TEEATTORNEYGENERAL 

OF TEXAS 

WLL WILSON 

ATTORNEY GENERAI. March 5, 1957 

Hon. C .‘H. Cavness 

State Auditor 

Capitol Station 

Au&in, Texas 

Opinion lo. WW 43 

Rer Legality of legislative appropriations for beneflt oi 

the Alabama Coushatta Indian 

Dear Sir: 

Reservation In Polk County, 

and related questions. 

Your letter of February 7, 1957 presents aertaln 

queatlons regarding the Alabama Coushatta Indian Re.servatlon in Polk County. Broadly stated, you inquire aa to 

the legality of state appropriations for the benefit o? 

a,aid Reservation as to the effect of certain phases of 

Public Law 627, b3rd Congress, terminating Federal aupervision over aald tribe, as to the rl ht of the state to 

erect certain improvements on the 12 8 0 acre portion OS 

the Reservation bought by the state for the Indians, in 

1054, and aa to the proper disposal of funds from timber 

sales on said tract. 

Before attempting to answer your several questions apeclflcally, we deem it appropriate to.revlew the 

history OS Indlan leglslatlon in Texas. 

Wlthln less than a year after the battle of 

San Jacinto, the Republic of Texas euacted its first 

Indian aid bill. The Aat of December 5, 1836, 1 

Oammlls Laws of Texas 1113, required President Sam 

Houaton to raise a Calvary force of 280 men dud to 

erect necessary block houaes, forts and trading housea 

to prevent Indian depredations. He was further dlreoted 

to “enter Into such negotiations and treaties as In blo 

opinion may secure peace to the frontlera; and that he 

have power to appolnt agents to reside amongst the 

Indians and that he be authorized to distribute amongst 

the different tribes such presents aa he may deem neoesrary, not exceed in amount $20,000.” 
Ron. c. B. Oavness pys 2 OQiniOn no. m 43 

Interestlngly‘~enough, 5 days later an A& was 

P ssea authorizing the president to borrow 8 20,000 for 

puPchasing ammunition and munitions of war.’ 1 Cammel 

1136. 

The Joint Reaolutlon of’ November 7, 1838, 2 

dammel 3, appropriated another $20,000 to the equipftlng 

of an army of 250 smn under General Thomas J. Rusk to 

quell the lnsumectlon now.exlstlng among the IndLans 

and Mexlcans.n This Act was followed by others at 

froqueht Intervals tn an effort to hold off the depredatlow o? hostile tribes. 

In the meantlae it appears that a department 

of Indfam Aftafrs was set t@, which, appropriately 

enough, ren In the red * and a Joint Resolution of Jaauexy 

15, 1839 appropriated 62,000 to-pay off “arrears a” 

in said department for’ the year 1838. 2 Gammel r 5. 

At an early date, the plan was inaugurated o? 

placing the Indiana-‘in segregated areas or “reservatlolu*, 

away from white settlements, in an effort to Keep the 

peaae. The Aot of’ January 14, 1840, 2 ffammel 371, requllad President Mlrabeau Lamar to have surveyed two : 

leagues OP land, lnaludlng the “Coahattee” Indian 

Village, and 2 leagues of land, Including the fenced in 

village of the Alabama tribe, for the “exclusive uae 

and benefit of said tribes of Indiana, until othervlse 

provided for by Ia+. The pmdaent van also ordered 

to have aurvegsd a 30 mile square on the front%er, ah 

vblch friendly Indiana vere to be plaaed aa ooon as 

olraumatanoes wot.ila permit. An “Indian Agent for the 

Coshattee and Alabama tribes” was to be appointed and 

“$2,000 in p=mlasolg notiesW was appmprlated themior. 

On February 5, 1840 an Act was passed appraprlatlng not exceeding $1,000 for “supporting the Caddo 

Indians while their arms vere detained from them”. 2 

Oammel 417. The genepal appropplatlon bill o? Januam 6, 

1843 contained this item: “For Indlah purposes -- 

$lo,ooo.” 2 Barnmel 828. 

The Aot of January 14, 1843 created a “BWeeU 

of Indian Affairs” attached to the War Department and 
. 

Ron. C-. H. Cavnear Pye 3 0plllion lo. WY 43 

provided for eppOM%BQt’ of four Indian Agents Snd one 

Superintendent D The President of the Republic was given 

“power to make such arrangement8 and regulations with 

the several. tribes OS Indiana as he may deem expedient 

for the establishment and preservation of peace, and 

the promotion of the aommon welfare.” Commlasloners 

vere given certain instructions In making treaties with 

the tribe8 and certain restrlatlons were imposed on 

trade with the IndLans. 2 Gammel 842. 

