a d&e numbare, whioh shall ba edding nod by reepeot- to their to the whole number of Sree pereone, Inoludlng thoeo bound to aarvlor for 8 tera of yeera, an4 l rcludlag Indiane not texad, three-rifthe of all other persone. . . .
This claumwae, OS couree, amended 68 to the mode of apportlonmant of rapreeentetivee among the several etatee by tha 14th Amendmant en& ee to taxed on inccrae without ep- portlonment by tha 16th Amendment.
8aotIon 2 of tha 14th Amsndmant reads in part a8 fol- lower
~RepreeantetIvae shall be apportioned among the eeveral atatea to their reepaotil4 aooording numbers, oounting the whole number of pereons In eeoh stats, sxoluding Indians not taxed. . . .*
In the oelebratad oaee of Elk v. Wilkins, 112 U. S. 94 (deoided Rotamber a, 1884), Mr. Juatioe (Iray, In dalIvarIng the majority opinion, discueee4 tha term *Indiana not taxad” i a8 r0iiow63
Flonoreble bl. D. ?Xmerson, Page 4
*Under tha Constitution of tha United Statse, as originally eetabllahsd, ‘Indians not taxed* wara exoluded from the pereone acccrding to whore numbrre representatives and direct taxes were apportioned emow the several etatee; and Congress had en4 exar- 01~44 the power to regulate oommeroe with tha Indian trlbea, end the member8 thereor, whether within or without the bomtiai-ies of one of the etatoe of the Union. The Indian tribce, being wIthIn the tmrltor- la1 1ImIte of tha Unite4 Statee, w4r4 not, strictly epeeklng, foreign 6tateaJ but the were alien netlone, 4ietlac t politIcel commuuitles, wi! th whom the Unltod States might end habItuelly did deal, es they thought fit, either through trsetlee made by the Prrrident en4 Ssnate, or through note of Congrrae in the ordin- ary rorme of legislation. Tha mambors of thoee trike owed Iama4iata allaglanoe to thalr revere1 trlbee, en4 were not part of the psopls of the UnIted Stetee.- They ware In e dependent oondltion, e etete pupll- a80, resmbllng that of .a ward to his guardian. In- dlane end their property, 4s4rapt from taxation by treaty or etmtutr of the UnitoQ States, 00~14 not bo texod by any etata. . .O
Thlr exemption of tribe1 Indlene from Stets taxation haa oonnlstantly lnrn upheld by the oourte o? our lend. In state Y. Caapbell, 63 Pinn. SS4, 55 H. W. 553, It ne ealdr
Them 18 no Qroleion of the Fedora1 oourts that e State orru, even In the ebaenor of a reetrlotion In a treaty or in the Act 64mIttIug the Stat0 Into tha UnIw, sxtand its lewa, olthmr c1~11 or orialnal, ovar tribal Tna+Aas realding under the o,are of the general government upon e reeervetlcm set epart by It ror the t purpoe6.*
In Chow-taw & Gulf R. R. 1. Xarrieon, ES5 U, 8. me,
296, the 8uprame Court eelts
"In the region formarly knovrn ea Indian Tarrltorp C- now within the state of Oklahome -- the Chootew en4 Chiokeshew InQIene ec werdr of the UnItod Steter, own a lsrge em6 of segr4gatoQ an4 unallot44 lend8 oontaln- ing valueblr coal depoeite, whIoh are not subject to texetlon by the etatr. Tiger t. Weetern Inl4atmsnt CO., 221 U. S. 286, 310, 312; I& part4 Webb, 225 U. S. 663, 684.99
Honorable MB. D. mereon, Page 5
The aonaeptlon qf the term vIndlans not taxed” ae meaning Indian8 who are not subject to taxation by the State is found in the aase of United States v. Kagama, 118 U. S. 378, wherein the court mid:
375,
*In dealarihg the basis on which representation in the lower branch of the Congress and direct taxa- tion should be apportioned, It was fixed that it should be aoaording to mmbora, excluding Indians not taxed, rhiah, of coursa, exluded nearly all of that raae, but whloh meant that if there were such within a State aa were taxed to support the government, they rhould be for repreaentatlon, and In the computation for aounted dire& tamelevied by the United Stat8s.v Further, in thla case, the Supreme Court said; “These Indian tribea are the wards of the nation.
