Case Information
*1 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~ate Library, contains a comprehensive history of the Indians in Polka County, 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 .Alabamas and 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 Deed Records of Polk County, Texas, the State 432-3, 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 p. 100. The 1930 census shows 230 Indians then in 80. 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.n the Indian ":;!Tribes resident 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 'bklahoma Territory 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'e are 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 oft the 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 t or county in which such person of-
h 1 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) '70 members of an Indian tribe qucstioncd the ri,ght of the <yovernmcnt to enforce Selective Training Scrvicc ay;ninnt them on the ground that they were not citizens OC the 1Jnited States. 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 ,tribal or 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.ed six 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;gc the Tribal rolntionship of Indians in the Unitod States. it was not clear that it was applicable to citizens born after its passay:o and fear was exp,rEZZd that it vras limited to non-citizen Indians born within the territorial limits of the llnitod Stntcs who wore liviny; on thr. nf- foctive d~ate omc: net and nho by .iEnore made citizens of th6 United Ztntos. The ConSmssional purpo~o orgxc%n (b) wnc to nake clonr that 311ch ppornonc are born citizen:: of the United ::tntcr,." (Em- phnr,is addod)
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,ision and'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 Ignited Z'tntes clt- 1r:cns thoroof, ~1s lntarputed by the Su- preme Court of the United States in l!nited states V. ?iong Kim 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, ;Gocretnry of 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. ':'e find 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 .oxempt from 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'rqo 6 (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 Unite dStatcs, who were
that is, were subject to taxation laws of the State of which thev Y 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,ower conforred~upon Congress . in reference 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) were intended by Article 2959
Obviously, if it 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 ,signifies a class-, ification-,of Indians which does not now exist, and spe- cially so‘in Texas, it is apparent that the use of that term in'.Articles 7046 and 2959 is now meaningless, re- gardless of whether such Indians are within or without a tribal Secs.~ 1, 2, Art. VI, Texas Const. reservation. Arts. 2954, 2955, 2960, V. C. S.
In view of,~the foregoing we are of the opinion 'that the Alabsma and Coshatti Indians in Polk County are eligible voters in llexas to &he. same extent as members of any other race. Those between the ages of:21 and 60 who 60 no’t come within other general exemptions must have paid poll .taxes the 'same as other voters.
Alabama aid Coshatti Indians a&e &igible ti0 the same extent Voters in eleCtiOnS in,TeXaS ati members of any other race. Those between 21 and 60,and nb,t otherwise, exempt from the ~~011 tax must have paid. the ssme as required of other Voters. ,’ Yours’ very truly, ATTORNEY GEX@& OF TEXAS