On FebruapJ 3, 1854, an Act vaa passed authorltl~g the gFaRt out of the QubliC domain or the puFchase 

by the State for the Alabama Indians o? the land lnvolved in your request, being 1280,acrea la Polk and/or 

Tyler Counties “as a home ior the sald tribe of Indians.” 

4 @anmel 68. A prlae not to exceed $2 an acre was 

authorieed and warranty doeds wean to be taken “conveying the saw to said tribe of Indians.n The Act forbade 

alienating or leasing the land and psovlded for a reversion of the land to the State in the event another 

home was provided by the State. 

patterned after the Act just wntloned and 

oloselg followi 

1856 granting a 7 

its terms was the Act of August 30, 

40 acre scservation to the “Coshattee” 

tribe in Llbetiy, Polk or Tyler Counties. 4 Oammel 503.‘. 

Later the Ret of February $6, 1.858 appPoprlated $5,000 

for the removal of said tribe to such a plaae as the 

governor’and the chiefs could agree onp with the former 

reservation reverttng to the State. 4 6ammel 1154. 

Other naematlons vere being QrOViaea for 

in the 1850’s. The Act of February 6, 1854 authoz%Zed 

the Federal government to select up to 12 leagues of 

Texas land, divided into not over 3 squares, for the establishment of Federal reservations for the Indlan tribes 

of Texas. 3 Gammel 1495. The Act of Bebruary 4, 1856 

authorized the Federal oovernment to set apart 5 

leagues4ve$e: it Pecos for reservations in that 

area. D The Federa Government appears 

to have been dilatory about sett : ng up reservat$ns 

wust of the Pecos, and the Act of January 29; 1858 urged 

prompt federal action inasmuch as the roving Indians la 

the area were cotsmlttiryl depredatioqs agalnat the white 
., 

Ion. C. H. Cavnoab pae*4 opi;hlon Ilo. ti i3 

settlers. 4 Oaatmei 1148., Thb Agt,of Janua 

declared that the ,I7 leagues aboye dwntlone “aakz 

abandoned aa reaervatloas ,and, had reverted to the atat& 

and they were opened for settlement aa a part of the 

public aomaln. 8 oynmel 376. 

‘By Act o? Deae@ber 30, 1861, the o?~~O of 

“Indlen Agent of the Alabama sad Cooahattle (ale) 

Indiane” ~88 amated with a aala= of 

and 4800 expanaoa. The agent vaa t 

400 per 8nnum 

requ red 

the latereata ottbatrlk. 5-1 541. 

to prowto 

The Oeaerel Appnaprlation Bill ror the 

1864-65 contained an ltemg 'for the Alabama, Co8 r- ttoo 

and Huaaogee Indians WC annum, #l,OOO*. 5 

Tb Aat of Deaember 4, 1863 8Vqnlwd the Indian 

for there trlbea to sake annual reporta, on 

removal fxw dfflae. 5 Mamel 719. 

During tM Civil Ifar, two bill8 we+ paaad 

?or the relief of the To.nkaweJ tribe on the frontier. 

#20,000 was ap roprlated ior their actual aw~ort on 

December 16 1 8 63, apparent1 aa a aillta 

5 danmel 73b. ~n%ay 28, 18&, an Aat dft%%?’ 

loyalty of this tribe and the fmot oi the doatruotloa 

of half of them bg the enemyI tha Fmtd&er kln6 

winderera, end authorlaed the governor to aottle thaa 

on the pub110 domain. 438,000 a year for tvo pas-0 nq 

jpproprlatoq fijr tlyir support. 5 -1 &O. 

