## ATTORNEY GENERALOFTEXAS GREG ABBOTT

July 182005

The Honorable Frank Madla, Chair Committee on Intergovernmental Relations Texas State Senate Post Office Box 12068 Austin, Texas 7871 l-2068 Opinion No. GA-0339

Re: Whether the Live Oak Treaty of 1838 is still abinding agreement (RQ-03 1O-GA)

Dear Senator Madla:
Without factual background or context, you ask us to opine whether the “Live Oak Treaty, which was signed on January 8, 1838by the Lipan Apaches of Texas, and subsequently adopted, ratified and concurred! on by the 1st and 3rd Texas Legislature,* [is] still considered a binding agreement.“3
The treaty about which you inquire, entitled “Treaty Between the Republic ofTexas and the Lipan Apache Indians, January 8,1838,” was executed between the Lipan Indians (“Lipan”) and the Republic of Texas (“Republic”).4 See Request Letter, supru note 3, at 5-7. The preamble to the treaty recites that the treaty is to secure the “Peace and perpetual friendship between the Republic

‘The Constitution oftheRepublic ofTexas authorized thePresident ofthe Republic tomake treaties withthe advice and consent oftwo-thirds ofthe Senate. See REPUB. TEX.CONST.

OF1836, art. VI,fj5,reprinted in 1H.P.N. GAMMEL,

THELAWS

OF TEXAS1822-1897,at 1069,1076 (Austin, Gammel Book Co. 1898). Wefindno official record inthe early documents ofthe Republic that the Senate ofthe Republic ofTexas ratified the Live Oak Treaty of 1838. WenotethatSenate records fromMay4through May 24,1838 havebeen lost. SeeAnnaMuckleroy, TheIndian Policy .* oftheRepublic ofTexas,26SW.HIST.Q,at20 &n.62 (1922). Forpurposes ofthisopinion wewillassumetheLive Oak Treaty of 1838wasproperly ratified by the Republic.
*TheRepublic ofTexas wasgoverned by theTexas Congress. See 5THENEWHANDBOOK OF TEXAS 53748 (RonTyleretal.eds., 1996)(publishedbytheTexas StateHistoricalAssociation,alsoavailable athttp://www.tsha.utexas .edufhandbooWonlinelarticlesiRR/mzr2.html).

‘Letter from Honorable Frank Madla, Chair, Committee onIntergovernmental Relations, Texas State Senate, toHonorable Greg Abbott, Texas Attorney General (Jan. 14,2005) (onfile with Opinion Committee, aZsoavailable at http://www.oag.state.tx.us) [hereinafter Request Letter].
4SeeTreaty Between theRepublic ofTexas andtheLipanApacheIndians,January 8,1838, Dorman H.Winfrey andJamesM.Day, THEIND~ANPAPERSOFTEXASANDTHESOUTHWEST 1825-1916, Vol.I,Dot. No. 16,at30-32 (1995) [hereinafter Live Oak Treaty]. Throughout this opinion we make no effort to impose or correct for modem spelling. Instead, weretain the spelling ofnames and titles asused inthetreaties.The Honorable Frank Madla - Page 2 (GA-0339)

