February 3, 

### 1966

Mr. Walter W. Broemer, Superintendent Alabama-Coushatta Indian Reservation Livingston,Texans

Dear Mr. Broemer: OpinionNo. C-593
Re: Whether the AlabamaCoushatta Indian Tribal Members can create a PublicHouslng Authority as a separate corporate entity to which the Commission for IndianAffairs and the Alabama-Coushatta Indian Tribal Council could make a forty-year lease of State Trust Land to develop a low-rent housing project.
Your letter of January 11, 1966, requesting our opinion relative to the above captionedmatter reads, in part, as follows:

'In reference to Opinion No. C-520, we have proceeded inmaking applicationwith the PublicHousing Administration for a Public Housing Project on the .IndianReservation. The PublicHousing Administration finds that they cannotprovide the necessary funds for low-renthousing because the Texas Commission for IndianAffairs has the power to issue bonds for a period of only twenty-fiveyears. Low-rent housing projects require forty-year bonds. 'Thereforewe would like to request the opinion as follows:
"Canthe Alabama-Coushatta Indian Tribal Members create a PublicHousing Authority as a separate corporate entity to which the Texas Commission for IndianAffairs and the AlabamaCoushatta Indian Tribal Council couldmake a

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. forty-year lease of State T;ust Land todevelop 3 low-renthousing project,
In answering this question, it is necessary'toreview certain legislativeand congressional enactments. For a more exhaustivehistorical summation, No. WW-43 datedMarch 5, 1957. seeAttorney General's Opinion

By an Act dated February 3, 1854 (4 Gammel 68) the State of Texas provided funds and authority for the purchase of 1,280 acres of land for the Alabama Indians to be used by that tribe as a home. The Commissioners appointedunder this Act did arrange for the.purchaseand conveyance to the tribe of Alabama Indians of several tracts of land, and the deeds from the several grantors specificallymade reference to theAct of 1854. Thus to accuratelvdetermine the nature of the estateconveved.we must construe the deeds and the Act together.

Section 3 of 1854 Act provides, inpart, as follows: .andthat said Indians shallnot allen,'lLase,ren .,le

terwise dispose of said land or any part thereof to any personwhatsoever. And should the.Stafe of Texas hereafterprovide a home for said tribe of Indians, and settle them thereon, then the said twelve hundred and eighty acres of land,with its improvem$nts, shallbecome the property of the State. (Emphasisadded)
From the quoted Section of the Act, it is apparent that the Indiansreceived less than a fee simpleestate in the lands. There are specificrestrictions imposedon the Indians, which bar any conveyance or lease by them of this land or any part thereof,and further their possession and enjoyment of the lands are dependentupon the Legislature as evidencedby the quoted language. The reversionary interest is in the State of Texas and should the Legislature see fit toprovidea lawful procedure for leasing these lands, itcould do so.

In 1928, the IndianReservation was enlargedwhen an adjacent tract of 3,071 acres was purchasedby the United States "in trust for the Alabama and Coushatta Indiansof Texas." Under Public Law 627, Acts of 83rd Congress, 1954, 68 Stat. 768, 25 U.S.C.A., Sets. 721 et. seq., the Federal Governmentwas authorized to deed said tract to the State of Texas, to be held by it "intrust for the benefit of the Alabamaand Coushatta

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Tribes of Texas, subject to such conditions regardingmanagement and use as the State of Texasmay prescribe and the disposition of such lands shallbe subject to aooroval of a majority of the adult members of the Alabama and Coushatta Tribes of Texas." (Emphasis added.) Thus Congress terminated Federal supervision over the tribe. adoption of PublicLaw 627, the ConcurrentResolution No. 31 ~~' .Inanticipation of the Texas (Acts Legislature adopted Senate 1953, R.S.,~

p. 1078) authorizing the Governor to accept on behalf.of the State a transfer of the trust responsibilitiesof the United States respecting the lands and otherassets of said tribes, and providing further:

"That'theGovernor is authorized to designate the Sta<ies shall rest, and the agency so designated shallhave authoritv to oromulgate rules and regulations for the administration of the trust and the protection of the beneficial interestsof the Indians in such lands and other assets." (Emphasisadded) The Board for Texas State Hospitals and Special Schools was designated by GovernorAllen Shivers as the agency to administer the trust.