Durlry tk la& FS’ or the Texar ~OQUbtiO, 8 

%-oat of Poaoo, Frl~nd&lp~od CORFO~O”, d8Wd OoWbor 

9 18d vaa oatrred II&O botvoon %bNRepubllo md m 

Chlc$, K000hi0, Waco, Caddo,.Am-dah-lcah,‘Iotio, 

DolawWo,bharare,Cherokee, Lip8nandTab-vab-lprm 

trlbor . 2 Ganel ~1191. Th8 tnaty bopefull rooitod 

“The towhavk #hall be burled, and no more g lood l Qpear in the path ktwen them, now -de vhlto. The 

W8at Spirit vi11 look wlth’delllplt upon tblr fr%oad* 

ahlp, and till fmma In aa@r ‘upon *kiP eamityo* 

Demite the bri#ht hoper r0r lartlng poaoo 

voloed in the treaty tb ~~17 lawa of Taxa@ -flat 

tlmt Indian depradatioua vere a f8lrlf oonstaat mblO@ 

UQ until about 1880. The let of Fobrpaly 12, 1 880 

.ri, ‘:, <’ :., . _ 
mu. c 0 H. cavners mge 5 opinion lo, WV 43 

8trtboriaed raiui* a volunteer fame of 300 m.n to mwoh 

the Bnsos River againrt Indllrn miden. Q Omnl 638. 

After Texas became a state, the legiel~tun, cent maf 

pleaa to Waehlngton for protection and ia&errib~. Se8 

3 Camel 523, 6 dame1 79, 415, 1051 and 8 @awe1 1489. 

The Joint Resolution of niwll 12, 1871 Save a mati 

of one caPbIlls to each of certala peraom for ktlllal; 4 

Indians fn mpellirag a mid. 6 Oammel 1058. Tlma dot 

of lamb 13, 1875 gave certain relief to pm-eaptorr 

drLven off thslr holleateada by hostile Indians. 8 

ffaemel k79. 

One aptem used to keep dovn Indian depreda- t 

tlons vaa to’locate the Indian8 on the Vroatier”. Hite 

rettleaetis we= kept well baalc from tlw, frontier; and, 

to keep the frrdiena from comlnej Into the settlement6 to 

trade, trsdl~@ pot&r vem #et UP on the Indian mmw8. 

Indiaa 

T 

~$8 lrem instmoted, 80 far au possible, to 

pawent 

1138. 

dllana from co8klrq into sattle8u8ats. 2 Gam81 

T!W 

irFuption f 

trem also to endeavor “to pmwent an7 

sic) on the frontier settlements*. Conpeso 

WEHI petltloaad in ttm Aot of M?mh 20, 1848 to establlrb a obaln of alllta~ port8 aa a buffer between the 

rbite irontier 8ettlewnt.s end the tndians. ‘3 Oama 206. 

Bveatualljr, this oaa done. 1956-57 Paxas Almimic p- 67. 

TM Joint Reeolution of Sqmber 5, 1850 

oWla+ed to Uarhi5gten that “wild Indlanr had inlF y t& 

%wo ,Tesar fwea 0-r rtatea, niii.a(l qnd piwkdwizlontlw rettlemente. Deuaad wu mad. for tkir 

z? 

nl ewid that ruoh hmlgmatlon ba stopmd. 3 @anmel 

/ 

, 

Particular thoz%~~ fn the sldee of' the settlera 

uwe the Cmuambe :'aW #io~'.Didldtiii froim the lie. 'bill 

lW4ervatlon In CW IiidlWi $dFrit6B"JI,:-nwf blclrah~;~@m 

made frequent maids on the Texas frontier settlements. 

In 1871 a joint reeolution requested Congress to move 

them at least 150 milea from the fPontler. 6 Qammel 1054. 

A similar resolution passed in 1873. 7 Barnmel 681 a See 

also Joint Resolution of 1879 protesting raids emanatiry 

~PO# Ft. Sill arid Ft D Stanton against tkw Panhandle arm.’ 

8 @amI 1489. The Jo&at Resolution of April 4, 1871 

md congress to OQOB up the Indian Comntry north of 

T*u to aettlemmt and to organize mai& Into a state. 
Xon. C. H. Came88 Pue 6 Opltilon lo. 43 

.,. 

This was doubtless in Important step liiadlng to,$he 

eventual creation of the State of Oklahoma. 6 Our&l 1056. 

Throughout thl8 tryltq period,"Ind&d hldr 

resulted in the aapture of many prisoners from the.white 

settlements. The early Texas laws are replete vlth efforts to recover,thoae captlve8, chiefly by authoriglng 

payment of ransom. 2 Cammel 712, 714, 767,$,825; 3 @ammel 

1491; 5 Cammel 960; 6 @ammel 923; 940, 

.,” 

Tax&t Indian legi8latlon for oome ‘keaaoa appeam to have come to an abrupt halt about l@O. Alaoat, 

nothing is found.Fn the le&lative poredi, I mpeolfi,- 

oally dealing vlth Indiana f#m that date unt pf, 1 1927 

when the Texas Senate adopted a IW8Olutlon that a. oalplttee 

be appointed to investigate the velfam of the Alabama 

Indiana and report babk at the next aebrion. Senate 

Journal, 40th Leg., 1st C 3. 1927, p. 252. The Committee 

report, dated Janua 

3 

16, 1929, ir printed In the Senate 

$ournal, 41st Leg., 3. 1929, p. 760. 

