Francisco v. State
| Decision Date | 28 October 1975 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 25 Ariz.App. 164,541 P.2d 955 |
| Parties | Edmund FRANCISCO, Petitioner, v The STATE of Arizona, the Honorable J. Richard Hannah, Judge of the Pima County Superior Court, and the Pima County Superior Court, Respondents. 1969. |
| Court | Arizona Court of Appeals |
We are asked in this special action proceeding to determine whether the respondent court abused its discretion in denying petitioner's motion to dismiss an action brought against him by the State of Arizona in the name of Veronica Toro to determine petitioner's alleged paternity of Veronica's child, Johnathan. He claimed lack of jurisdiction over his person on the ground that the Pima County deputy sheriff who served him was without authority within the exterior boundaries of the Papago Indian Reservation.
Petitioner and the mother of the child are Papago Indians. The conception is alleged to have occurred off the reservation. The child was born at Tucson Medical Center in Tucson. The mother and child have resided in Tucson since his birth. Petitioner resides, and process was served, within the exterior boundaries of the Papago Indian Reservation.
The issue is whether exertion by the respondent court of in personam jurisdiction over the petitioner was proper. This is an appropriate case for considering relief by way of special action since petitioner ought not to be put to the expense of litigating the matter if the court is indeed without jurisdiction. See Magidow v. Coronado Cattle Company, 19 Ariz.App. 38, 41, 504 P.2d 961 (1972).
Petitioner's general contention is that the State of Arizona, by way of Article XX Paragraph Fourth of its Constitution, passed in compliance with Arizona's Enabling Act, 36 Stat. 557, 569, ceded all of its interest, both governmental and proprietary, in reservation land to the United States as trustee for the various Indian tribes. It therefore follows, he contends, that jurisdiction of the superior court over Indians ends at the exterior boundaries of the reservation. He cites Martin v. Denver Juvenile Court, 177 Colo. 261, 493 P.2d 1093 (1972) as authority for this contention.
While Martin held that a South Dakota deputy sheriff was without authority to serve process on an Oglala Sioux Indian within the exterior boundaries of the Pine Ridge Indian Reservation, it reached this conclusion by applying South Dakota law interpreting its constitutional adaptation of its Enabling Act differently than Arizona's interpretation of its Enabling Act. See Smith v. Temple, 82 S.D. 650, 152 N.W.2d 547 (1967). Two other jurisdictions have held that service of process by a deputy sheriff upon an Indian on the reservation was proper. See State Securities Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786 (1973) and Bad Horse v. Bad Horse, 163 Mont. 445, 517 P.2d 893 (1974), cert. denied, 419 U.S. 847, 93 S.Ct. 83, 42 L.Ed.2d 76 (1974).
Arizona's Enabling Act was interpreted by our Supreme Court in Porter v. Hall, 34 Ariz. 308, 271 P. 411 (1928), a case involving the Pinal County Recorder's refusal to enter the names of the Pima Indian plaintiffs on the great register of Pinal County on the ground that they were not residents of the State of Arizona. Though it was not until 1948 that the Indians of Arizona were recognized as entitled to the franchise, Porter recognized their Arizona residency, rejecting the Recorder's contention that the Pima Indian Reservation was politically and governmentally outside the jurisdiction of the state. After discussing the cases of Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237 (1879) and Langford v. Monteith, 102 U.S. 145, 26 L.Ed. 53 (1880), the Arizona Supreme Court stated:
'We have no hesitancy in holding, therefore, that all Indian reservations in Arizona are within the political and governmental, as well as geographical boundaries of the state, and that the exception set forth in our Enabling Act applies to the Indian lands considered as property, and not as a territorial area withdrawn from the sovereignty of the state of Arizona.' 34 Ariz. at 321, 271 P. at 415.
The case of Harkness v. Hyde, supra, held that the Shoshonee Indian Reservation was 'beyond the jurisdiction, legislative or judicial, of the Government of Idaho, as if it had been set apart within the limits of another country or of a foreign state,' and therefore that '(t)he process of one of its courts, consequently, served beyond those lines, could not impose upon the defendant any obligation of obedience, and its disregard could not entail upon him any penalties.' 25 L.Ed. at 237. Service by the county sheriff upon the defendant at his place of residence on the reservation was therefore held to be an 'unlawful act' which gave the Idaho courts no personal jurisdiction over the defendant.
