State v. Zaman (Tahirkhaili)
| Citation | 187 Ariz. 81,927 P.2d 347 |
| Decision Date | 11 March 1996 |
| Docket Number | No. 1,CA-CV,1 |
| Parties | STATE of Arizona, Plaintiff-Appellee, v. Akhtar ZAMAN (TAHIRKHAILI), Defendant-Appellant. 94-0259. |
| Court | Court of Appeals of Arizona |
Akhtar Zaman challenges the subject-matter jurisdiction of the Apache County Superior Court over a paternity suit involving a non-Native-American father and a Native-American mother, both of whom resided within the Navajo Nation when all pertinent events occurred. He also argues that service of process, which was effected on him within the Nation by an Apache County deputy sheriff, acting without authority from the Nation, was invalid.
The superior court ruled that it had subject-matter jurisdiction and that the service was proper. We reverse and hold that the superior court did not have subject-matter jurisdiction. So holding, we do not address Zaman's other argument.
Barbara Wilson is an enrolled member of the Navajo Nation, living and working, at all relevant times, in Window Rock, Arizona, which lies within the Nation's boundaries. Zaman is not a Native American; he too lived in Window Rock during all times pertinent to this case.
Beginning in 1982, Zaman and Wilson began a romantic relationship which continued until some time in 1987. For the most part, the relationship was carried on in Window Rock, although they sometimes met in Gallup, New Mexico (which is not within the Nation), and once they met in Albuquerque. However, Zaman and Wilson never were together in Arizona unless it was within the boundaries of the Nation. In January 1987, in Window Rock, they conceived a child, Sahira Zaman, who was born on October 18, 1987, in Gallup. Following her birth, Sahira lived with Wilson in Window Rock. Sahira is eligible to be enrolled as a member of the Navajo Nation.
On September 15, 1988, the state filed this action. It sought to have Zaman adjudged as Sahira's father, to order him to pay child support and certain medical expenses, to grant Wilson custody and to grant Zaman reasonable visitation. 1
A summons and complaint were served on Zaman in Window Rock by an Apache County deputy sheriff. Zaman responded with a motion to dismiss, asserting that the superior court lacked subject-matter jurisdiction and that the service of process was improper. The court denied the motion without explanation. Zaman then filed a motion for reconsideration, which the court denied.
Almost 2.5 years later, Zaman filed a motion for summary judgment, again raising the issues of subject-matter jurisdiction and service. Again, the court denied the motion and the matter was tried on July 28, 1993.
On January 28, 1994, the superior court determined Zaman to be Sahira's biological father and that he was $29,792 in arrears in child support, set monthly support at $600, gave Wilson custody and established visitation guidelines. 2 Zaman appealed.
State courts are precluded from acting on matters involving Native Americans in two situations: (1) when "state action [would] infring[e] on the right of reservation Indians to make their own laws and be ruled by them" and (2) when the federal government has preempted state authority. Smith Plumbing Co., Inc. v. Aetna Casualty & Sur. Co., 149 Ariz. 524, 529, 720 P.2d 499, 504 (), cert denied, 479 U.S. 987, 107 S.Ct. 578, 93 L.Ed.2d 581 (1986). Zaman argues both points: that this action infringes on the right of the Navajo Nation to make and live by its own laws, and that federal statutory law precludes the state court from taking jurisdiction in this case. Agreeing with the first contention, we do not address Zaman's statutory argument.
"The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's History." Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 991, 89 L.Ed. 1367 (1945); see generally Felix Cohen, HANDBOOK OF FEDERAL INDIAN LAW (1982). Indian reservations traditionally have been considered "distinct political communities, having territorial boundaries, within which their authority is exclusive ... which is not only acknowledged, but guarantied by the United States." Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557, 8 L.Ed. 483 (1832). See Begay v. Roberts, 167 Ariz. 375, 378, 807 P.2d 1111, 1114 (App.1990). Under the Indian sovereignty doctrine, only the federal government was empowered with jurisdiction over dealings with Indian nations, even though the Indian lands fell within the geographical boundaries of individual states. Id. The laws of the surrounding states, therefore, had no force on the reservations, and citizens of these states were not authorized to enter the reservations or assert authority over them without the assent of the Native Americans themselves and in accordance with the treaties and acts of Congress. Id.
They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.
United States v. Kagama, 118 U.S. 375, 381-82, 6 S.Ct. 1109, 1112-13, 30 L.Ed. 228 (1886) (emphasis added).