The Committee reported that they found the 

Alabama tribe “and thh Cowhatta Indian8 vho .llve Pith 

them” in a state of greet negleot and poverty. Their 

poor economic hate, said ‘the omittee, l l8 l re8ult of 

the treatment they have raoeived at thd hand of the white. 

hen who oaae and took from them their lrodr and dertreyed 

the gaw that we8 bnoe plentiful in the woe8 betveiti the 

8abim and Trlnlt 

and Coushatta 

Rivw8i $ho M&tow *ioh the Al&bama 

Ind I an8 dlalmed, . .’ .” 

The repoti raid “lnveatigation8 revealed that 

this tribe haa rehilered outstand1 

“ff 

rervloer td the Republic of Texad end ,to the 8tate. Ch ef Collta and Chtef 

T~lpe were dwaneh frleadr of (kn8pal Sam Houston awl.&& 

the Texas Revolution Bad render&d inValuable.assistanoe 

to the Savloli of T&x48”. It was reoited that though tw 

weiw citlxene ~Prlther of !?&a8 noF of the Conf’ederao 

.Alabamar had 2P.imen In the Confede#di.e Amy~, and aga 

!I the 

n in 

1918 they volunt&ered in large num 

because of “the peauliar relation8 P 

XVI, belw rejected 

Federal Ciovernment e ” 

p tbj.btire to the 

by the Act of Cot&~&8 or .Ju~ 2, 1924; .43 Stat. 253):,+ :‘~ 

(~nd,&ana became Amai*io ii UitiseW 
Non. C. H. cavne6s Pue 7 Opinion Ho. wf 13 

“The Alabama and Couahatta Indians of Polk 

County, n the report oontinued, “are ward8 of the Matioh; 

They are alao ward8 of the State. No group of oltlsena 

can point with more pride to past services rendered t6 

the Republic and to the State than can these Red Sklnr 

of Texia p Big Thicket o It was the Coushatta Indians who 

arslsted Sam Houston la the Revolution. Chief Colita 

of the Coushatta Tribe slaughtered his OM cattle to 

feed the 8tarvLng women and children who vexw fleeing 

betox% the battle of San Jaointo. It wa6 Colita vho 

c8rried the new8 of the victory to the border of Loulri8na 8nd brought the tired Texans baok to their homer. 

The hLstory of this tribe Is rich %n aervloe rendezwd 

to the immortal Rouaton . . . The ~gsponsibllity of oaring 

for these citltena resta upon the State and upon the 

nation.” (Emphaals added) + 

The LeglslatUV responded to the awport by 

plaolag an item in the depaptmental appropri8tlon bill 

under the heading of “Eleeaoeynarg 1nstitut10n8” to 

cover the salary of an agent and. a nume, dental aad F 

medical work, “50 homes for Q88atea” cost1 

and 26 miles of fencLng. Act8 41rt Leg., 1 

15,000, ,!:', 

C.S., Ch. 16 at 9. 484. 

r3- 

Th8 ~rervation 18 looated 

in an ama 17 mile8 east of Llvlngrton and 20 mile8 

wart of Woodville in an area rlahl 

timber, madilr available for tb L 

endowed +Ltb v-in 

lldlng of maLd -8. 

R ular approprlationr have bow made for lib8 trik 01~0 

1 3 9 end 8rw our%wntlf owriod a8 an %ter’~in tbo eDDroD?htiOX& fOF thD l)WSd fOCOh -8 atate HO89ikl8 JVd 

S-la1 80hoOl8. See lots 54th Leg., R .S 0, 1~$&519, 

at p. 1374'. The appropriation for the 18t 

bienaha 1s 

Itr wording t 

6!3,607.00 and for the second $ r@ ?,107.00. 

a patterned after that for otbw inrtltotlOM under 88id Board. 

Early Te%os laws in many Pe8p*ota parallelad 

Urrlted State8 Govwnment Act deal1 

AOt Of C@RgPtbbs Of JULY 9 1 8 %? PPO 2 

tith Indiaab. The 

&ed rOP a COWII~88~OMr 

of Indian Affairs under the War Ceparttment . 4 ‘Stat* 564. 