of Texas and the Lipan Tribe of Indians.” Live Oak Treaty, supru note 4. The treaty is signed by James Power on behalf ofthe Republic ofTexas and Cuelgas de Castro asruling Chief ofthe Lipan. See id. Although you inquire only about the validity ofthe 1838 Live Oak Treaty, you include with your request additional treaties involving the Lipan Indians: the Tehuacana Creek Treaty, dated October 9, 1844, and the San Saba Treaty, dated October 28, 1851.5 See Request Letter, supru note 3, at 8-17.
The Tehuacana Creek Treaty was executed between the “Republic of Texas and the Comanche, Keechi, Waco, Caddo, Anadarko, Ioni, Delaware, Shawnee, Cherokee, Lipan and Tawakoni tribes.” Tehuacana Creek Treaty, supra note 5. It is signed on behalf of the Republic of Texas by three commissioners of the Republic: Colonel Thomas I. Smith, Colonel John C. Neill, and General Messrs E. Morehouse. See id. Ramon Castro and Captain Chico signed the treaty on behalf of the Lipan Indians. See id. The Tehuacana Creek Treaty recites that the parties “are now willing to open the path of lasting peace, friendship and trade, and are desirous to establish certain solemn rules for the regulation of their mutual intercourse.” Id.
The San Saba Treaty was made between the United States and the “undersigned chiefs counsellers and head men of the Comanche, Lipan, & Mescalero tribes and their associate bands.” San Saba Treaty, supra note 5, at 149. The San Saba Treaty is signed by John A. Rogers, Special Agent for the Indians of Texas and Commissioner on behalf of the United States, and a large contingent of Lipan Indians including Manuel Hemandes, Captain John Castro and Captain John Flaco. See id. at 152-53. In the San Saba Treaty, the parties expressly agree to and acknowledge the articles ofthe Council Springs Treaty, dated May 15,1846. See id. art. II, at 149. It appears that the purpose of the San Saba Treaty was to enable the United States to fulfill its obligations under its Guadalupe-Hidalgo Treaty with Mexico. See id. art. III, at 150.6 The United States agreed that “special care shall then be taken not to place its Indian occupants under the necessity of seeking new homes by committing those invasions which the United States

...obligated themselves to restrain.” Id. at 151. The signatory chiefs agreed to place themselves under the care and protection of the authorities of the United States and to bind themselves to “comply with the provisions of said treaty between the United States and Mexico.” Id.

‘See Tehuacana Creek Treaty, Treaty of Peace, Friendship and Commerce, October 9, 1844, Dorman H. Winfrey andJames M. Day, THEINDIAN PAPEFG

OFTEXASANDTHE

SOUTHWEST

1825-19 16, Vol. II, Dot. No. 76, at 114-19(1995) [hereinafter Tehuacana CreekTreaty]; SanSabaTreaty, Council Ground SanSabre,Bexar County, Texas, October 28,185 1,Dorman H. Winfrey andJames M.Day, THEINDIAN PAPER,S

OF TEXASANDTHE

SOUTHWEST

1825- 1916,Vol. III, Dot. No. 104,at 149-54 (1995) [hereinafter San SabaTreaty]. You also include two additional treaties oftheLipan Indians: atreaty between the Lipan Apache and theMexican government in 1791,andthe Lipan Apache Peace Treaty with Mexico of August 17, 1822. See Request Letter, supranote 3, at 2-4. You do not ask about the continuing validity ofthese treaties thatpredate the Live Oak Treaty, andwe do not consider them inthis opinion.

‘%e Guadalupe-Hidalgo Treaty between theUnited StatesandMexico, executed onFebruary 2,1848, ended theMexican Warhostilities betweenMexico andtheUnited States,see UnitedStates v.Abeyta, 632F.Supp. 1301, 1304 (D.N.M. 1986), andestablished theborder between thetwo countries. SeeFragoso v. Cisneros, 154S.W.Zd991,992- 93 (Tex. Civ. App.-El Paso 1941,writ ref d w.o.m.). In the Guadalupe-Hidalgo Treaty, the United States pledged, amongotherthings,torestrain Indianincursions intoMexico. SeeTreaty ofGuadalupe Hidalgo, February 2,1848, U.S.- Mex., art. V, 9 Stat. 922.The Honorable Frank Madla - Page 3 (GA-0339)

You do not include them with your request, but we are aware of two additional treaties involving the Lipan Indians. On May 15,1846, at Council Springs, Texas, the United States and the “undersigned Chiefs, Counsellors, and the Warriors of the Comanche, Ioni, Ana-darko, Caddo, Lipan, Longwa, Keechi, Tawakoni, Wichita, and Waco Tribes of Indians” entered into atreaty.7 It is signed by P. M. Butler and M. G. Lewis for the United States. See Council Springs Treaty, supra note 7, at 49. Although itrecites the inclusion of the Lipan Indians, no signatory of the Lipan tribe appears at the end of the treaty. See id. at 49-51. In it, the representatives of the Indian tribes acknowledged themselves “to be under the protection of the United States, and of no other power, state, or sovereignty whatever.” Id. art. I, at 44.

