Porter v. Hall

• Decision Date: 02 November 1928
• Docket Number: Civil 2793
• Citation: 271 P. 411,34 Ariz. 308
• Parties: PETER H. PORTER and RUDOLPH JOHNSON Plaintiffs, v. MATTIE M. HALL, Individually and as County Recorder of the County of Pinal, State of Arizona, Defendant
• Court: Arizona Supreme Court

271 P. 411

34 Ariz. 308

PETER H. PORTER and RUDOLPH JOHNSON Plaintiffs, v. MATTIE M. HALL, Individually and as County Recorder of the County of Pinal, State of Arizona, Defendant

Civil No. 2793

Supreme Court of Arizona

November 2, 1928

Original proceeding for Writ of Mandamus. Alternative writ quashed and petition dismissed.

Mr Edward A. Smith, Special Assistant to the Attorney General of the United States, Mr. John B. Wright, United States District Attorney, and Messrs. Kibbey, Bennett, Gust, Smith & Lyman for Plaintiffs.

Mr John W. Murphy, Attorney General of Arizona, Mr. Frank J. Duffy, Assistant Attorney General, Messrs. Cunningham & Carson, and Mr. E. W. McFarland, County Attorney, for Defendant.

OPINION

LOCKWOOD, J.

Plaintiffs herein filed an original petition in this court for a writ of mandamus, directing the county recorder of Pinal county to enter their names on the great register of that county. The petition alleges that they possess all the qualifications, reciting them, of electors as set forth in the Constitution and statutes of Arizona; that they have made the statutory affidavits of registration, but that defendant refuses to enter their names on the proper general and precinct registers of Pinal county.

Defendant answered, admitting her refusal to register the petitioners, but alleging:

"That the plaintiffs . . . are members of the Pima Tribe of Indians, . . . residents of the Gila River Indian Reservation and have never had . . . any residence other than upon . . . the reservation, and have no property except on said reservation, and that the plaintiffs . . . were . . . and are now subject to all the rules and regulations and laws of the United States enacted for the control and regulation of Indian reservations and Indian tribes. . . . That said . . . reservation, the plaintiffs herein, and their property are . . . exclusively subject to and under the jurisdiction of the laws and courts of the United States and the tribal customs of said Pima Tribe, and are not subject to the laws or within the jurisdiction of the state of Arizona. That said . . . reservation while within the geographical boundaries of . . . Arizona is not subject to the laws of the state of Arizona, and is, therefore, not a part of the state of Arizona, either politically or governmentally, . . . and that, therefore, plaintiffs are not residents of the state of Arizona within the meaning of . . . the Constitution of the state of Arizona. . . . That said Pima Tribe and plaintiffs herein, under the laws, rules and regulations of the United States government, are not sui juris, and that therefore said Pima Tribe and plaintiffs . . . are under guardianship within the meaning of . . . the Constitution of the state of Arizona."

Plaintiffs replied, admitting their race and residence as alleged in the answer, and that they were under the control of the laws and rules of the United States governing Indian reservations, but denying that they were subject to any Indian tribal customs, or that the reservation was not subject to the laws of Arizona, and alleging that the United States exercises no jurisdiction or control over them or their property, except over certain property held in trust for them. The case was submitted on the pleadings, and a stipulation of facts, the latter being set forth in full as follows:

"It is hereby stipulated by and between plaintiffs and defendant, by their respective attorneys, as follows:

"That the plaintiffs, Peter H. Porter and Rudolph Johnson, are Indians of the Pima Indian Tribe. That they were born upon and have ever since been residents of the Gila River Indian Reservation, and have not now and have never had any residence other than upon said Gila River Indian Reservation, and have no property, except upon said reservation. That they are subject to all of the laws, rules and regulations of the federal government enacted by Congress and by the Department of Indian Affairs in force, regulating said Pima Indians residing and living upon said Gila River Indian Reservation.