The Bureau headed by the commissioner is now under the 

Secretary of the Lntepior. 25 USCA, Seas. 1 h 2. Federal 

reservattolons for the Indian8 were areated in many pwtts 

of the United Water. Some were created by Act of Con- 
Eon. c . H. Cavaeee Page 8 Opinion lo. uw 43 

green, some by Exeoutive order and some by treaties vlth 

the tribes. 25 UBCA, Sec. 331. In 1871, Congiww diecontinued recognition of the tribes as Independent nation8 

and decreed that no further "treaties" were,,,%o be made 

with them. 25 USCA. Sec. 71. 

These reservation8 were located on vacant Federal lands. PrOVi8~On wa8 made for allotment of up to 80 

aares of arable or 160 acre8 of grazing land in the reaervation to each Indian. A preliminary patent wa8 granted 

holding the land in trust for the partiaular Indian for 

25 yeara, at the end of which time andther patent was 

i8aUed to him conveying full fee eimple title, glvin(l 

him the right to sell or dlspoae of the land ltl any wan 

her saw fit. 25 u~cA, Sea. 348. At the end or such 25 

year trust perlod, the allottee of the land wan *r) be 

governed by the civil and criminal laws of the State the 

saine as any other person. 25 USCA, Sec. 349. Over the 

year8 the Federal Government haa erected schools and 

hoapitala, given agriaultural assistance and vocational 

tralnlng and In many other wags has endeavored to aontribute to the welfare of the various tribes. See, for 

example, 25 USCA, S&s. 452 and 471. 

Very recently, congressional J.eglrlatloa appears to have headed la an entirely new direatioo. It 

v8e heralded by the Passage on August 1, 1953 Of BOUe 

Canctificnt Rerohtloa 108, 67 Stat. B 132, rh%ch etated: 

“Wheream It lr the pollc or Congress, a8 

rapidly as po8slble, to make the I ndians within the 

territorial llmlts of the United States aubjeot to the 

came Iavs and entitled to the same privileges and responslbllitler a8 are applicable to other critlzens of 

the United States, to end their status a8 wards of the 

United States, and to grant them all of the rights and 

prerogatives pertalniag to American cltlzenshlp . o .“, 

it was deolared “to be the 8eoIe of Congress that, at the 

earliest pO8sible time, all of the Indian tribes and the 

Lndlvldual members thereof looated within the etates ho? 

Texas. . . ahould be freed from Federal aupervlaion and 

oontrql and from all dlrabllltles and llmFtation8 speoWltally l ppliaable to Indians . . . It 1~ further dealared 
Bon. C, H. Came88 Page 9 Opinion 80. UU 43 

to be the aenae of congreba that, upon the release or 

such tribes and IndivLdual member8 thereof from such, 

dlaab%llties and ll.mltatlone, all offioeR or the 

Bureau of Indian Pffalrs In the State8 of s . . Telcaa. . . 

and all other offices of the Bureau of Indian Affairs 

whoae primary purpose was to serve any .Indlan tribe or 

IndLvldual Indian freed from Federal aupervieton should 

be abollahed.' The Resolution lnetmoted the beontary 

of the Interior to Investigate and reoowend le~lalatlon 

to aCcolPpli8h these purpoaea. 

This resolution appear8 to be in line with the 

pblloaophy of HoDorabte Glenn R. Errmone, preeent dom8%8oiooir’ or Indlan AilaIm, whose appointment by the President 

war made during the 8oath lmpledlately prior to the paaaage 

kit the reaolutlon. See “Rota gLvl.ng the Indlana a Chance", 

br Jame8, Danl.el. Readers Digest, Maroh, 199’7. 

,-,. 

The new policy MB Boon put Into erreot and * 

number of acts have been passed terminating Federal aupervision over various tribes. 25 USCA, Seas. 564 et req. 