In Langford v. Monteith, supra, the United States Supreme Court qualified its position in Hyde by stating that it relied in the case upon an imperfect extract from the Treaty with the Shoshonees found in the brief of counsel which led the Court to believe that the Shoshonee Treaty contained a clause similar to one in the Treaty with the Shawnees guaranteeing that the lands of the Tribe should never be brought within the bounds of any state or territory or subject to the laws thereof. The Court subsequently found that no such clause was contained in the treaties with any Indian Tribe within the exterior boundaries of Idaho and held that in the absence of such a clause, the Idaho Enabling Act did not remove Idaho's jurisdiction from lands held by those tribes and that 'process may run there, however the Indians themselves may be exempt from that jurisdiction.' 26 L.Ed. at 54.
The issue of the validity of service of process upon an Indian by a deputy sheriff within the boundaries of a reservation was first raised in Arizona in the case of Begay v. Miller, 70 Ariz. 380, 222 P.2d 624 (1950). That case dealt with a divorce action between two Navajos which was begun in tribal court. After the decree was granted to the husband, the wife brought a second divorce action in the state court. Summons was served upon the husband on the reservation. He did not appear to answer and a second decree was rendered in favor of the wife ordering the husband to pay support and maintenance. He ignored the superior court decree and the wife filed an affidavit charging contempt. After a hearing, the husband was found to be in contempt of the Arizona decree. He was arrested on the reservation by the Sheriff of Apache County and incarcerated in the county jail. The Arizona Supreme Court granted his application for a writ of habeas corpus and held that the superior court lacked subject matter jurisdiction to enter the second decree for the reason that the tribal decree was conclusive. Since the decree forming the basis of the contempt order was a nullity, the petitioner was entitled to his release and issue of the validity of service of process was not reached.
The next time the issue was raised was in Williams v. Lee, 83 Ariz. 241, 319 P.2d 998 (1958). In that case the plaintiffs were operating a trading post on the Navajo Reservation. They sold certain articles to the Navajo defendants on credit, and when the balance was not credit, and brought suit in superior court. Process was served and a writ of attachment issued by the Sheriff. The Arizona Supreme Court held the service of process valid, but held the writ of attachment invalid for the reason that federal and tribal interests pre-empted that of the state and the superior court was therefore without subject matter jurisdiction to issue the writ. The United States Supreme Court in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) reversed the Arizona Supreme Court on the ground that the superior court not only lacked jurisdiction to issue the writ, but lacked subject matter jurisdiction over the entire controversy, holding that 'to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves.' 358 U.S. at 223, 79 S.Ct. at 272. This decision, as well as the Arizona Supreme Court decision in Begay, was based on the issue of lack of subject matter jurisdiction, leaving the issue of the validity of service unresolved.
We are inclined in the case at bench to follow the language of the Arizona Supreme Court in the Williams case which appears at 83 Ariz. 244, 319 P.2d 1000:
'Our view is that if the subject matter of the litigation is one that the state court has jurisdiction to try and determine and the federal government has not reserve sole and exclusive jurisdiction over the territory involved, the state officers may enter such territory under the state's sovereign authority and serve the necessary process to enable it to exercise its legitimate jurisdiction.'
We believe this statement still to be the law in Arizona, not having specifically been addressed by the United States Supreme Court. We note however, that an examination of the recent case of McClanahan v. State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973) is appropriate here, for the decision does much to restrict former Arizona interpretations of our Enabling Act.
Division One of this court decided McClanahan v. State Tax Commission, 14 Ariz.App. 452, 484 P.2d 221 (1971) () by attempting to follow the United States Supreme Court opinion in Williams. The issue in the case was the ability of the State Tax Commission to tax a Navajo Indian's income earned wholly within the boundaries of the Reservation. Division One reasoned that the imposition of such a tax did not infringe upon the tribal right...
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