Begay v. Miller

• Decision Date: 02 October 1950
• Docket Number: No. 5387,5387
• Citation: 70 Ariz. 380,222 P.2d 624
• Parties: BEGAY v. MILLER, Sheriff.
• Court: Arizona Supreme Court

Page 624

222 P.2d 624

70 Ariz. 380

BEGAY v. MILLER, Sheriff.

No. 5387.

Supreme Court of Arizona.

Oct. 2, 1950.

Rawlins, Davis, Christy, Kleinman & Burrus, of Phoenix, for petitioner.

Platt & Greer, of St. Johns, for respondent.

H. S. McCluskey, Phoenix, for Industrial Commission, amicus curiae.

UDALL, Justice.

Petitioner, Roland Begay, a Navajo Indian, is seeking by habeas corpus his release from incarceration in the Apache County jail to which he was committed after having been found guilty of contempt of the superior court of that county for failure to comply with the terms of a divorce decree. Presented is a question of first impression not only in this court but insofar as we have been able to determine in any appellate court in the United States.

The facts are that the petitioner and Alice R. Begay obtained a marriage license under the provisions of Sec. 63-106, A.C.A.1939, signed by the clerk of the Superior Court of Apache County, Arizona, and were married on the reservation in a civil ceremony. Both of the contracting parties are non-emancipated members of the Navajo Indian Tribe and at all times were residing upon that portion of the Navajo Reservation lying within the confines of Apache County.

Marital troubles having developed, Roland Begay, the petitioner, filed a divorce complaint against his wife in the Navajo Court of Indian Offenses, a tribal court. A hearing was held, both parties being before the court, and a formal written decree of divorce was granted to the petitioner. The decree recited that there were no children involved in the case. Thereafter, Alice R. Begay, as plaintiff, filed suit for divorce against Roland Begay in the Superior Court of Apache County. Summons was issued and served upon him on the Indian reservation. He failed to answer and a purported judgment and decree of divorce was rendered in favor of the plaintiff and against the petitioner as defendant.

This decree allowed alimony to the wife and support money for the maintenance of a minor child born subsequent to the date of the tribal divorce, together with costs and counsel fees. Inasmuch as the petitioner made no payments under this decree, some sixteen months later the plaintiff filed her affidavit charging contempt of court. An order to show cause was issued, in response to which the petitioner filed a motion to quash upon practically the same grounds as now urged for his release upon habeas corpus. After a hearing, the court filed a written opinion and order denying the motion to quash and finding that Roland Begay was guilty of contempt of court for failure to abide by the terms of the decree of divorce theretofore entered. It was judicially established that he was in arrears on his payments in the sum of $1175, which amount he was ordered to pay forthwith. Thereafter, a warrant and commitment for contempt was issued against petitioner and he was taken into custody on the reservation by the sheriff of Apache County and incarcerated in the county jail.

Petitioner then made application to this court for a writ of habeas corpus, which was granted. Upon the return date the sheriff produced the body of the petitioner in court and made answer and return to the writ. At the conclusion of oral argument, upon the assurance of the chairman of the Navajo Tribal Council that the petitioner would, if not discharged, be surrendered to the sheriff without cost to the county, we released the petitioner on his own recognizance.

A ruling was reserved at that time on respondent's motion to quash which was based upon petitioner's failure to comply with the rules of court. This inconsequential motion is now denied in order that we may determine on their merits the serious matters raised by the petition.

Basically, the legal question presented is one of jurisdiction, i.e. did the Apache County Superior Court, under the circumstances here shown, have jurisdiction to enter the decree of divorce in question? Secondarily, there is raised the right of a peace officer of the state to enter upon an Indian reservation for the purpose of serving a legal process in any matter wherein the parties are both tribal Indians residing on the reservation and the subject matter of the suit deals only with the controversy between themselves.

It is the contention of the petitioner that the marriage in question was effectually dissolved by the Navajo Court of Indian Offenses and that the Superior Court of Apache County was bound to accord recognition to such decree, and hence the state court lacked jurisdiction to grant the subsequent decree of divorce to Alice Begay and to issue the order for contempt under which the petitioner was incarcerated. Two claims are advanced in support of this contention. Primarily, it is argued that the Navajos are treaty Indians inherently possessing a limited right of self-government, which has not been delegated away either by express grant or by agreement with the federal government or with an individual state. Secondly, it is asserted that Congress through powers delegated to the Interior Department has given the tribal court jurisdiction over domestic relations between members of the Navajo tribe. The fact that these two claims are inconsistent is of no moment for if the tribal court had jurisdiction from any source and properly exercised its jurisdiction over the marital status of petitioner, then such action was final and binding on the parties.