The Aat or Awust 23, 1954 terminated such augervision 

over "the Alabama and Coushetta Tribes, of TeXaa”. Pub110 

&air 627, 68 Stat. 768, 25 USCA Seca. 721 et aeq.cIn lQe8 

the Federal bovernmeat had purchased and taken a deed 

*ln trurt ior the Alabama and Couahtta Todtiae 

to 3071 acmw in Polk Count 

B 

* adjacent to t&e. 1@ 8 

t Texas” 

0 aore 

@rohiled by the State -In 1 9, ea1az&n(r the reeervation 

$0 4351 aorta. batd Public Law ,627 authorisbd the EleereMix7 0r:tb Intekior to oonvef the 3071 acre0 to the 8tate 

81T&8r “ia trust for the biW8fit of the Indlaaa or the 

Nabama and Couhatta Tribe8 of Tatal, subject to suoh 

aaadltiona regardding maoagememt and uae aa the State of 

T&a8 ay psweoribe and the dlapoaltion of such land!, 

eliall be subject to approval of a majority of the adult 

onnplr o? the Alabama #ad Couahatta Tribe8 of Texaa.’ 

The o~%glnal recorded deed from the Secretary of the 

Interior la on file in the office of the Texaa~Seoretrrf 

or btate. The lrct further provided that Federal Xud%alk 

atatutar rhoold no longer be applloable to this tr%bO aBd 

that "the laws 0r the several states shall apply to the 

trfbo and it8 member8 in the 6ame mannor as, they apply to 

other oitisena or perrow tithilrith@r jwt8dtotlo&.? 
Hen. c . H. c*vness Pyr 10 OPlalon lo. lIJ.&, ” -’ 

.;< 

I -. 

, 

For a summary of Public Law 627 and its background use 

the..Eououae Committee Report In U. 8. Code Congressional 

and Administrative l@ews, 1954, pp. 3119 et seq. 

In anticipation of the adoption of Public Law 

627, the Legislature adopted Senate Conourrent Retioltitloa 

go. 31 (Acts 1953, R.S. p. 1078) authorizing the Governor 

to accept on behalf of the State the transfer of the 

trust, coaditioned~on,consent of the tribe by apprqpriate 

resolution, and further’ authorltlng the Governor to designate the State agency in which such trust ~rrtonstbllltlo~ 

Mall re&, vhich agency wall granted rule @$W.ng pomra 

in connection with a&h trust. 

The Joint liea,Olutiou of Co 

‘: 

“& 

rem Of July 14 

1956, 70 Stat. 531, 25 USCA, Sec. 30 a, provides. for&a 

2 year study by the Bureau of Indian AffaIra of the 

‘program for transferring Indian children to pub110 

schools.’ The Act of Augudt 3, 1956, 70 Stat. 986, provides fop vocatlodal training ?or Indlahs between 18,'an4 

35 in recognlsed schoola and 3b million dollars a Jiir 

is authorized to be ap roprkated t~herefor. Publio &a+~~l, 

a provec? August 6, 

4%3 

195 8 ,’ 70 Stat. 1057, 25 USCAr bea. 

a, authorize8 the Secretary of the Interior’to aorivry 

to Indian tribes, bands or groups Federal buildings aad 

improvements located on their lands. . 

We have, reviewed at some length Federal and ” 

State legislation dealing with Indians beqaure we feel 

that your lnquirler, and particularly quemtlon Ho. 1, 

must be answered in the light of historical perapeottve. 

In your first question;’ you aak our oplnloo a# 

to the legality of past and present legislative appropr%atioaa for the afopvsaid tribe. We amy 61 the oplaloa that 

such appropr&atlohl ,vcm and are’ valid and oonst~tufiiMm1. 

The regulatioh aad irristanoe of IndIaa reaervatloaa. .&as 

been regarded ai a proper goveriiBeoto1 fUnot:&bn riaqe the 

days of the Republic. Indeed 1 

matter of survival ltaelf. Ind f ', 

tbai maFly deyti iti ma 8 

anr vere placed on reaerva-. 

tiona, not for their ooavenlenoe hut for the: acctimodatlim, oonvehleuoe and safety o? the wfrlte 

Alabama Couabatta reservation Is the Ias+ I”Nian * The reaermtlon nmainLw In Texas. Beaauee the Act of 1854 forBida 
. 

Ion. C, H. cavnesa Pa&8 11 opiaio;r? No. ww 43 

them to sell the land, they have been In a very real 

semse under a compulsion to remain with the land. These 

Indians, now numbering something over 400, formerly 

roamed and claimed the vast domain from the Trinity to 

the Sabine. The State placed them on a reserve of two 

square miles of thicket. 

