OFFICE OF THE AlTORNEY GENERAL OF TEXAS

Honorable IL. D. PPureon aount~ Attarnry Lamar couB*y Furl*, T8sa8

IOur l*tter 0 OQ~OJI 

## rror thi8 you **a8** follo*8r 0, MQM888 a 1088l quoetionr etakd b?

9960 of the Indlea In True #dloaed to Iota
on 18 l newm re6

in tin 4i a n **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 ArtiolaVI of the Coaetitutlan of Zexalr poorida in pert a0 follower

*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 eleocionen4 the last 85.x‘

_ HonorableM. 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 aubjeotto peg a poll tax under the law8 of the Stats of Taxes ehell hare peld eeid tax before offeringto rots at any dleotion in thie &ate 

### and hold e reoelvt ehowinathat said ~011 tax we&e. wI4 before the flret 4ap~Gf ysb&ary next preoeQi@ euoh 4l4otIon.

. . ," (Empheeieoure) Art1010 7046, Revise4 OIvIl Statutes of Trxae, provides In part a8 follower

*PoLl Tax. - There ehallbe lari44 end oolleotsd from every prreon between the age+ of twenty-oneand sixty yeare, reeldeutwithin this State on the first day of Dmuery of each par (Indlanenot taxe4;and 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 of Tmae, follove 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-oneia4 sixty year8 who melded In t

h!8 Wate on the firet day of,Jenuaryprecsdlng Its levy, Indianenot 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 territoriallie&t8 of the United Stats6 are declared to be citizen8of the United Wetee. * 8 U.S.C.A. 8 9; State ‘c. Kemp, 78 Pati< (Z4) (Su$&~~. Of io&a)i TrujIllov. Prinos, 78 Pac. (rJ4)~14!5 (BuP. Ot."of 84~ 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 govsrtienteo far a8 either pereonal or propertyrights are oooo4ra48.

We aeeume that the eubjeot Indian8 are qualIfIed eleotore,that 18, are oltizene of the Uafted Statee, here attained the age of twenty-oneyeere, aa4 hat4 reel4ed in the State of Texas and within the diatriotor oounty the rsquimd period of time.

### 6

Honorable )A.

D. Rmereon, Wge 3

At first blush tha proper oonstruotlon of the word8 *Indianenot 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 oontrolllngforce of whioh.wIll**IWBiiWSt** itself in arrivingat ths proper oonetruotionof thaee etat**utee.** The term nXndIanenot texodv ha8 alwaye appoarod In the etatutee 1svyInga 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 portionedamong the esverel etetaewhloh mey be iaeluded within this Union, ecoordl to their reepeot114 numbare,whioh shall ba d&e .a nod by edding to the whole number of Sree pereone, Inoludlngthoeo bound to aarvlor for 8 tera of yeera, an4 

### l rcludlag Indiane not texad, three-riftheof all other persone. 11

. . . 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 inccraewithout epportlonment

by tha 16th Amendment.

lower 8aotIon 2 of tha 14th Amsndmant reads in part a8 fol-

~RepreeantetIvae

shall be apportioned among the eeveral atatea aooording to their reepaotil4 numbers, oounting the whole number of pereons In eeoh stats, sxoludingIndians not taxed.

. . .*

i . In the oelebratadoaee of Elk v. Wilkins, 112 U. S.

94 (deoidedRotamber a, 1884),Mr. Juatioe (Iray, In dalIvarIng the majority opinion,discueee4tha term *Indiananot taxad” a8 r0iiow63

### 7

Flonoreble

bl. D. ?Xmerson,

Page 4

*Under tha Constitutionof tha United Statse, as originallyeetabllahsd, ‘Indiansnot taxed* wara exoluded from the pereoneacccrding to whore numbrre representatives

and direct taxes were apportioned emow the several etatee;and Congresshad en4 exar01~44 the power to regulate oommeroewith tha Indian trlbea, end the member8 thereor,whether within or without the bomtiai-ies of one of the etatoeof the Union. The Indian tribce, being wIthIn the tmrltorla1 1ImIte of tha Unite4 Statee, w4r4 not, strictly epeeklng,foreign 6tateaJbut the were alien netlone, 4ietlac t politIcel commuuitles, wi! th whom the Unltod Statesmight end habItuellydid deal, es they thought fit, either through trsetlee made by the Prrrident en4 Ssnate, or throughnote of Congrrae in the ordinary rorme of legislation. Tha mambors of thoee trike owed Iama4iataallaglanoe to thalr revere1 trlbee, en4 were not part of the psopls of the UnIted Stetee.- They ware In e dependent oondltion,e etete of puplla80, resmbllng that of .a ward to his guardian. Indlane end their property, 4s4raptfrom 