In 1850, at Spring Creek, a treaty was entered into between the United States and the Comanche, Caddo, Lipan, Quapaw, Tawakoni, and Waco Tribes.* Itis executed by John H. Rollins for the United States and Chi-ci-to, Chi-po-ti, Ye-keh-tas-na and Keh-rauch on behalf of the Lipan. See Spring Creek Treaty, supra note 8, art. 2Oth, at 135.
Thus, we are aware of five Lipan Indian treaties, listed in chronological order as follows: Live Oak Treaty, 1838; Tehuacana Creek Treaty, 1844; Council Springs Treaty, 1846; Spring Creek Treaty, 1850; and the San Saba Treaty, 1851.

I. Abropation of Indian Treaties “Although all Indian treaties were executed over 100 years ago, unless otherwise modified, these treaties remain in effect.” Sally J. Johnson, Honoring Treaty Rights and Conserving Endangered Species after United States v. Dion, 13PUB.LAND LREv. 179, 179 (1992) (citing Tsosie v. United States, 825 F.2d 393 (Fed. Cir. 1987)). Pursuant to the Supremacy Clause of the United States Constitution, see U.S. CONST. art. VI, cl. 2, Indian treaties become the law ofthe land and supersede conflicting state laws or state constitutional provisions. See, e.g., Antoine v. Washington, 420 U.S. 194,204 (1975); United States v.Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876). Although Congress may not impair rights vested under Indian treaties, it may supersede or abrogate the treaties by legislation or subsequent treaty. See South Dakota v.Bourlund, 508 U.S. 679,687 (1993); Reich v. Great Lakes Indian Fish & Wildlife Comm ‘n,4 F.3d 490,493 (7th Cir. 1993); United States v. Sohappy, 770 F.2d 816, 818 (9th Cir. 1985); Iwanowa v. Ford Motor Co., 67F. Supp. 2d 424,459-60 (D. N.J. 1999); United States v.Michigan, 471 F. Supp. 192, 253 (W. D. Mich. 1979).

An intent to abrogate treaty rights must be expressed clearly and unequivocally, but need not be explicit where itis clear. See United States v.Dion, 476 U.S. 734,739-40 (1986). A later statute

‘Treaty with the Comanche and Other Tribes, May 15, 1846,Dorman H. Winfrey and James M. Day, THE INDIAN PAPERS OF TEXAS AND THE SOUTHWEST

1825-1916,Vol. III,Dot. No. 59, at43-52 (1995) [hereinafter Council Springs Treaty].

‘Treaty between theUnited States andthe Comanche, Caddo, Lipan, Quapaw, Tawakoni andWaco Tribes of Indians, December 10, 1850, Dorman H. Winfrey and James M. Day, THE INDIAN PAPERSOFTEXASAND THE SOUTHWEST

1825-1916, Vol. III, Dot. No. 98, at 130-37 (1995) [hereinafter Spring Creek Treaty].The Honorable Frank Madla - Page 4 (GA-0339)

or treaty must be harmonized with existing treaties to the extent possible. See Menominee Tribe v. United States, 391 U.S. 404,411(1968). However, “when a subsequent inconsistent law cannot be reconciled with aprior treaty, the subsequent law is deemed to abrogate the treaty to the extent of the inconsistency, without specific words of abrogation.” Iwanowa, 67 F. Supp. 2d at 459 (citing Breard v. Greene, 523 U.S. 371,376 (1998)). Similarly, where there is an irreconcilable conflict between a subsequent treaty and aprior treaty, the new treaty abrogates the prior inconsistent treaty orprovision therein. See id.; see also Whitney v.Robertson, 124 U.S. 190,194 (1888) (“When the two [treaties] relate to the same subject [and]

. . .are inconsistent, the last one in date will control the other.“); Farrell v. United States, 110 F. 942,951 (8th Cir. 1901).