"That by act of Congress and Executive Orders, what is now known as the Gila River Indian Reservation, which includes the territory upon which plaintiffs reside, was created and designated as an Indian reservation, which said territory, upon which plaintiffs now reside, was wholly set apart for the Pima Indian Tribe and kindred Indians and has ever since been and is now occupied by said Pima Indians and kindred Indians. That there are not now any inhabitants upon said Indian reservation, other than the Pima Indians and kindred Indians, except the government officials, licensed traders, and persons residing on said reservation by permission of the United States government.

"That under and by virtue of the laws of the United States there is now stationed on the said Gila River Indian Reservation an Indian agent, who is the representative of the government of the United States, and whose duties are prescribed by the laws of the United States and the rules and regulations of the Commissioner of Indian Affairs. That there is maintained upon said Indian reservation a Court of Indian Offenses, existing under and by virtue of the rules and regulations of the Indian Office, the judges of which are Indians and which court has exclusive jurisdiction over all Pima Indians and kindred Indians on said Gila River Indian Reservation, including plaintiffs and their property as provided in said rules and regulations, except in so far as jurisdiction thereover has been conferred by the government of the United States upon the District Court of the United States and upon the Indian agent. That said Court of Indian Offenses tries civil matters between the said Indians, matters pertaining to domestic relations and minor crimes. That the laws in force upon said reservation, recognized by the said Court and the said Indians, are the laws and regulations of the United States and Indian tribal customs, rules and regulations recognized by the United States government. That there exists upon said Gila River Indian Reservation a tribal council selected by the said Pima Indian Tribe and kindred Indians, which council consults with and assists officers and agents of the United States relative to the welfare of said Indians and their affairs.

"That the offer of plaintiffs' registration was made upon said Gila River Indian Reservation to a deputy registration officer of Pinal county, duly authorized to take and receive registrations in Pinal county.

"It is further stipulated, that the defendant may introduce as evidence, as soon as available, the rules, regulations and orders of the Department of Indian Affairs, existing under authority of the Department of the Interior, regulating and controlling said Gila River Indian Reservation, the Pima Indians and kindred Indians and property located thereon, which shall include the pamphlet known as 'Regulations of the Indian Office' dated April 1st, 1904, the 293 orders, modifying and adding to said regulations, and the various circulars, governing said reservation, and that the same may be received and admitted without objection on the part of the plaintiffs.

"It is further stipulated and agreed, that both the plaintiffs and defendant reserve the right to introduce evidence, should there be any further question arise, caused by the introduction of said rules and regulations."

We were informed on the oral argument by counsel for both parties that there are many other Indians besides plaintiffs whose right to vote at the coming general election will be determined by this case, and we were urgently requested to render our judgment before November 6th, if possible, so that the election officers of the state might properly perform their duties on that day. For this reason we have advanced the case on the calendar and given it our exclusive and earnest consideration since the filing of the stipulation of facts and briefs.

The facts being undisputed, we have for our consideration two questions: First, is the Gila River Indian Reservation within the political and governmental boundaries of the state of Arizona, so that a residence thereon is residence in the state of Arizona, within the meaning of section 2, article 7, of our Constitution? Second, are persons of Indian race, under the conditions set forth in the stipulation of facts as being those in which plaintiffs find themselves, "under guardianship," within the meaning of the same section?

There are certain constitutional limitations on the right of suffrage in Arizona, which are set forth in section 2, article 7, of our Consitution. This section reads as follows:

"No person shall be entitled to vote at any general election, or for any office that now is, or hereafter may be, elective by the people, or upon any question which may be submitted to a vote of the people, unless such person be a citizen of the United States of the age of twenty-one years or over, and shall have resided in the state one year immediately preceding such election. The word 'citizen' shall include persons of the male and female sex.

"The rights of citizens of the United States to vote and hold office shall not be denied or abridged by the state, or any political division or municipality thereof, on account of sex, and the right to register, to vote and to hold office under any law now in effect, or which may hereafter be enacted, is hereby extended to, and conferred upon males and females alike.

"No person under guardianship, non compos mentis or insane, shall be qualified to vote at any election, nor shall any person convicted of treason or felony, be qualified to vote at any election unless restored to civil rights."

We consider first the question of residence. It is...