Counsel for the respondent on the other hand not only directly challenge both contentions of the petitioner but assert that the Navajo Court of Indian Offenses is nothing more than the product of a mere administrative fiat, set up by and subject to the caprice of the Indian Bureau, and that such a court cannot be recognized under either the rules of comity or the 'Full Faith and Credit clause' of the Federal Constitution, Article 4, § 1. Furthermore, it is contended that where the Congress by express enactment has declared all Indians citizens of the United States of America, 43 Stat. 253, Title 8 U.S.C.A. §§ 3 and 601 note, it would deprive Alice Begay, wife of petitioner, of her rights under the equal protection clause of the 14th Amendment to the United States Constitution to hold that she could not go into the superior court and have her marital rights settled in that judicial tribunal. Last, respondent maintains that when petitioner and wife applied to the civil authorities for a state marriage license and were married pursuant thereto in a civil ceremony, that these parties acknowledged state jurisdiction over their marital status and any severance of the marital relationship must necessarily be in accordance with and under the sanctity and authority of the state.

At the outset it is well to recognize that the pathways are not well marked in the field of Indian law generally and particularly is this true in the field of domestic relations of tribal Indians. This lack of uniformity is understandable when one considers the varying customs and laws relative to marriage and divorce prevailing amongst the several tribes in the continental United States. Coupled with this are many special treaties and particular tribal constitutions adopted by sanction of congressional enactments, which are factors contributing to the diversity. For an authoritative discussion of these matters, see Felix S. Cohen, Handbook of Federal Indian Law, Sec. 5, Tribal Regulation of Domestic Relations, p. 137. For reasons stated we feel there is no point to be gained by attempting to analyze the many reported decisions, however, we recognize that there is a distinction between such cases as Worcester v. State of Georgia, 6 Pet. 515, 8 L.Ed. 483; Cyr v. Walker, 29 Okl. 281, 116 P. 931, 35 L.R.A.,N.S., 795; and Raymond v. Raymond, 8 Cir., 1897, 83 F. 721, involving suits affecting the Cherokee and Pottawatomie tribes where there was an express treaty provision recognizing them as independent nations and giving the courts of the tribal territory exclusive jurisdiction over members of these tribes, and the instant situation where there is no such treaty provision.

All writers on the subject are agreed that the legal relationship existing between the United States Government, state governments and tribal Indians within their jurisdiction is difficult of precise description. Furthermore, all are in accord that such relationship is a peculiar and anomalous one. See 13 Yale Law Journal, p. 250 et seq. Except for a few tribes, tribal Indians are still regarded by the federal government as requiring special consideration and protection. Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456. Even though the Indians have been granted the rights of citizenship, the Federal Courts have consistently held that the congressional power over tribal Indians was not diminished thereby. United States v. Waller, 243 U.S. 452, 37 S.Ct. 430, 61 L.Ed. 843. See also 19 Cal.Law Review 513.

Indian tribal custom marriage and divorce have long been recognized by both the federal and state governments. 17 Am. Jur., Divorce and Separation, Sec. 11; 55 C.J.S., Marriage, § 4c; Moore v. Wa-Me-Go, 72 Kan. 169, 83 P. 400; Kobogum v. Jackson Iron Co., 76 Mich. 498, 43 N.W. 602; La Framboise v. Day, 136 Minn. 239, 161 N.W. 529, L.R.A.1917D, 571; Johnson v. Johnson's Adm'r, 30 Mo. 72, 77 Am.Dec. 598; Ortley v. Ross, 78 Neb. 339, 110 N.W. 982; Buck v. Branson, 34 Okl. 807, 127 P. 436, 50 L.R.A., N.S., 876; Jones v. Laney, 2 Tex. 342. The basis of such recognition is the fact that the Indians, prior to the adoption of either the federal or state constitutions, exercised sole control of domestic relations among their own peoples. Thus, jurisdiction of the Navajo Indians over their marriage and divorce has continued as it existed before the Indians were removed to the reservation by virtue of treaty, 9 Stat. 974 and 15 Stat. 667. Nowhere is this concept expressed more clearly than in the early case of Wall v. Williamson, 1844...