It is important to note here that the Live Oak Treaty is essentially a pledge of perpetual friendship between the Republic of Texas and the Lipan Indians. See Live Oak Treaty, supra note 4, at 30. While it does contain some specific provisions, the Live Oak Treaty and the four subsequent treaties we examine do not relate to or establish rights to any piece or tract of land, uses of land, or particular rights that stem from the land, such as the usufi-uctuary rights of hunting and fishing. In most instances where acourt considers atreaty, aparticular right guaranteed orbestowed by the treaty is the issue. The question of whether a treaty has been abrogated in such instances, then, iswhether asubsequent legislative act or treaty interfered with the right protected orbestowed in the prior treaty as to render the prior right void. If so, the particular right, not the whole treaty, is considered abrogated. You do not inquire about aparticular aspect of, or right bestowed in, the Live Oak Treaty. See generally Request Letter, supra note 3. Instead, you ask us to opine on the wholesale validity of the entire treaty. See id. We have found no case from the federal courts that engages in that task. However, utilizing the abrogation principles recited above, we endeavor to answer your question as we think the federal courts would answer it.

II. Analvsis Legislation or a subsequent treaty may result in the abrogation of a treaty. See Kansas or Kaw Tribe v. United States, 80 Ct. Cl. 264,304 (1934). “[C]ourts must construe successive treaties in conjunction with the language of earlier treaties.” Menominee Indian Tribe v. Thompson, 161 F.3d 449,457 (7th Cir. 1998) (citing Oregon Dep ‘tofFish & wildl$k v.Hamath Indian Tribe, 473 U.S. 753,768 (1985) and Confederated Bands ofUteIndians v. United States, 330 U.S. 169,176-80 (1947)). Here, you inquire about atreaty executed in 1838. The Live Oak Treaty is followed in time by four treaties made by the same tribe. Therefore, we will examine the provisions of each ofthose treaties to determine ifthe Live Oak Treaty is abrogated by a subsequent treaty.
A. Live Oak Treaty

In order to determine if a subsequent treaty abrogates the Live Oak Treaty, it is necessary to enumerate, at least generally, the terms of the Live Oak Treaty. In “Article lst,” the Republic ofTexas promises and guarantees “peace friendship and protection, to [the] Lipan Indians while they remain peaceable and in good faith, and do not disturb the citizens

. . .of the Republic of Texas.” Live Oak Treaty, supra note 4, art. lst, at 30. Pursuant to “Art. 2nd,” the Lipan Indians promise to remain perpetual friends with the Republic. See id. art. 2nd, at 30. The Republic agrees,The Honorable Frank Madla - Page 5 (GA-0339)

in “Art. 3,” to appoint traders or to establish “trading houses” to accommodate trading between the Republic and the Indians. See id. art. 3, at 30. The Republic gives to the Chief, pursuant to “Art. 4th,” the value oftwo hundred and fifty dollars in articles and the Indians agree to deliver “all Cattle, Horses, Mules or other property” lawfully established to belong to citizens of the Republic. Id. art. 4th, at 30-3 1. In “Art. 5,” the two parties further agree, stated generally, that persons of one party that commit violence against persons ofthe other party will be handed over to Republic officials and punished under the laws of the Republic and that neither party will seek redress against the wrongdoer on its own. See id. art. 5, at 31. Finally, in “Art. 6th,” the Republic agrees to the safety of any member ofthe Lipan tribe passing through any part ofthe state in apeaceful manner. See id. art. 6th, at 31. In return, the Lipan Indians agree not to “molest[] nor disturb[]” citizens of the Republic or other persons invited to the state while passing through any part of the state. See id. at 32.