## taxation by treaty or etmtutr of the UnitoQ States, 00~14 not bo texod by any etata.
. . .O Thlr exemptionof tribe1 Indlene from Stets taxation haa oonnlstantlylnrn 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 reetrlotionIn 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 generalgovernmentupon 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 Chootewen4 Chiokeshew InQIeneec werdr of the UnItod Steter,own a lsrge em6 of segr4gatoQ an4 unallot44 lend8 oontalning valueblr coal depoeite, whIoh are not subject to texetlonby the etatr. Tiger t. Weetern Inl4atmsnt CO., 221 U. S. 286, 310, 312; I& part4 Webb, 225 U. S. 663, 684.99

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HonorableMB.

D. mereon, Page 5

The aonaeptlonqf the term vIndlansnot taxed” ae meaning Indian8who are not subject to taxation by the State is found in the aase of United States v. Kagama, 118 U. S. 375, 378, wherein the court mid:

*In dealarihgthe basis on which representation in the lower branch of the Congressand direct taxation should be apportioned,It was fixed that it should be aoaordingto 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 aounted for repreaentatlon, and In the computationfor 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& Dependentlargely for their daily food. Dapendentfor their polltioalrights. They owe no allegianceto the 8tat0, and reoeive from thsnr no proteati0n.v The aontrolling

oonalderation

is whether the rtatue of the Indian tenders hlm rubjeat to taxationby the State. In. U. 8. v. Porter, 33 Fad. (3d) 365,it w8a said:

“The perronalproperty deaarlbedin the oomplaint Is owned and held by an Indian, out&de of an Indian reaervatlon,

and we peroelveno reasonwhy it ia not subjectto taxationby the State.
. . . He liver outaLdd of tha reeervattlon, under the proteotionof the State, and It would be going a long way to hold that he is under no obligationto obntrlbutsto the expenees of the State - governrimnt.*
Mr. yuatice Harlan, In deliveringthe dlaaent5.Wopinion in Elk v. Wllklns, aupra, defines vIndlansnot taxed” ae follows: r vIadiananot taxed were those who held tribal relations,and, therefore,were not subjeot to the authorityo$ any State and were subject only to the

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HonorableM. D. EIperaon, Page 6

authorityof the United states under the power aonferred upon Congress in referonoato Indian trfber in this oountry.” iiecogniziw,theretore,as we must, that the term “Indiananot taxed” hlatorloallysignifiesa classification of Indians, it is apparent that ths use of the term in Articles 7046 and 2985 representsan intended claaalfiaation, and implier that there were Indiana who were, or might subsequently become, subjeat to taxation by the &tats of their residence. Cbrlouely,ifs

it were intelded 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 evlnoeda purpose to includethoose

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 dependentupon the ownershipby the citizen of any personalor real propertyaubjeat to texatfon. It le nat a tax upon the exercise of the right or suffr@ge. It is a tax authorizedby Section 1 of Article VIII of the Constltution of Texas, which says, -The Le&l slsturemay impose a poll tax*, and may be deeorlbedas a tax upon the enjoymentby a.. citizsn of Texas of the privilegesand franchiseaof citizenship.
An Indianwho has eevered his tribal relations,who dose lot live upon a rsaarvatlonand is not a ward of the Federal governmsnt

, and therefore is not subjeot to the exclusive authorityof the Federal government, has beoomemerged with the masa of the American people, and ia aubjeot, aa other oitizens, to the juriediation or the State. He has lost hle olassifiaatlon aa an “Indian not taxed* and haa beaonm an Indian taxed in the aams manher aa all other o:tizensof the State. As auah, he 16 subject,when a oltiaen of Texan, to the payment of the constitutiona and statutorypoll 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 Indianwho has not severed !&I?. tribal rslationrj,

and who IS living ii#en a governmentreservationaef HonorableM. D. Emerson, Page 7

a ward of the government,retaina his etatus a6 an “Indian not taxed” and is exanpt rrom the payment of e poll tax. We have assumed,however, that the aubjsct Indiansof your requestdo not rall wlthln this olaralfioatlon.

We have oareiullyaonaidereda 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 propertytax in Texas 18 alma abject to a poll tax. Having aonoludedthat this rormer opinion is in error, for the reasona etated herein, it in exprerslyoverruled.

In view oi the foreaoim dlsouseionand m awer to the first queatlonpropounded-by to dlsouss your aeoond queatfon,

ZCSIBBB iou, it beoomee unnecessary

Yours very truly ATTORNlFP

DEHERAL OF TBXAS

BY

i APPROVEDOCT 9, 1940

. ATTORNEYGENERALOF TMAS