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 

o n 1 8 l newmr ein 6 tin 

4 ia n blood le ~q ulx-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 

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 eleocion en4 the last 85.x 
‘_ 

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 

hold e reoelvt ehowina that said ~011 tax we&e. wI4 

before the flret 4ap~Gf ysb&ary next preoeQi@ euoh 

4l4otIon. . . ," (Empheeie oure) 

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-one and 

sixty yeare, reeldeutwithin this State on the first 

day of Dmuery of each par (Indlane not 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-one ia4 sixty year8 who 

melded In t h! 8 Wate on the firet day of,Jenuary precsdlng 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. 

* 8 U.S.C.A. 8 9; State ‘c. Kemp, 78 Pati< (Z4) (Su$&~~. Of 

io&a)i TrujIllo v. 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 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 attained the age of twenty-one yeere, aa4 hat4 reel4ed in the 

State of 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 of 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 etatutee. 

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 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, Inoludlng thoeo 

bound to aarvlor for 8 tera of yeera, an4 l rcludlag 

Indiane not texad, three-rifthe of 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 inccrae without 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, sxoluding Indians not taxed. . . .* 

i 

. 

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” 

a8 r0iiow63 
7 

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 exar01~44 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 tmrltorla1 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 ordinary 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 of puplla80, resmbllng that of .a ward to his guardian. Indlane 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 oontalning 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 
8 

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. 

375, 378, wherein the court mid: 

*In dealarihg the basis on which representation 

in the lower branch of the Congress and direct taxation 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 

aounted for repreaentatlon, and In the computation for 

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 outaLdd 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 opinion 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 
9 

Honorable M. D. EIperaon, Page 6 

authority of the United states under the power aonferred 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 implier 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 Constltution 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 citizenship. 

An Indian who has eevered his tribal relations, who 

dose lot live upon a rsaarvatlon and is not a ward of the Federal governmsnt , and therefore is not subjeot to the exclusive 

authority of 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 olassifiaatlon 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 
f 

Honorable M. 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 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 

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 

to dlsouss your aeoond queatfon, 

ZCS IBBB 

iou, it beoomee unnecessary 

Yours very truly 

ATTORNlFP DEHERAL OF TBXAS 

BY 

i 

APPROVEDOCT 9, 1940 

. 

ATTORNEY GENERAL OF TMAS