Montoya v. Bolack

• Decision Date: 05 June 1962
• Docket Number: No. 7103,7103
• Parties: Joe A. MONTOYA, Contestant-Appellant. v. Tom BOLACK, Contestee-Appellee.
• Court: New Mexico Supreme Court

Page 387

372 P.2d 387

70 N.M. 196

Joe A. MONTOYA, Contestant-Appellant. v. Tom BOLACK, Contestee-Appellee.

No. 7103.

Supreme Court of New Mexico.

June 5, 1962.

Concurring Opinion June 14, 1962.

Bigbee & Stephenson, Santiago E. Campos, Santa Fe, for appellant.

A. T. Hannett, Albuquerque, M. W. Hamilton, Robert E. Fox, Santa Fe, for appellee.

Willard F. Kitts, William C. Schaab, William A. Brophy, Albuquerque, for New Mexico Civil Liberties Union, amici curiae.

Arthur Lazarus, Jr., Strasser, Spiegelberg, Kampelman & McLaughlin, Daniel M. Singer, Joel R. Fiedelman, Washington, D. C., for Assn. on American Indian Affairs, Inc., amici curiae.

Norman M. Littell, Washington, D. C., Joseph F. McPherson, Walter F. Wolf, Jr., Window Rock, Ariz., for Navajo Tribe, amici curiae.

CARMODY, Justice.

We are called upon to determine if Navajo Indians residing on the reservation are eligible to vote. Part of the reservation is geographically within the exterior boundaries of the state of New Mexico, and the problem is whether such lands are politically and governmentally a part of the state so as to meet the constitutional requirement of 'residence' for voting purposes.

The appellant was a candidate for the office of lieutenant governor in the 1960 general election. He contested on several grounds the result, which certified appellee as the winner, but the only basis pertinent on appeal is the challenge to the legality of some 2202 votes cast by persons (presumably Indians) residing and voting on the Navajo Reservation in San Juan and McKinley Counties, New Mexico.

The reason for the attack is made plain when it appears that appellee received a state-wide majority of 279 votes out of some 300,000, but if the contested votes were declared to be invalid, appellant would thereby gain 342 votes, making him the winner by 63 votes.

The trial court dismissed the notice of contest, on the ground that it failed to state a claim for relief, in effect holding that votes cast by Indians living on the reservation, at polling places on the reservation, were properly counted and canvassed.

Article VII, Sec. 1, of the New Mexico Constitution, insofar as applicable, reads as follows:

'Every male citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons, persons convicted of a felonious or infamous crime unless restored to political rights, and Indians not taxed, shall be qualified to vote at all elections for public officers. * * *'

Section 3-1-1, N.M.S.A., 1953 Comp., in addition to certain material not pertinent in this case, appears as follows:

'As used in this act, unless the context requires otherwise: The words 'qualified elector,' 'elector' or 'voter' means any citizen of the United States who at the date of the election will be over the age of twenty-one (21) years and will have resided in the state twelve (12) months, in the county ninety (90) days and in the precinct in which he offers to vote thirty (30) days, next preceding the election, except idiots, insane persons, persons convicted of a felonious or infamous crime unless restored to political rights.

'Residence within the meaning of the above paragraph shall be residence upon land privately owned, or owned by the state of New Mexico, any county or municipalities thereof; or upon lands originally belonging to the United States of America or ceded to the United States of America by the state of New Mexico, any county thereof, or any municipal corporation or private individual, by purchase, treaty or otherwise.

* * *

* * *

'A person's residence shall be that place wherein he legally resides and has his domicile and from which when temporarily absent he intends to return.'

