Harrison v. Laveen

• Decision Date: 15 July 1948
• Docket Number: 5065
• Parties: HARRISON et al. v. LAVEEN
• Court: Arizona Supreme Court

196 P.2d 456

67 Ariz. 337

HARRISON et al. v. LAVEEN

No. 5065

Supreme Court of Arizona

July 15, 1948

Appeal from Superior Court, Maricopa County; Thomas J. Croaff Judge.

Reversed and cause remanded.

Richard F. Harless and Lemuel P. Mathews, both of Phoenix, and Ben B Mathews, of La Mesa, California, for appellants.

Francis J. Donofrio, County Atty., Warren L. McCarthy, Deputy County Atty., both of Phoenix, for appellee.

T Vincent Quinn, Asst. Atty. Gen., Frank E. Flynn, U. S. Atty. for Dist. of Arizona, and Charles B. McAlister, Asst. U. S. Atty. for Dist. of Arizona, both of Phoenix, James E. Curry and Frances Lopinsky, both of Washington, D. C., and Charles MacPhee Wright, of Tuscon (Felix S. Cohen, of Washington, D. C., of counsel), amici curiae.

Udall, Justice. Stanford, C. J., and LaPrade, J., concur.

OPINION

Udall, Justice.

The right of American Indians to vote in Arizona elections for state and federal officers has after two decades again arisen, like Banquo's ghost, to challenge us.

Frank Harrison and Harry Austin, members of the Mohave-Apache Indian Tribe, residing on the Fort McDowell Indian Reservation, which lies wholly within the Scottsdale precinct of Maricopa County, Arizona, sought to register preparatory to exercising their claimed right of franchise. When Roger G. Laveen, county recorder of said county, refused to permit them to do so, the Indians as plaintiffs brought this action in the superior court of Maricopa county seeking a writ of mandamus compelling the recorder to register them. The complaint alleged in detail that plaintiffs possessed all the qualifications for suffrage as set forth in the constitution and laws of the state of Arizona, and asserted that if they were denied the right to register and vote they would be deprived of the franchises, immunities, rights, and privileges of citizens which are guaranteed to them under the constitution and laws of both the United States and the State of Arizona.

The defendant recorder moved to dismiss the complaint for the reason that it failed to state a claim upon which relief could be granted under the authority of the decision of this court in the case of Porter v. Hall, 1928, 34 Ariz. 308, 271 P. 411, 412. This motion was granted and subsequently judgment was entered for the defendant as the plaintiffs elected to stand upon their complaint. An appeal was taken and the matter is now before us for review. Helpful briefs have been filed in behalf of the United States of America, the National Congress of American Indians, and the American Civil Liberties Union, who, by permission, appear as amicus curiae.

We shall refer to the parties as they were designated in the lower court, the Indians as plaintiffs and the recorder as defendant.

The allegations of the complaint in the instant case vary somewhat from the agreed statement of facts upon which the Porter case was tried, e. g., it is alleged that plaintiff Harrison was inducted into the military service in World War II and thereafter received an honorable discharge. Furthermore, in paragraph V appears this allegation: "That the plaintiffs and each of them own property, some of which is located at various times outside the boundaries of the said Fort McDowell Indian Reservation in the State of Arizona. That the plaintiffs and each of them assessed for taxes by and pay taxes to the State of Arizona. That the plaintiffs and each of them are subject to the civil and criminal laws of the State of Arizona and of the United States of America, and are permitted to leave said Fort McDowell Indian Reservation at any time that either or both of said plaintiffs so desire."

However, it is our view that neither the payment of taxes nor the rendering of military service by plaintiff is in any way determinative of his right to vote for the reason that the law (our constitution and statutes) does not prescribe such as necessary qualifications of an elector. But basically the same question is presented here as was presented in the Porter case, and that is, are plaintiffs persons "under guardianship" within the meaning of section 2, article 7, of the Arizona Constitution and section 55-201, A.C.A.1939, which denies the franchise to persons who are convicted felons or are "under guardianship, non compos mentis, or insane". If this primary question be answered in the affirmative, as it was in the Porter case, then we must determine whether such denial of the franchise to plaintiffs violates the Fourteenth and Fifteenth Amendments to the Constitution of the United States.