We agree with the Senate Committee that theae 

people, at least until the Legislature remover the restrictiona that hold said reservation intea: and prevent 

It8 alienation, are wards of the state as well a8 the 

nation. Beoause of such relationalp the Leglalature 

has'and had the powar to appropriate funds for the benefit 

of said reaarvatlon. There is no constl.tutlonaL provision 

rpeciircally authorlzlng such, but neither is there on8 

authorizing a State Orphans Home or many other eleemosjnary 

W~f.tutiona wlllch regularly receive substantial. ,appromlat- 

. The vallditg of appropriations to suoh eleemoafrmry 

institutions would never be seriously challenged. They 

ax% but mflectlona of the fundamental conaepta of an 8nlightened citlaenry who insist that this State ahaL1 look 

after its own. It is a xwcognlzed concept.of' all alvlll~si3 

nations to endeavor to foster the welfare of the aborQl.ta8 

*hose lands they took, and to whom they ther8b;r ow8 a 

8pecles of debt., Our supreme court haa said that '%8 

unlveraal rule of aonstructlon la that leglrlattve md 

exeautive interpz&atloaa of the organi law, aopukroed 

la and lon& continued . . . 

lnlng the validity of 

'rex. 383, 40 Sew. 26 3?7$ 

the leglalatune and 8xeoutZve throwut tla8 entire b%% 

ory of Te~4&8 lrphold tk, legalit;f Of th888 ap Fopti8tkraao 

It r0il0~8, thnmr0~, that v8 are or th8 ap P Ilion that 

881~ 8~*) not ia violatlbn of Art. 3, Bee. 51 or of Art. 

16, Sec. 6, of the Texas Conatltution, vhioh An aubatmae 

rorbld approprlatlone for private prrporea. 

Under the Ind%an Rear$anlsaflion Act bf 1934, 48 

Stat. 984, 25 USCA Sea. 476, one or more Indian tribe8 residlag on the same reservation wel?d authorlsed to adopt 

,a aonstitation and bylaws to be approved by the Sear8ttwr 

of the Intcrrlor. On August 19, 1938 the Seorrtary ap- 

&roved swh an inafrument theretofore a$opteU by the 

Alnbua and Coushatta Tribes oi Tamkp~. You have fuPnlrhed w a oopy of this doouatmt. In many inntaMer 

2 z&Jar aotloar. 

ulni approval by the Ssorstoq of the Intetiot 
Hon. C . H. Cavnars Page 12 Oplnlon Ilo. WI 43 

Sea e of Public Law 627 of 19!54, rupn (25 

USCA, Seo. 723 , which terminated Pedeml l ~p a r ~la iOn 

over the tribe, atated th8t “all powera of ‘the deoretbq 

of the Interior Q 6 . to take, revlev, or approve any 

action under the constitution and bylaw of the Alabm 

yd8Coushatta Trlbes of Texas approved on August 19, 

are termlnated~ Any pove~s aonierred upon 

the t&e’by its oonatltutloa and bjlava that are lncoaalstent with the proflalona of thia Act are telrla&ted. 

Such temlnatlon shell riot affect the power of the tribe 

to take any action under Its conatitutlon and wl@va tlrrt 

la conalatent with Seas. 721-728 of tblr title wltbeat 

the participation of the SecretaPj . . . in ouch aatloa’. 

Your second queatioa aaka vhat port&on of l uoh 

conatltutlon an& bylaws la aonalatent vlth Public Uw 

627. It la our opinion that all d? said conatltutfoa and 

bylava Is la heru~ony with said law and la atll$ la ?Ol?oO 

except In those instancea vhemin approi?al.o? certain 

acts by the 8ecretary o? the Interior la calted for. w 

the apealfic term8 of such Act such approval ir no 1OtigeF 

neaeaaary and la ao lobger a condition to the validity 

of 6~ authorleed actlona. We underatand ln?omally th&t 

the Indiana interpreted the Act aa deatrofillg the&r conatltitlon and bylava. we do not 80 interprrt tha Aat but 

conalder such document In full force exaept aa above note4. 

Public Law 627 oontaiged a pr~vlao tb&t “Luoh 

trlbb lr authoriCed to QonYey to the State at Texm t)M 

lands purchased for and deeded to the Alabama Indlana” 

under the 1854 Act, 

Your third iiqulry ark8 three quertlona tith reiennce to thir provlalons 

%I11 you?#leaae explain to ua the legal 

aignlflcaoce of the ten8 ‘authorized to 

convey’ aa tired in the above paragraph? 

I? such conve ante war not Bade, as authoriced, Is th& l tate of Twa the rightful 

trustee of the 1280 aarea of land deeded 

originally to the Alabama Indiana? Can 

you detealne that such oonve~nce v8a w&e?* 

, 

, 
. . . 