B. Tehuacana Creek Treaty

The Tehuacana Creek Treaty was executed in 1844 between the Republic of Texas and several Indian tribes, including the Lipan. See Tehuacana Creek Treaty, supra note 5. Itconsists oftwenty-two articles and contains provisions that are similar to those in the Live Oak Treaty, but also contains new provisions relating to different issues. See id. For example, the Indian tribes agree to make no treaty with any nation atwar with the people ofTexas. See id. art.III, at 115. The Indian tribes also agree not to trade “with any other people than the people of Texas,” so long as they can procure the goods they need from the established trading houses. Id. art. VI, at 115. The Republic agrees to supply the Indians with powder, lead, guns, spears and other arms for the hunting of game when peace is fully established. See id. art. VIII, at 116. The Republic also agrees that the President may send blacksmiths, mechanics and schoolmasters among the Indians for their benefit and instruction. See id. art. XV, at 116. Other provisions ofthis treaty mirror provisions ofthe Live Oak Treaty. See id. art. I, at 115 (“parties agree and declare, that they will forever live in peace, and always meet as friends and brothers”); art. VII, at 116 (Texas to establish trading houses for convenience and benefit of Indians). We find no provision in the Tehuacana Creek Treaty that clearly abrogates any ofthe provisions in the Live Oak Treaty. Accordingly, we think acourt would construe the provisions of the subsequent Tehuacana Creek Treaty to be in harmony with the Live Oak Treaty.
C. Council Springs Treaty & San Saba Treaty
The Council Springs Treaty of 1846 is the first treaty between the Lipan and the United States. See Council Springs Treaty, supra note 7; see also 9 Stat. 844 (U.S. Senate ratification). The Indian tribes that are parties to the treaty initially “acknowledge themselves to be under the protection of the United States, and of no other power, state, or sovereignty whatever.” Council Springs Treaty, supra note 7, art. I, at 44. We believe this provision is sufficient in itself to abrogate the entire Live Oak Treaty because it is wholly inconsistent with the provisions of the prior Live Oak Treaty. See Whitney, 124 U.S. at 194;Iwanowa, 67 F. Supp. 2d at 459. Pursuant to Article I, the signatory Indian tribes place themselves under the sole jurisdiction and protection of the United States to the exclusion of any other “power, state or sovereignty.” Council SpringsThe Honorable Frank Madla - Page 6 (GA-0339)

Treaty, supra note 7, art. I, at 44. We do not think this language can be harmonized with the letter and spirit ofthe prior Live Oak Treaty. See United States v.Payne, 264 U.S.446,448 (1924) (stating “while the

. . .Act, being later, must control in case of conflict, it should be harmonized with the letter and spirit ofthe treaty, so far asthat can reasonably be done”). The perpetual peace, friendship and protection guaranteed by the Republic ofTexas in the Live Oak Treaty involves protection from another power, state or sovereignty that is expressly relinquished in the Council Springs Treaty.
Moreover, the remaining terms of the Council Springs Treaty include similar terms as the Live Oak Treaty. We believe that, taken as awhole, the Council Springs Treaty reveals an intent to establish the relationship between the federal government and the tribes concerning these matters to the exclusion of any prior agreement concerning the same matters, including any agreement with the Republic of Texas. The Council Springs Treaty gives the United States the “sole and exclusive right of regulating trade and intercourse” with the Indian Tribes and to establish trading houses. Council Springs Treaty, supra note 7, arts. II,IX, at44,47; compare id. with Live Oak Treaty, supra note 4, art. 3, at30 (establishing trading houses). The Council Springs Treaty provides for the return of prisoners held by the various Indian Tribes. See Council Springs Treaty, supra note 7, art. IV, at45; compare id., with Live Oak Treaty, supra note 4, art. 4th, at 30-3 1(return of “Cattle, Horses, Mules or other property”), and art. 6th, at 31-32 (parties shall be secure when passing through territory of other party). It also provides for the’punishment of those (of the various tribes and the United States) who commit murder or robbery pursuant to the laws of the State or Territory, see Council Springs Treaty, supra note 7, art. VII, at46, and prohibits the stealing ofhorses. See id. art. VIII, at46-47; compare id. arts. VII-VIII, at 46-47, with Live Oak Treaty, supra note 4, art. 5, at 31 (parties committing violence against the other to be punished under laws of Texas). Finally, the parties pledge perpetual peace. See Council Springs Treaty, supra note 7, art. X, at48; compare id., with Live Oak Treaty, supra note 4, art. lst, at 30 (pledging peace, friendship and protection), and art. 2nd, at 30 (pledging to be perpetual friends of the Republic).

