Heritage, Summer 2005 Page: 20
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An Historic Legal OpinionU.S.
ABROGATED REPUBLIC OF TEXAS TREATY
WITH LIPAN APACHES
By Marshall J. Doke Jr.
One hundred and sixty seven years after it was executed, an 1838 historic document
is the subject of a ruling by Texas Attorney General Gregg Abbott.
There is no better example of the past
meeting the present than in resolving
legal issues. This was illustrated recently
when Texas Attorney General Greg
Abbott issued a legal opinion (No. GA0339)
on July 18, 2005, concluding that
the January 8, 1838, "Live Oak Treaty"
between the Republic of Texas and the
Lipan Apache Indians is no longer a binding
The opinion was issued at the request of
Texas State Senator Frank Madla, chair of
the Senate Committee on Intergovernmental
Relations (only committee chairs
can ask the attorney general for a legal
opinion). The opinion said the request
was without "factual background or context."
The Lipans were one of the two principal
groups of the Texas Apache Indians
(the other being the Mescaleros) and were
generally friendly with the Anglo settlers
at the time of Texas' independence. The
Lipans previously made treaties with the
Mexican government, the primary objective
of both groups being to help each
other against the Comanche Indians. One
young Lipan chief, Flacco, received a
Texas Ranger commission from Sam
Houston and served under the legendary
Ranger John C. (Jack) Hays. Flacco was
killed in 1842 returning from a Ranger
The preamble to the 1838 Live Oak
Treaty recited that its purpose was to
secure the peace and perpetual friendship
between the Republic of Texas and the
Lipan tribe of Indians. Texas guaranteed
peace, friendship, and protection to the
Lipan Indians while they remained
"peaceable" and in good faith and did not
"disturb" the citizens of Texas. The Lipan
Indians promised to remain perpetual
friends with the Republic.
In other provisions of the Live Oak
Treaty, Texas agreed to appoint traders or
to establish "trading houses" to accommodate
trading between the Republic
and the Indians and agreed to give Lipan
Chief Castro the value of $250 in articles.
The Indians agreed to deliver all
cattle, horses, and other property belonging
to citizens of the Republic. Indians or
Texas citizens committing violence
against the others were to be handed over
to the Republic for justice, and neither
party to the Treaty was to seek redress
against the wrongdoer on its own.
In the Treaty's final provision, the
Republic agreed to the safety of any member
of the Lipan tribe passing through any
part of Texas in a peaceful manner. In
return, the Lipan Indians agreed not to
molest or disturb citizens of Texas or other
persons invited to the state while passing
through any part of the state.
In his analysis of the legal question,
Texas Attorney General Abbott discussed
four other treaties with the Lipan
Indians: the Tehuacana Creek Treaty of
1844, Council Springs Treaty of 1846,
Spring Creek Treaty of 1850, and the
San Saba Treaty of 1851. He said that,
regardless of their age, these treaties
remain in effect "unless otherwise modified."
Although Congress may not
impair rights vested under Indian
treaties, it may supersede or abrogate the
treaties by legislation or subsequent
The Attorney General concluded that
the Live Oak Treaty was abrogated (ended
or terminated by "authority") by the
Council Springs Treaty of 1846, the first
treaty between the Lipan Indians and the
United States. This was because the
Indian tribes acknowledged themselves to
be under the protection of the United
States and of "no other power, state, or
sovereignty whatsoever." This acknowledgement
and other provisions were
directly contrary to the Live Oak Treaty.
The Attorney General's opinion, therefore,
was that the Live Oak Treaty is no
longer a binding agreement.
The Attorney General's opinion left
unanswered why the request was submitted.
An Austin American Statesman editorial
on July 23, 2005, reported that
Senator Madla was asked to request the
opinion by El Paso Senator Eliot
Shapleigh, who was asked by a Lipan
descendant to do so (apparently hoping to
win official recognition for the tribe).
The Attorney General's opinion resolved
no burning legal controversies, but it
reviewed an interesting aspect of our early
Texas history. As such, the opinion provides
an additional tool for history teachers
and students. The opinion is available on
the Internet at http://www.oag.state.tx.us/
Doke is a lawyer in the Dallas office of
Gardere Wynne Sewell LLP and is chairman
of the board of the Texas Historical
HER I TA GE U SUMMER 2005
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Texas Historical Foundation. Heritage, Summer 2005, periodical, Summer 2005; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth45369/m1/20/: accessed October 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas Historical Foundation.