They are aomiunitlee dependent on the United State& Dependent largely for their daily food. Dapendent for their polltioal rights. They owe no allegiance to the 8tat0, and reoeive from thsnr no proteati0n.v The aontrolling oonalderation is whether the rtatue of the Indian tenders hlm rubjeat to taxation by the State. In. U. 8. v. Porter, 33 Fad. (3d) 365,it w8a said:
“The perronal property deaarlbed in the oomplaint Is owned and held by an Indian, out&de of an Indian reaervatlon, and we peroelve no reason why it ia not subject to taxation by the State. . . . He liver out- aLdd of tha reeervattlon, under the proteotion of the State, and It would be going a long way to hold that he is under no obligation to obntrlbuts to the expenees of the State - governrimnt.*
Mr. yuatice Harlan, In delivering the dlaaent5.W opin- ion in Elk v. Wllklns, aupra, defines vIndlans not taxed” ae follows:
r vIadiana not taxed were those who held tribal
relations, and, therefore, were not subjeot to the authority o$ any State and were subject only to the Honorable M. D. EIperaon, Page 6
authority of the United states under the power aon- ferred upon Congress in referonoa to Indian trfber in this oountry.”
iiecogniziw, theretore, as we must, that the term “Indiana not taxed” hlatorloally signifies a classification of Indians, it is apparent that ths use of the term in Articles 7046 and 2985 represents an intended claaalfiaation, and im- plier that there were Indiana who were, or might subsequently become, subjeat to taxation by the &tats of their residence.
Cbrlouely, ifs it were i ntelded to exempt all Indiana from the payment oi a poll tax In Texas, the except%i would have provided “Indiana ,... excepted*, rather than “Indiana not trxrd . . . . exorpted*.
Tha .exoluslon of Indians not taxed evlnoed a purpose to include thoose who were subjeat to being taxed by reason of their change in statue.
A poll tax, of oourae, la not a tar upon property. Its lsvy la not dependent upon the ownership by the citizen of any personal or real property aubjeat to texatfon. It le nat a tax upon the exercise of the right or suffr@ge. It is a tax authorized by Section 1 of Article VIII of the Constltu- tion of Texas, which says, -The Le&l slsture may impose a poll tax*, and may be deeorlbed as a tax upon the enjoyment by a.. citizsn of Texas of the privileges and franchisea of citizen- ship.
An Indian who has eevered his tribal relations, who dose lot live upon a rsaarvatlon and is not a ward of the Fed- eral governmsnt , and therefore is not subjeot to the exclusive authority the Federal government, has beoome merged with the masa of the American people, and ia aub jeot, aa other oitizens, to the juriediation or the State. He has lost hle olassifiaa- tlon aa an “Indian not taxed* and haa beaonm an Indian taxed in the aams manher aa all other o:tizens of the State. As auah, he 16 subject, when a oltiaen of Texan, to the payment of the constitutiona and statutory poll tax, and to the same reqtiirrap;ents with referenoe to the payment of came before he may be allowed to vote In any eleotion in the State.
of course, an Indian who has not severed !&I?. tribal rslationrj, and who IS living ii#en a government reservation ae *7 Honorable M. D. Emerson, Page 7
a ward of the government, retaina his a6 an “Indian etatus not taxed” and is exanpt rrom the payment of e poll tax.
We have assumed, however, that the aubjsct Indians of your request do not rall wlthln this olaralfioatlon.
We have oareiully aonaidered a letter opinion of this Department dated Deoember 30, 1936 (Vol. 384, p. 52, Letter Oplnlom) whlah holds that an Indian in Texan who ren- &err no property for taxation is not subject to the payment ot a poll tax, whereas, one who pays a property tax in Texas 18 alma abject to a poll tax. Having aonoluded that this f rormer opinion is in error, for the reasona etated herein, it
in exprersly overruled.
In view oi the foreaoim dl souseion and m awer to the first queatlon propounded-by iou, it beoomee unnecessary to dlsouss your aeoond queatfon,
Yours very truly ATTORNlFP DEHERAL OF TBXAS BY i
ZCS IBBB APPROVEDOCT 9, 1940
ATTORNEY GENERAL OF TMAS