In 1868, the United States signed a treaty with the Navajo Nation which set aside land in Arizona, New Mexico and Utah for the "exclusive use and occupation of" the Navajos in return for a promise to maintain peace. 15 Stat. 667 (1868). The treaty guaranteed that only authorized agents of the United States government would be permitted within the reserved land. By limiting intrusion on the reservation in this manner, the treaty implicitly provided that "the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed." Williams, 358 U.S. at 221-22, 79 S.Ct. at 271.
Congress has acted consistently with the principle that the states lack jurisdiction over Native Americans living on reserved lands absent an Act of Congress permitting such jurisdiction. When Arizona became a state, 36 Stat. 557, 568-79 (1910), its entry into the Union was expressly conditioned upon its adoption of a constitutional provision disclaiming right and title to reservation lands. See Ariz. Const. art. 20, sec. 4. However, Congress later provided the states with a means to assume jurisdiction over the reservations. Public Law 280, enacted in 1953, delegated jurisdiction to several states and permitted other states, such as Arizona, to disregard the constitutional language mandated by their enabling acts and assert by legislation jurisdiction over reservation lands falling within the states' borders. 3 Fifteen years later, Congress passed the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq., which in part modified Public Law 280 by requiring states wishing to assume jurisdiction over Indian lands to first secure the affected tribes' consent. 25 U.S.C. §§ 1321,1322. Desirous states must also amend their constitutions and/or statutes to reflect their assumption of jurisdiction. 25 U.S.C. § 1324. While several states did assume complete jurisdiction, Arizona, generally, did not. See Tohono O'odham Nation v. Schwartz, 837 F.Supp. 1024, 1029 (D.Ariz.1993); Nenna v. Moreno, 132 Ariz. 565, 566, 647 P.2d 1163, 1164 (App.1982). 4 Absent such implementation, the states have no jurisdiction over Native Americans on Indian reservations. E.g., McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 177-79, 93 S.Ct. 1257, 1265-66, 36 L.Ed.2d 129 (1973); Kennerly v. District Court of the Ninth Judicial District of Montana, 400 U.S. 423, 427-30, 91 S.Ct. 480, 482-84, 27 L.Ed.2d 507 (1971).
This court has said:
The Navajo Treaty of 1868 first set forth the concept of the Navajo Tribe as a sovereign entity and that, within the reservation, it possesses the right of self-government. See Joe v. Marcum, 621 F.2d 358, 361 (10th Cir.1980). The Navajo Tribe has accordingly created a system of self-government, including a judicial branch consisting of trial and appellate courts, and has enacted the Navajo Tribal Code. Id. The Navajo Treaty has been consistently interpreted to preclude state court jurisdiction over Navajos living on the reservation. McClanahan v. State Tax Comm'n, 411 U.S. at 175, 93 S.Ct. at 1264.
Begay v. Roberts, 167 Ariz. 375, 379, 807 P.2d 1111, 1115 (App.1990). Additionally, "tribal courts have inherent power to adjudicate civil disputes affecting the interests of Indians and non-Indians which are based upon events occurring on the reservation." Smith Plumbing Co., 149 Ariz. at 529, 720 P.2d at 504 (quoting A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1415-16 (9th Cir.), cert. denied, 476 U.S. 1117, 106 S.Ct. 2008, 90 L.Ed.2d 659 (1986)). Thus, we must determine whether the state's attempt to establish Zaman's paternity of Sahira and to obtain back child support infringes on the Navajo Nation's right to make and live by its own laws. We conclude that it does.
In Williams, the Supreme Court held that Arizona courts lacked jurisdiction over a contract claim by a non-Native American against a Navajo couple when the cause of action arose within the Navajo Nation. The plaintiff ran a general...
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State v. Zaman
...946 P.2d 459 ... 190 Ariz. 208, 254 Ariz. Adv. Rep. 8 ... STATE of Arizona, Plaintiff-Appellee ... Akhtar ZAMAN (Tahirkhaili) Defendant-Appellant ... No. CV-96-0328-PR ... Supreme Court of Arizona, ... Oct. 9, 1997 ... Stephen G. Udall, Apache County Atty. by Karl C. Eppich, Deputy County Atty., St. Johns, for State ... Trebon & Fine P.C. by John J. Trebon, Flagstaff, for Akhtar Zaman ... ...