Benally v. Marcum

• Decision Date: 10 September 1976
• Docket Number: No. 10373,10373
• Citation: 1976 NMSC 54,89 N.M. 463,553 P.2d 1270
• Parties: Johnson BENALLY, Petitioner-Appellant, v. Roy MARCUM, Judge of the Municipal Court of the City of Farmington, and the City of Farmington, Respondents-Appellees.
• Court: New Mexico Supreme Court

Page 1270

553 P.2d 1270

89 N.M. 463

Johnson BENALLY, Petitioner-Appellant, v. Roy MARCUM, Judge of the Municipal Court of the City of Farmington, and the City of Farmington Respondents-Appellees.

No. 10373.

Supreme Court of New Mexico.

Sept. 10, 1976.

Robert M. Strumor, Richard W. Hughes, Jeanne F. Franklin, Claudeen B. Arthur, Shiprock, for appellant.

Dwight D. Arthur, Farmington, for appellees.

OPINION

MONTOYA, Justice.

The petitioner is an enrolled member of the Navajo Tribe who resides on the Navajo Reservation, within San Juan County and near the City of Farmington. The respondents are a municipal judge of the City of Farmington and the City of Farmington itself. The petitioner sought a writ of prohibition in the District Court of San Juan County on the basis of the following facts. Farmington police officers attempted to stop Benally within the city limits of Farmington for allegedly violating, in their presence, city ordinances which prohibit driving while under the influence of alcohol, driving recklessly and causing an accident involving damage to property. Eluding the police officers, Benally allegedly fled through the streets of Farmington to the Navajo Reservation. He was finally apprehended by the officers within the reservation, brought back to Farmington, incarcerated in the city jail, and charged with the violation of the municipal ordinances mentioned. He was released on bond. Before entering a plea to the charges, Benally moved by special appearance in the municipal court to dismiss the charges for lack of jurisdiction. The motion was denied. Benally then obtained a temporary writ of prohibition in the district court prohibiting the municipal judge from proceeding in the case. Upon a hearing, however, the district court dissolved the temporary writ and dismissed the petition. Benally appeals from this order of the district court.

On appeal, Benally contends that the order of the district court was erroneous because the Farmington city police (1) exceeded their statutory powers; (2) violated the sovereignty of the Navajo Tribe; and (3) violated his constitutional rights.

We need not and do not rule on the first contention because we agree with the second, that the arrest was illegal as it violated the sovereignty of the Navajo Tribe. However, the third contention, that the arrest violated constitutional due process, is without merit. There is no allegation or evidence of lack of probable cause to arrest, police brutality, or that an arrest warrant was constitutionally required in this instance.

The arrest of Benally violated tribal sovereignty because it circumvented and was contrary to the orderly procedure for extradition from the Navajo Reservation provided for in 17 Navajo Tribal Code §§ 1001, 1002 (1970):

' § 1001. Indian committing crime outside Indian Country--Apprehension on Reservation

'Whenever the Chairman of the Navajo Tribal Council is informed and believes that an Indian has committed a crime outside of Indian Country and is present in Navajo 'Indian Country' and using it as an asylum from prosecution by the state, the Chairman may order any Navajo policeman to apprehend such Indian and deliver him to the proper state authorities at the Reservation boundary.

' § 1002.--Hearing; release

'If any person being arrested as provided in section 1001 of this title so demands, he shall be taken by the arresting policeman to the nearest Court of the Navajo Tribe, where the judge shall hold a hearing, and if it appears that there is no probate cause to believe the Indian guilty of the crime with which he is charged off the Reservation, or if it appears that the Indian probably will not receive a fair trial in the state court, the judge shall order the Indian released from custody.'

The conclusion that control of the extradition process is inherent in the tribal sovereignty of the Navajo Tribe was also reached in the case of State of Arizona ex rel. Merrill v. Turtle, 413 F.2d 683, 685--86 (9th Cir. 1969), where the circuit court stated:

'The initial question presented by this case, then, is whether Arizona's claim to extradition jurisdiction over Indian residents of the Navajo Reservation is subject to the tests of non-interference with the right of tribal self-government laid down in Williams ( Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)), or is free from those limitations by reason of Article IV, Section 2 of the Constitution.

'Article IV, Section 2, read literally, purports to impose upon the governor of each State a duty to deliver up fugitives charged with a crime in a sister state. The constitutional mandate requires exercise of the state's lawful jurisdiction in responding to the extradition demands of sister states, but it does not itself attempt to define the reach of that jurisdiction. We have found no authority bearing directly upon the relationship between Article IV, Section 2, and treaty-protected Indian lands and conclude that with regard to the exercise of extradition jurisdiction over Indian residents of the Navajo Reservation, the constitutional mandate must be interpreted in light of the Treaty of 1868 and the long history of the principle of retained tribal sovereignty.

'As indicated above, the historical development of this principle down to its contemporary formulation in Williams prohibits the State of Arizona, in the absence of specific Congression authorization, from extending its laws or process to the Navajo Reservation if to do so would interfere with tribal self-government or impair a right granted by federal law. We have been referred to no specific Congressional action limiting the power of the Navajo tribal government to deal with the extradition of Indians resident within the Reservation or granting to the State of Arizona the authority to exercise extradition jurisdiction over such residents. In these circumstances, Arizona's right to exercise the jurisdiction claimed must be determined in light of whether such exercise would 'infring(e) on the right of reservation Indians to make their own laws and be ruled by them.' (Williams v. Lee, supra at p. 220 of 358 U.S., at p. 271 of 79 S.Ct.) or, as the Williams' test was characterized by the court in Kake, Organized Village of v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1961), 'whether the application of that law would interfere with reservation self-government.' Id. at p. 67, 82 S.Ct., at p. 567.

'Applying these considerations, we conclude that Arizona's exercise of the claimed jurisdiction would clearly interfere with rights essential to the Mavajo's self-government. The essential and intimate relationship of control of the extradition process to the right of self-government was recognized long ago in Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717 (1861), holding that there is no power, state or federal, to compel a state to perform its constitutional duty of extradition.

'Furthermore, the right of the Navajo Tribe to exercise power over Indian residents of its reservation appears to have been recognized by the federal government from the outset by the terms of the Treaty of 1868. * * *'

We find this reasoning dispositive and hold that the arrest was illegal.

The question remains, however, whether the illegality of Benally's arrest was sufficient to divest the Farmington Municipal Court of jurisdiction to try him for the alleged offenses. In State v. Wise, 58 N.M. 164, 267 P.2d 992 (1954), this court held that the felony conviction of certain defendants would not be overturned on the grounds that they had been pursued from New Mexico into Texas, where they had been arrested and brought back to this State. That case has no application to the present one, however, since a felony was involved there and only misdemeanors are involved here. The common law doctrine of fresh pursuit allows a peace officer to arrest beyond the boundaries of his jurisdiction only in pursuit of a person believed to have committed a felony. Gattus v. State, 204 Md. 589, 105 A.2d 661 (1954); 5 Am.Jur.2d Arrest § 51 (1962). New Mexico has adopted the common law rule by statute, limiting fresh pursuit to felonies. See §§ 41--2--1--41--2--5, N.M.S.A.1953 (2d Repl.Vol. 6, 1972).

State v. Wise, supra, was based in part on Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), and Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). The doctrine of those cases is that it is no defense to a criminal prosecution that the defendant was illegally brought before the court. The respondents argue that this...