However, the constitution and statute must be considered in the light of the treaty between the United States and the Navajo Indians, which was entered into in 1868 and appears at 15 Stat. 667, and contains the following provision:

'Article II. The United States agrees that the following district of country, to wit: bounded on the north by the 37th degree of north latitude, south by an east and west line passing through the site of old Fort Defiance, in Canon Bonito, east by the parallel of longitude which, if prolonged south, would pass through old Fort Lyon, or the Ojo-de-oso, Bear Spring, and west by a parallel of longitude about 109~30' west of Greenwich, provided it embraces the outlet of the Canon-de-Chilly, which canon is to be all included in this reservation, shall be, and the same is hereby, set apart for the use and occupation of the Navajo tribe of Indians, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit among them; and the United States agrees that no persons except those herein so authorized to do, and, except such officers, soldiers, agents, and employes of the government, or of the Indians, as may be authorized to enter upon Indian reservations in discharge of duties imposed by law, or the orders of the President, shall ever be permitted to pass over, settle upon, or reside in, the territory described in this article.' (Emphasis added.)

In addition, the Constitution of New Mexico, art. XXI, Sec. 2 (as well as Sec. 2, paragraph Second of the Enabling Act for New Mexico (Act of June 20, 1910, ch. 310, 36 Stat. 557), which reads almost identically to the constitutional provision), is as follows:

'The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof, and to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through the United States, or any prior sovereignty; and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States; and that the lands and other property belonging to citizens of the United States residing without this state shall never be taxed at a higher rate than the lands and other property belonging to residents thereof; that no taxes shall be imposed by this state upon lands or property therein belonging to or which may hereafter be acquired by the United States or reserved for its use; but nothing herein shall preclude this state from taxing as other lands and 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; but all such lands shall be exempt from taxation by this state so long and to such extent as the Congress of the United States has prescribed or may hereafter prescribe.'

There are several New Mexico cases which touch upon the immediate problem, but actually in none of them has this court ever ruled upon the residence of treaty Indians insofar as it concerns voting.

In Tenorio v. Tenorio, 1940, 44 N.M. 89, 98 P.2d 838, we held that residence within a pueblo reservation was a sufficient residence to give the court jurisdiction in granting a divorce between two pueblo Indians. Considerable doubt, however, has been cast upon this holding, in at least two very recent cases decided by us, namely, Your Food Stores, Inc. (NSL) v. Village of Espanola, 1961, 68 N.M. 327, 361 P.2d 950, and Valdez v. Johnson, 1961, 68 N.M. 476, 362 P.2d 1004, both of which will be discussed more fully hereinafter, together with State v. Begay, 1958, 63 N.M. 409, 320 P.2d 1017.

In 1948, the problem of Indian residence and right to vote was brought to this court in Tapia v. Lucero, 1948, 52 N.M. 200, 195 P.2d 621, but we remanded the case to the trial court for additional findings and, unfortunately, it was never thereafter decided on its merits.

During the above year, a case was filed in the United States District Court for the District of New Mexico, entitled Trujillo v. Garley, being No. 1350 on the docket of that court. Unfortunately, this case is not a reported case, and we have available only the transcript of the remarks made by the presiding judge of a three-judge district court. The issue in the Trujillo case, however, was apparently restricted and the final decision based upon the 'Indians not taxed' provision appearing in art. VII, Sec. 1, of the New Mexico Constitution. This case, incidentally, involved pueblo Indians as distinguished from treaty Indians, but the court ruled that the 'Indians not taxed' provision was in violation of the Fourteenth Amendment of the Constitution of the United States and that the same was therefore invalid. As a result, the court directed that the plaintiff, an Indian, should be allowed to register to vote and the county clerk was enjoined from refusing such registration. This case was not appealed and has remained unquestioned in the subsequent years. There is no claim in the instant case as to this proposition, and we doubt if there would be any efficacy in our re-examining the problem. It is of interest to note in this respect that the New Mexico legislature, in 1953, some five years after the Trujillo case, amended Sec. 3-1-1, N.M.S.A., 1953 Comp., which had formerly contained the same words as the constitutional provision, and eliminated the three words 'Indians not taxed.'

We should also mention in passing that there was another United States District Court case filed in 1948, entitled Bowman v. Lopez, No. 1391 on the docket of the United States District Court for the District of New Mexico. This case also, unfortunately, is not reported,...