We also believe the circumstances support our conclusion that the Council Springs Treaty evinces an intent on the part ofthe parties to it that the various Indian tribes relinquish the benefits of the prior relationship with the Republic of Texas in order to avail themselves of the benefits of
arelationship with the United States. See Wichita &Affiliated Bands v. United States, 89 Ct. Cl. 378,421 (1939) (stating that the 1846 treaty “appears to have been entered into for the purpose of having the Indians acknowledge themselves to be under the protection of the United States and no other power, state, or sovereignty”). The Republic ofTexas became the State ofTexas in December 1845, see 29 Pub. Res. 1, 29th Cong., 9 Stat. 108 (1845), only months before the 1846 Council Springs Treaty. See Cook v. United States, 288 U.S. 102,112 (1933) (“In construing the Treaty its history should be consulted.“). Upon becoming a state, Texas became subject to the United States Constitution which places sole authority for Indian relations in the federal government. See U.S. CONST. art. I, 5 8, cl. 3; infra note 13. In this context, we believe that a federal court would decide that the Council Springs Treaty abrogates the Live Oak Treaty.g

‘For the samereasons, afederal court would likely determine that the Council Springs Treaty also abrogates the 1844Tehuacana Creek Treaty. However, you do not ask about the continuing validity of the Tehuacana Creek Treaty, sowe do not offer our opinion onthe matter.The Honorable Frank Madla - Page 7 (GA-0339)

As we mentioned earlier in this opinion, see supra p. 3, the 1846 Council Springs Treaty itself does not unequivocally show that the Lipan Indians executed the treaty. It recites that the Lipan Indians were aparty to the treaty, but no member ofthe Lipan tribe is shown ashaving signed the treaty.” We do observe that another document from the same time period, aproclamation by the Governor of Texas, recites that the Council Springs Treaty had been entered into by the “Comanche, Wichita, Tawehash, Waco, Keechi, Caddo, Lipan, Tonkawa, and their associate bands.“” Additionally, the United States Court of Claims recognized that the Lipan Indians were aparty to the Council Springs Treaty. See Lipan Apache Tribe v. United States, 180 Ct. Cl. 487,500 (1967) (“Under the Treaty of May 15, 1846

. . . concluded between the United States and several Texas Indian tribes, including the ‘Lepan

. ...“‘). Irrespective ofthis evidence that the Lipan Indians were aparty to the Council Springs Treaty, the 1851San Saba Treaty expressly establishes the fact. In it, the parties “acknowledge each and every article of this treaty, entered into, on the fifteenth day of May, on [sic] thousand eight hundred forty six, at Council Springs

. . . as obligatory upon us and those we represent as if we had signed and acknowledged the same.” San Saba Treaty, supra note 5, art. 2nd II, at 149. The San Saba Treaty was executed by nine members of the Lipan Tribe, including Captain John Castro. Id. art. IV, at 152.

D. Spring Creek Treaty
The Spring Creek Treaty is dated 1850. See Spring Creek Treaty, supra note 8, at 130. As with the Council Springs Treaty, the representatives ofthe various tribes “for themselves, and for those under their control and subject to their authority,

. . . acknowledge themselves to be under thejurisdiction and protection of the United States of America, and of no other Power, State
or Sovereignty whatever.” Id. art. 1st, at 130. Because we have concluded that the Council Springs Treaty of 1846 abrogates the Live Oak Treaty of 1838, we do not need to consider the effect of the Spring Creek Treaty on the Live Oak Treaty.‘*

III. The Reuublic of Texas Ouestion

Because the Live Oak Treaty about which you inquire was executed between the Lipan Indian tribe and the Republic of Texas, we think the question arises whether the Live Oak Treaty survived the Republic’s initial annexation in 1845 by the United States or its 1861 secession from and 1870 readmittance to the Union.i3 However, the execution of the 1846 Council Springs Treaty mere

“We note thatthe Ioni, Ana-darko, Caddo andLongwa tribes are alsorecited asbeing parties tothetreaty but arenotrepresented as signatories to the treaty.
“Tex. Gov. Proclamation No. 62, June 1,1846, Dorman H.Winhey andJames M.Day, THEINDIAN PAPERY OFTEXAS

ANDTHE

SOUTHWEST

1825-1916, Vol. III, Dot. No. 62, at62 (1995).

