# The Attorney General ofTexas

August 23, 1979 MARKWHITE AttorneyGeneral

?01cun~.suiN2al OalNs.TX. 72202 2W7424244 Honorable William P. Hobby Chairman, Legislative Budget Board Box12666, Capitol Station Austin, Texas 767ll Honorable D. It. Torn” Dher Chairman,State Affairs Committee House of Re~tatiVes Austin, Texas 76769 Opinion No. -MW-49 Re: Authority of Texas Indian Commission to assist non+rsewaticmIndiana

Gentlemen: You ask several questions about the authority of the Texas Indian Commknion to assist the Traditional Kickapoo Indii andintertribal Indii organizations. Article 54212, V.T.C.S., gives the commission certain responsibilities and powers with respect to the Alabamaaushatta and the Tigua htdian Reservations. The 65th Legislature enacted Senate Bill 166, which added the following provision to article 54212:

Sec. ilk (a) The Traditional Kickapoo Indians of Texas are recognized as a Texas Indiantribe. (b) The commission shall assist the Traditional Kickapoo Indii and the intertribal Indii organixations chartered in this state in applying for and managing, joiitly with .the commission, federal programs andfunds secured from the federal government or private sources for thepurpose of improving health, education, and housing standards of these Jndiansorincreasing their economic capabilities (c) The commission may seek the cooperation of local andstate agencies in adminiierhtg programs or funds covered bySubsection (b)of this section. Acts 1977, 65th Leg., ch. 399, S2, at 1090. Lieutenant Governor Hobby asks if the 1977 amendment allows the Texas Indian Commission to exercise the same powers and carry out the same responsibilities on behalf of the Traditional Kickapoo Tribe and theHonorable WilliamP. Hobby

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intertribal organizations (non-reservation Indiancommunity action groups)as those set out for the Alabama-Coushatta and Tigua tribes. Specifically, he asks (l) If the statute, as amended, constitutes preexisting law on which state appropriations to the Kickapoo and intertribal organizations maybe based, and(2) if the Texas IndianCommission may enter. into contracts on their behalf. Representative Uher asks whether appropriation of state money to “non-Texas Indians”is permitted under the Constitution. Weneed only address the constitutionality of section HAin light of the federal equal protection clause. U.S. Const., amend. XIV. The federal authority to enact legislation singling out tribal Indiansderives from,the power of Congrew to regulate commerce with the Indiantribes, U.S. Constitution, art. I, 96, CL3, from the treaty power, k& article II, S2, CL2, andfrom the federal trusteeship over Indian tribes established by the Indian Nonintercourse Act, 25 U.S.C. s 177. Worcester v. Georgia, 31U.S. 515(1632);Cherokee Nation v. Georgia, 30 U.S. l(l83U; Joint ?‘rIb m 528 P.2d 370 (lst Cir. lm Narragansett Tribe of Indians v. Southern Rhode Island LandDevelopment Corp., 4l8 F. Supp.798(D&I. 1976). As a result ofthis paramount federal authority, Congress may

enact legislation singling out tribal Indians,.legislation that might otherwise be constitutifxmlly offensive. Washington v. Yakima Indian Nation, 58 L.Kdfd 740 (l979). In upholding a Bureau of IndianAffairs employment preference for tribal Indians,the Supreme Court has said that

this preference does not constitute ‘racial dIcriminaticn.* Indeed, hitis not even a ‘racial preference. Rather, it is an employment criterion reasonably designed to **further the** cause of Indian selfgovernment. Morton v. Mancari, 4l7 U.S. 535, 554-55 (1974). Since the special treatment was “tied rationally to the fulfillment of Congress’ unique obligation toward the Indians,” it did not constitute invkiious racial discrimination. The Supreme Court has emphasized, however. that states ?io not enjoy this same unique relationship with Indian.%” WashI*on v. Yakima Indian Nation, susu A state may enact legblation sInglIna out tribal Indians onIv when authormed to do so bv the fed&I gove&ment. Po.$er ;. P or 189 U.S. 325 4903). State v. Dibble, 62 U.< 366 + p8irn\mte laws bene ittmg ederal recognized Indians); cf. Joint Tribal Council of quoddy Tribe v. Morton, s. The AlabamaCoushatta and TIgua tribes have been specifically recognized by federal law. 25 U.S.C. S721-28; P.L. 90-287 (1968). But neither the Traditional Kickapoo Tribe nor the intertribal organizations have been accorded distinct and separate recognition, either by Congress orbythe federal Bureauof IndianAffairs. The state may not, in the absence of federal authorization, enact. laws benefitting these Indians,and since there has been no federal authorization in this instance, section 1lAisunconstitutional on its face..

Honorable William P. Hobby

HonorableD.OR.

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Such a construction does not mean, however, that the State of Texas ispowerless to assist either the Traditional Kickapoos or the intertribal organizations. It is well established, after all, that Indianswho live apart from their tribes are subject to the laws of the state in which they reside. United States v. Waller, 243 U.S. 452 (19171; ,E”parte Ploumoy, 312 S.W.2d 488 (Tex. 1958). Such legislation shot&i be drafted, initially, to obviate the contention that it provides state benefits to Indiantribes or organizations not recognized by federal law or regulation andtherefore, preempts the federal power to deal exclusively with Indians. Second the legislation should attempt to avoid the allegation that it discriminates in favor of Indian tribes or individuals, and thus runs afoul of the constitutional guarantee of equal protection. Inthe absence of federal authorization for the state to deal with these Indians, any program which provides them benefits should be designed andadministered so that the availability of benefits Isnot limited to members of particular racial or ethnic groups. In view of our determination that section llA Is invalid, we need not answer your other questions SUMMARY

Inthe absence of federal authorization, the Texas legislature may not provide special benefits for Traditional Kickapoo Indians and members ofintertribal councils. %ytrxg

MARK WHITE Attorney General of Texas JOHNW.FAINTER,JR. Fiwt Ass&ant Attorney General TEDL.HARTLEY Executive Assistant AttorneyGeneral Prepared bySusanGarrison andRick Gilpin Assistant Attorneys General APPROVED: OPINIONCOMMITTEE C. Robert Heath, Chairman DavidB. Brooks

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SusanGarrison Rick Gilpin EvaLcutzenhiser WilliamGReid Bruce Youngblood

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