Opinion
January 15, 1864
Members of the Narragansett tribe of Indians, residing and owning lands in a school district of the town of Charlestown, are not entitled to send their children to the public school of that district; the State having provided for the gratuitous education of such children, only at the Indian School in Charlestown.
THESE were petitions to the General Assembly from two members of the Narragansett tribe of Indians, complaining, that though residents of, and paying taxes in, school district No. 5, in the town of Charlestown, they were not permitted to send their children to the district school of that district. Upon these petitions the General Assembly, at their May session, 1863, passed the following resolution: —
" Resolved, That the subject matter of the petitions of Gideon Ammons, Jr., and Joshua H. Nokake, relating to school difficulties and taxes in school district No. 5, in Charlestown, be referred to the Commissioner of Public Schools, who shall notify and hear the parties and decide thereon, notwithstanding any previous decision of the Commissioner heretofore made; and that he shall have full power to decide the same, and lay said cases before one of the Justices of the Supreme Court, as provided by law in case of appeals under the school laws."
The Commissioner of Public Schools heard the parties after full notice, at the school house in said district, on the 6th day of January, 1864, and ascertained the following facts: that the petitioners are members of the Narragansett tribe of Indians, residing in district No. 5, in said town of Charlestown, said Nokake possessed of real estate lying in said district, and said Ammons also possessed of real estate in said district, formerly a portion of the "Indian lands," but conveyed to said Ammons in fee, by authority of the General Assembly; that previous to, and during the year, 1859, the said Ammons and Nokake sent their children to the district school of said district, and that during this time, repairs were made upon the school house and outbuildings of said district, for which the petitioners, in common with other owners of real estate in said district, were taxed and paid their taxes; that some time in the year 1859, the then trustee of said school district expelled the children of the petitioners from said district school, and that when, in 1861 or 1862, said children were again sent to said school, they were again expelled therefrom by the present trustee, in accordance with instructions of said district; that during a portion of the time that said children attended said school, rate bills for wood, c., were assessed against the petitioners, a portion of which has been paid, and a portion, owing to some misunderstanding between the parties, has not been paid; that the distance from the residences of the petitioners to the school house of said district is very convenient, but that both the distance and the way to the "Indian school" are very inconvenient.
Upon the question of the right of the petitioners to send their children to the district school of their district, under the facts aforesaid, the Commissioner of Public Schools decided, that as no law excluded the children of the petitioners from said school, they should, in equity, be allowed to attend the same, provided, the petitioners paid what rate bills and other charges assessed against them are now due, at the same rate and in the same manner that others of the district have paid them; and that said privilege shall be allowed to said children so long as the petitioners are residents of said district and are possessed of real estate lying therein, and shall continue to pay such taxes and rate bills as shall be assessed against them under the same circumstances and in the same ratio as apply to all others in said district, and no longer.
The parties having requested that the facts of the case, with the decision of the Commissioner, should be submitted to one of the Judges of the Supreme Court, the Commissioner of Public Schools submitted the above statement of facts and decision to the Chief Justice of said court, for his decision.
PETITIONS.
I do not agree with the Commissioner of Public Schools, that no law excludes the children of the petitioners from the public school of the district in which they and their parents reside; not indeed by express words, but by plain, if not by necessary implication.
The General Assembly has performed the duty, charged upon that body by the twelfth article of the constitution, to diffuse knowledge and virtue amongst the people of the State by the promotion of public schools, not only by wisely providing by law for the organization and government of such schools, but by an annual appropriation for their support of a large sum of money, by far the greater part of which is, by law, to be distributed amongst the several towns of the State "in proportion to the number of children therein, under the age of fifteen years, according to the census of the United States then last preceding," and the remainder, "in proportion to the number of school districts in each town, corporate or otherwise," on condition, that to receive its proportion of the greater sum, a town must raise, by tax, for the support of its public schools, a sum equal to one-half of such proportion. Rev. Stat. Ch. 59, §§ 1, 2 and 4. The whole sum appropriated by the State is, by law, denominated "teachers' money," and is to be exclusively applied to the wages of teachers. Ib. § 3. The public school of district No. 5, in the town of Charlestown is, in common with the other like schools of that and other towns in the State, supported, in the main, by this appropriation, and out of a limited rate bill, "to be paid by the persons attending school, or by their parents, employers or guardians, towards the expense of fuel, books, and other expenses, including estimated deficiencies of payments." Rev. Stats. Ch. 64, §§ 9 and 10.
In further performance of this constitutional duty, the General Assembly has, in addition to the district schools in Charlestown, thus provided for, established by law there an Indian school, for the education of the members of the Narragansett tribe, a mixed remnant of which is still seated in that town, to be supported by an annual sum out of the general treasury, applicable to the purchase of books, as well as to the payment of the teacher, for such school; and in the last section of the chapter of the Revised Statutes, in which this school is created and endowed, has expressly enacted that "in the apportionment of the public money by the Commissioner of Public Schools and by the school committee of the town of Charlestown, the Indian tribe shall not be included." Rev. Stats. Ch. 142, §§ 1 and 4. The reason for this last provision obviously is, that as the gratuitous education of the children of the tribe in Charlestown is separately cared for out of the public bounty, the district schools of the town should receive no State aid for that purpose. The law, in my judgment, by informing us where alone the education of the children of the petitioners, by the State, is provided for, has informed us to what school they must go to receive it. It may be more convenient for them, as suggested by the Commissioner, that they should receive it in the school house of district No. 5; but no provision is made for it there, whilst ample provision, it is to be presumed, is made for it at the Indian school, created and endowed for the exclusive use of their tribe.
The conduct of the district, in permitting the petitioners at one period, some years since, to send their children to the district school, and, during that period, in taxing their lands within the district for the repair of the district school house and exacting of them the usual rate bills, determines nothing in respect to the right of the petitioners to send their children to the district school. If, at that time, the petitioners chose to send, and the district to receive, their children into the district school upon those terms, it was competent for them to do so; and, at all events, can create no vested right in the petitioners to continue to send their children to that school for all time thereafter.
For these reasons, I reverse the decision of the Commissioner of Public Schools, and decide, that the trustee of school district Number 5, in the town of Charlestown, in excluding, as instructed by the district, the children of the petitioners from the school of that district, violated no legal right of the petitioners or of their children.
JANUARY 15th, 1864.