“In addition, we do not find anyrecord thattheUnited States Senate ever ratified the Spring Creek Treaty. 13Upon itsinitialadmittance totheUnion, the State ofTexas became subject totheUnited States Constitution, see Calkin v. Cocke, 55U.S. 227,235 (1852) (stating that the State ofTexas was admitted to the union onDecember 29, 1845,on an equal footing withthe original states and“alllawsoftheUnited States

. . .extended over, andtohave (continued.. .)The Honorable Frank Madla - Page 8 (GA-0339)

months after the Republic’s 1845 entrance into the United States makes resolution of the issue unnecessary. See supra pp. 5-7. We believe the United States sought the Council Springs Treaty with the various Indian tribes, including the Lipan, precisely because itrecognized that there was no longer a treaty with these particular tribes and that one was needed.

IV. Conclusion

We believe it likely that afederal court would find that the Council Springs Treaty, wherein the Lipan Indians expressly acknowledge the exclusive jurisdiction and protection of the United States less than one year after the Republic of Texas joined the United States and which includes similar terms, abrogates prior treaties with other powers, states and sovereignties, including the Live Oak Treaty with the Republic of Texas. In such acase, the Live Oak Treaty would no longer be a binding agreement.
Our opinion here is limited to the continuing validity of the Live Oak Treaty. We do not opine on the continued validity of any of the subsequent treaties executed by the Lipan Indians or any of the other Indian tribes.

full force and effect within, the State”),which givesthe federal government exclusive authority over Indians. SeeU.S. CONST.art. I, $ 8, cl.’3 (“The Congress shall have Power

. . . [t]o regulate Commerce

. . .with the Indian tribes.“). “Under the constitution, no statecan enter into anytreaty; anditisbelieved, that, since its adoption, no state,under its ownauthority, hasheld atreaty withthe Indians.” OneidaIndian Nation v.New York, 691 F.2d 1070, 1090 (2nd Cir. 1982) (citing Worcesterv. Georgia, 31U.S. (6Pet.) 515,581 (1832)). The United States acquired sovereignty over Indians inTexas through the annexation ofTexas. See Choctaw & Chickasaw Nations v. UnitedStates & Wichita, 34 Ct. Cl. 17, 72 (1899) (stating that Treaty of May 15, 1846 “was made in Texas, with Texas tribes, because of the sovereignty which theUnited Stateshad acquired over [the Indians] by the annexation”).
Texas seceded from the Union on February 1, 1861. See Act approved Feb. 1, 1861, reprinted in4 H.P.N. GAMMEL,

THELAWSOF

TEXAS1822-l 897, at 1519,15 19-20 (Austin Gammel Book Co. 1898). Texas wasreadmitted totheUnion onMarch 30,187O. SeeActapproved Mar.30,1870, reprinted in6H.P.N. GAMMEL, THELAWSOFTEXAS 1822-1897,at3,11-12 (AustinGammelBookCo. 1898)(The firsttenvolumes 0fH.P.N. GAMMEL,THELAWSOFTEXAS 1822-l 897 canbe accessed online through theUniversity ofNorth Texas website, see http://texinfo.library.unt.edu/ lawsof?exas/browse.htm.).The Honorable Frank Madla - Page 9 (GA-0339)

SUMMARY

An Indian treaty may be abrogated by subsequent legislation
or treaty. The Lipan Indians executed four treaties after executing the 1838 Live Oak Treaty with the Republic of Texas. It is likely a federal court would find that the 1846 Council Springs Treaty between the Lipan Indians and the United States abrogated the 1838 Live Oak Treaty. We do not opine on the continued validity of subsequent treaties.

eneral of Texas

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee

Charlotte M. Harper Assistant Attorney General, Opinion Committee