Section 2.of Article 1174b, Vernon's Civil Statutes, provides in part: -

"

. . .EffectiveSeptember control and management of, and 1, 1949, the all rights, incident thereto construction privileges, powers, and duties including building, design and of the Texas State Hospitals and Special Schools which are now vested in, and exercised by the State Board of Control shallbe transferred to, vested in, and exercisedby the Board for the Texas,,StateHospitals and Special Schools,

‘

. .Section 3 of Article 3174b,Vernon's Civil Statutes, provides:~'Section 3. The term 'TexasState Hospitals and Special Schools'as used in this Art shal~l~ mean . . .TheAlabama Coushattl Indian Reservation, Livingston, Texas
. . ,.and all other institutions

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heretofore or hereafter referred to as 'eleemosyyary institutions,'

or 'hospitalsand special schools.

. . .

. House Bill No. 1096, Acts 59th Legislature, 1965, Ch. 279, p. 552, codified as Article 54212, Vernon's Civil Statutes,which creates the Commission for IndianAffairs, provides as follows in Section 8:

"Section 8. All powers,duties, and functions with respect to the supervision,management, :. and control of the Alabama-CoushattaIndianReservation,previously vested In the Board of Texas State Hdspitalsand Special Schools;and all appropriated balances,property, personnel,and recordsused by the Board in conjuctionwith suchpowers, duties, and functions are transferredto the Commission for Indian Affairs. Section 14 of House Bill No. 1096 provides:

sion that 'Section 14. All bonds issuedby the Tribal Council shallmature seriallyor otherwise not more than 25 years from the date of issuance,

. . ,II (Emphasisadded). Section 15 of House~BillNo. 1096 provides:

contained in this the Commissionhav “Sent~ on 15. _-__-_._ -__ Subject to the restrictions

act, the Tribal Council and e completediscretion in fixing the ftrm, conditions, and details of the bonds;

. . . (Emphasisadded). Any discussion of thepowers and duties of the Commisfor IndianAffairs would not be completewithout stating the Commissionmust have expressauthority to issue bonds and other negotiable securities, and thls 1s not a power tnat may be implied. In this connection, in Lasater v. Lopes, 110 Tex. 179, 217 S.W. 373, 376 (lglg),the Supreme Court said:

. "Without special authority,a court charged with the administration of the business affairs of a county is without the power to issue negotiable securities,depriving the county of true defenses against the original creditor. It is not a power to be implied. It does not existunless expressly conferredby law. Such
-2865-,

Mr. Walter W. Broemer, page ?,(C- 5%)

is the established doctrine in this State, and has been from an early time." added) (Emphasis

As set forth In Attorney General's Opinion C-520, the control and management of the affairs and property of eleemosynary Institutions established by law were vested in the Board for Texas State Hospitals and Special Schools. Control and management of building construction on the Alabama-CoushattaReservation was vested in the Board for Texas State Hospitals and Special Schools by'virtue of Section 2 of Article 3174b. Section 8 of House Bill No, 1096 transfers control andmanagement of building construction to theCommission for IndianAffairs as the Commission's primary responsibility is the development of the human and economic resources of the Indian Reservation.

It is our opinion that the express authority to issue public bonds and other negotiable securitiesby the Commission is governed by Sections 13, 14, 15 and 16 of House Bill No. 1096. Section 14 of Hou~se Bill No, 1096 specifically states the maturity of all bonds issued is to be not more than twenty-five years from the date of issuance. The,Commission'spower does not exist unless expressly conferredby law. The Commissionmust operate within the framework of the express authority to issuebonds and cannot do indirectlywhat it may not do directly. The Tribal Council may issue revenue bonds or any other evidence of indebtedness only after having obtained the written approval of the Commission. Therefore, the Tribal Members cannot create a Public Housing Authority as a separate corporate entity to which the Commission and the Tribal Council couldmake a forty-year lease of State Trust Land to develop a low-renthousing project.
SUMMARY The Alabama-Coushatta IndianTribal Members cannot create a Public Housing Authority as a separate corporate entity to which the Commission for Indian Affairs and the Alabama-Coushatta Indian Tribal Members couldmake a forty-year lease of State Trust Land to develop a low-renthousing project. Very truly yours, WAGGONER CARR Attorney General

AM:ra:mkh By: m m;;;t-, Alan Minter Assistant -2866-Mr. Walter W. Broemer, page 

### 6 (C- 593)

APPROVED: OPINION COMMITTEE W. V.'Geppert, Chairman Pat Bailey Arthur Sandlin Ben Harrison Malcolm Quick APPROVED FOR THE'ATTORNEY GENERAL BY: T. B. Wright

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