The Attorney General of Texas 

August 23, 1979 

MARK WHITE 

Attorney General 

?01cun~.suiN2al 

OalNs. TX. 72202 

2W7424244 

Honorable William P. Hobby 

Chairman, Legislative Budget Board 

Box 12666, 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+rsewaticm Indiana 

Gentlemen: 

You ask several questions about the authority of the Texas Indian 

Commknion to assist the Traditional Kickapoo Indii and intertribal 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 Indian tribe. 

(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 and funds secured from the federal government or private sources for thepurpose of improving 

health, education, and housing standards of these 

Jndians or increasing their economic capabilities 

(c) The commission may seek the cooperation of 

local and state agencies in adminiierhtg programs or 

funds covered by Subsection (b) of this section. 

Acts 1977, 65th Leg., ch. 399, S 2, 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 the 
Honorable William P. Hobby 

Honorable D. R. “Tom” Uher - Page Two (Nl+4g) 

intertribal organizations (non-reservation Indian community 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 may be based, and (2) if the Texas Indian Commission may enter. 

into contracts on their behalf. Representative Uher asks whether appropriation of state 

money to “non-Texas Indians” is permitted under the Constitution. We need only address 

the constitutionality of section HA in light of the federal equal protection clause. U.S. 

Const., amend. XIV. 

The federal authority to enact legislation singling out tribal Indians derives from, the 

power of Congrew to regulate commerce with the Indian tribes, U.S. Constitution, art. I, 

9 6, CL 3, from the treaty power, k& article II, S 2, CL 2, and from the federal trusteeship 

over Indian tribes established by the Indian Nonintercourse Act, 25 U.S.C. s 177. 

Worcester v. Georgia, 31 U.S. 515 (1632); Cherokee Nation v. Georgia, 30 U.S. l(l83U; Joint 

?m ‘rIb 528 P.2d 370 (lst Cir. lm 

Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 4l8 F. 

Supp. 798 (D&I. 1976). As a result of this 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 

Indian Affairs employment preference for tribal Indians, the Supreme Court has said that 

this preference does not constitute ‘racial dIcriminaticn.* Indeed, 

hit is 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. S 721-28; 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 or by the federal Bureau of 

Indian Affairs. 

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 

1lA is unconstitutional on its face. 
. 

Honorable William P. Hobby 

Honorable D. OR. “Tom” Uher - Page Three tNI+49 1 

Such a construction does not mean, however, that the State of Texas is powerless to 

assist either the Traditional Kickapoos or the intertribal organizations. It is well 

established, after all, that Indians who 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 Indian tribes or organizations not 

recognized by federal law or regulation and therefore, 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. In the absence of federal authorization for 

the state to deal with these Indians, any program which provides them benefits should be 

designed and administered so that the availability of benefits Is not 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 

In the absence of federal authorization, the Texas legislature may 

not provide special benefits for Traditional Kickapoo Indians and 

members of intertribal councils. 

%ytrxg 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

Fiwt Ass&ant Attorney General 

TED L. HARTLEY 

Executive Assistant AttorneyGeneral 

Prepared by Susan Garrison 

and Rick Gilpin 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

P- 151 
. ,. . 

Honorable William P. Hobby 

Honorable D. R. Tom” Uher - Page Four (MW-49 1 

Susan Garrison 

Rick Gilpin 

Eva Lcutzenhiser 

William G Reid 

Bruce Youngblood 

P. 152