The opinion in the last-mentioned case laid at rest the contention there made that members of Indian tribes residing on Indian reservations were not "residents of the state of Arizona", as it was held that Indian reservations in Arizona are within political and governmental boundaries of the state, and limitations on state's jurisdiction in Enabling Act apply only to Indian lands considered as property, but do not withdraw territorial area from sovereignty of state and control of its laws.

While the county attorney of Maricopa county, as counsel for defendant, does not expressly invoke the doctrine of stare decisis, he does earnestly urge that the majority opinion in the Porter case is sound and should be adhered to. His argument follows closely the reasoning adopted by the distinguished author of the majority opinion, and we submit that no better case can be made for those subscribing to the view that tribal Indians are not legally entitled to vote in Arizona than was made by Justice Lockwood. We have, however, no hesitancy in re-examining and reconsidering the correctness of the legal principles involved because the civil liberties of our oldest and largest minority group (11.5% of State's population) of whom 24,317 are over twenty-one years of age (1940 U. S. census) are involved, and it has ever been one of the great responsibilities of supreme courts to protect the civil rights of the American people, of whatever race or nationality, against encroachment.

The recent "Report Of The President's Committee On Civil Rights," U. S. Government Printing Office, Washington, 1947, brands the decision in the Porter case as being discriminatory and recommends that suffrage be granted by the states of Arizona and New Mexico to their Indian citizens. Ibid., page 161. We quote from that report: "In past years, American Indians have also been denied the right to vote and other political rights in a number of states. Most of these restrictions have been abandoned, but in two states, New Mexico and Arizona, Indians continue to be disfranchised. The constitution of New Mexico withholds suffrage from Indians not taxed. In Arizona the state constitution has been interpreted to deny the vote to Indians as being persons under guardianship. Protest against these legal bans on Indian suffrage in the Southwest have gained force with the return of Indian veterans to those states." Ibid., p. 40.

In a democracy suffrage is the most basic civil right, since its exercise is the chief means whereby other rights may be safeguarded. To deny the right to vote, where one is legally entitled to do so, is to do violence to the principles of freedom and equality.

It would be idle to contend that tribal Indians do not still occupy a peculiar and unique relationship to the federal government. They are, except for a few civilized tribes, still regarded and treated by the United States as requiring special consideration and protection. For nearly a century they were treated as separate "nations" and the legal rights of the members were fixed by treaty. Many of these treaties are still in force and of recognized validity. However, Congress stopped making such treaties in the year 1871, but since then more than four thousand distinct statutory enactments have been passed by the Congress comprising what is commonly referred to as "Indian Law". Many of the Federal enactments arise from the express grant to Congress found in article 1, section 8, cl. 3 of the Constitution of the United States; "to regulate Commerce * * * with the Indian Tribes;". Generally speaking tribal Indians are not subject to State law. The exemption is particularly true in the fields of criminal law and taxation.

In passing it might not be amiss, to make this observation on the taxation situation as applied to Indians in Arizona. Under section 20 of the Enabling Act, and article 20(5), constitution of Arizona (the latter being an ordinance irrevocable without the consent of the United States and the people of Arizona) it was solemnly agreed: "* * * and no taxes shall be imposed by this state on any lands or other property within an Indian reservation owned or held by any Indian; but nothing herein shall preclude the state from taxing as other lands and other property are taxed, any lands and other property outside of an Indian reservation owned or held by any Indian, save and except such lands as have been granted or acquired as aforesaid, or as may be granted or confirmed to any Indian or Indians under any act of congress."

The Ninth Circuit Court of Appeals in the case of United States v. Porter, 22 F.2d 365, has upheld the right of the state of Arizona to tax tribal Indians for property owned by them which is located off the reservation, but the state's right to tax their property on the reservation has, for the present, been expressly prohibited by the above quoted ordinance. Nor is the state's sales tax now being collected from Indians for purchases made by them on the reservation.

The Congress on June 2, 1924, 43 Stat. 253, declared all Indians to be citizens of the United States, 8 U.S.C.A. § 3, and then, just prior to World War II, on October 14, 1940 enacted the "Nationality...