Hon. C . It. Cavness Page 13 Opinion 100. 43 

The Act of 1854 and the orFgFna1 deeds placed 

title to said land In the tribe of the Alabama Indians. 

By terms of the Act the land could not be sold. Public 

Law 627 authorized a conveyance to the State to be executed hg the Alabama and Couahatta trlbea. The said Act 

treats 5he tvo tribes as one trlbt.. In any event, the 

lacguage of the Act is not compulsory but leaves the 

matter up to the dlscretlOn of the tribe. It la our 

understand that such a conveyance was not in fact made. 

Such being the case, the State is not a trustee of the 

land, alnce it belongs to the Indiana. 

Your fourth queetion inquires as to what right 

tbe State has to ereat its office building, hospltal’and 

llvlng quatiezs for vhlte employees on the 1280 acram. 

While, as we have stated above, the State had the right 

to make such expenditures, the Placing of such improvements on the lands not owned by the State aould be proper- 

.- 

1’ done only with the consent of the Indlan ovnera of 

&e land express or implied We think it a fair aaaumptfon thai since these build&a were erected to benefit 

the Indiana, and were, so far aa we know, erected vlthout 

objection, at least an Lmplled consent wa8 given. 

You state that reaentlg the Rural Electl?lcatlon 

Adaiinistration cut some timber on the 1280 acres In order 

through the reservation, and your fifth 

as to what should be dons with pqoeeda 

In the case of 

1918, %rPor diem. ?.v.j . 

well, (‘hm. Cio..App. 

Wil~e it 1s true that ia 

the Court aaldr 

#a pafl ,oP the realty, yet 

genera1l.j regardad 

the owner ma~r by contrac~t con- 

#fructively cause a severance, and for the purpose of a 

$ytgage or sale convert Zt into personalty.” clttn(ll 

authorities. / 

Upon the timber belt&g cut, It beoame persoaalt~ 

&j~~6ould be aold by the tribe, With the proceed8 to be 

Wed bJ the Indiana ior tribal, purposes. The land ,ie 

o-4, w the Indians and the State would own no ,interest 

& t@e .reaeipta from sales of cut timber. Under the oircumstancea, such sale would not violate the statutory 

~&Feint MaInat alienating the land. 
. . . 

Hon. C. Ii. Cavness Page 14 Opinion No. WH 43 

Ownership of the receipts aforesaid foll6ve 

ownership of’ the land. In this conneotlon we note that 

the original conveyanaes in 1854 and 1855 were to the 

tribe of the Alabama Indians. The Conetltutlon and bylaws of 1938, ado tea under Ghe Indian Reorganleatlon 

Aot (48 Stat. 9847, appear to have combined the Alabamaa 

a,rd Cousjmttm into one tribe under the name o? ‘Alabama 

and Couahatta Tribes of Texas”, and they are so trusted 

by Congress In Public Law 627 aforesaid. 

t SUMMARY 

kurrent and past legialatlve appropriations 

jfor the benellt of the Alabama Couahatta 

’ ndian Reservation are legal and Bre ‘not 

‘I: n violation of Art. 3; Seo. 51, and Ai%: 

‘.il6, Sec. 6, of the Oonatltutlon of Texas. 

t? 

e 1938 Constitution and Bylaws adopted 

. g the “Alabama, and Ooushatta Tribes of 

~tiexas” are still in force, ‘exaept that 

iapprcval by the Secretary of the Interior, 

,o? tribal actions is no longer a preirequisite to the valldltg of euch actiona. ‘~ 

Pub110 Lay 627, 83rd Congr&~s, authorizing 

the Indiana to convey a 1280 acre portion 

to the Stati, of Texas is permlaslve and, 

not compulsory. 80 maoh conveyance has 

been made. This 1280 acre traot still belongs” to the Indians, and the State’18 not 

a trustee of such lana.~ Since the eald land, 

belongs to the Indians,, improvements may be 

placed thereon by the State only with the 

consent of eaid ovne~rs. Proceeds of, the 

sale of timber cut for a power line are 

the property of the Indiana,’ to be used Sol, 

tribal @n?poaee 

A PPROVED : Y+urf~‘ve* truly 

OPINIOR COMMIti ” WILL WIISON 

H .Cg;ga;handler, 

.AttoMxey Qenem1 

9 

, 

l52GzihJd 

5. Arthur Sandlln 

Aeaistant ‘,