Tracy v. Superior Court of Maricopa County

Decision Date23 April 1991
Docket NumberNo. CV-90-0407-SA,CV-90-0407-SA
Citation810 P.2d 1030,168 Ariz. 23
PartiesK. Tom TRACY, Petitioner, v. The SUPERIOR COURT OF MARICOPA COUNTY and the Honorable Gregory Martin, a judge thereof, Respondents, and The NAVAJO NATION, aka the Navajo Tribe of Indians, Real Party in Interest.
CourtArizona Supreme Court

FELDMAN, Vice Chief Justice.

K. Tom Tracy (Tracy) and others who were joined as intervenors for purposes of this special action 1 (collectively petitioners) challenged the superior court's jurisdiction to issue orders compelling their attendance as witnesses in a criminal trial before the district court of the Navajo Nation. The court's order issued under Arizona's Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, A.R.S. §§ 13-4091 through 13-4096 (the Uniform Act).

Petitioners assert that the superior court judge erred in finding that the Navajo Nation is an entity recognized by the Uniform Act. Tracy also argues that he faces a risk of "undue hardship" under A.R.S. § 13-4092(B) in that he will be deprived of his constitutional privilege against self-incrimination if required to testify before the Navajo District Court. The other petitioners make similar claims based on their assumptions that the Navajo District Court will not recognize various professional privileges.

We accepted jurisdiction because this matter constitutes an issue of first impression in Arizona and involves the question of comity between our state and the separate, sovereign jurisdiction of the Navajo Nation, which is located in part within the geographical boundaries of Arizona. We have jurisdiction pursuant to article 6, § 5(1) of the Arizona Constitution and Rule 8(b), Ariz.R.P.Spec.Act., 17B A.R.S. After hearing argument, we denied relief, thus refusing to vacate the orders compelling attendance, and stated that this opinion would follow.


This case arises from the Navajo Nation's decision to prosecute its former Chairman, Peter MacDonald, Sr., and his son for crimes resulting from the "Big Boquillas" transaction, an alleged conspiracy between the MacDonalds and several non-Indian businessmen to buy land and then sell it to the Navajo Nation at a profit. The alleged conspiracy caused the tribe to lose several million dollars. After the basis for the charges was revealed during testimony before the Special Investigations Subcommittee of the United States Senate Select Committee on Indian Affairs (the Subcommittee), the Navajo Nation placed Chairman MacDonald on administrative leave and appointed a special prosecutor to investigate and then conduct the criminal proceedings.

Tracy was named during testimony before the Subcommittee as one of those involved in the Big Boquillas transaction. Brief of the Navajo Nation in Special Action Proceeding in the Supreme Court at 2. Aside from these allegations, Tracy does not dispute the fact that he is "a principal in Tracy Oil & Gas Co., Inc., which in February 1987 optioned the ... Big Boquillas Ranch in Northern Arizona for $26,250,000 and then sold the Ranch on July 8, 1987 to the Navajo Nation for $33,400,000." Petition for Special Action at 5.

In October 1989, the special prosecutor filed three multi-count criminal complaints against the MacDonalds in Navajo District Court. One of these complaints concerns the Big Boquillas transaction. The Navajo District Court does not have jurisdiction to prosecute non-members of the Navajo tribe, even for crimes committed in Indian Country, so Tracy is not the subject of any pending or prospective tribal prosecution. See DURO V. REINA, --- U.S. ----, 110 S.CT. 2053, 109 L.ED.2D 6932 (1990) (Indian tribal courts may not prosecute non-members of the tribe); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978) (Indian tribal courts may not prosecute non-Indians).

Anticipating the need for the testimony of several witnesses residing outside the Navajo Nation, the special prosecutor recommended that the Navajo Tribal Council enact the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings (Navajo Uniform Act). The provision, codified at 17 Navajo Trib.Code §§ 1970-1974, was duly enacted in September 1989. 3 Pursuant to the Navajo Uniform Act, Judge Yazzie of the Window Rock District Court of the Navajo Nation issued certificates seeking to compel the attendance of Tracy and other named Maricopa County residents at the Big Boquillas trial.

On August 27, 1990, after holding a hearing on the matter, an Arizona superior court judge signed orders compelling Tracy and others to appear as witnesses in the Big Boquillas trial. The judge found that the Navajo Nation is a "state" or "territory" within the meaning of the Uniform Act, that the Navajo Nation had enacted a reciprocal provision of the Uniform Act, and that the courts of the Navajo Nation are "courts of record" within the meaning of the Uniform Act. The Arizona court held, therefore, that it had jurisdiction to order an Arizona resident to testify before the Navajo District Court in criminal proceedings brought against a member of the Navajo tribe.

Tracy then sought special action relief in the court of appeals. The court declined to accept jurisdiction, a majority of the panel finding that the Navajo Nation may be considered a state or territory whose courts are covered by the Uniform Act:

[W]hile the Navajo nation might not have been intended to be included within those entities which would be recognized under the Uniform Act when originally adopted, the underlying rationale of the Uniform Act was to provide mutuality of access between the various jurisdictions of this country to facilitate the prosecution of criminal cases. In this regard, a majority of this court considers the Navajo Tribal Courts to now provide those safeguards and procedures recognized by courts of other states, including the constitutional protection against self-incrimination and the statutory privilege associated with attorney/accountant/client communication.

Order, October 16, 1990.

Tracy then filed a special action in this court, seeking to quash the superior court's orders. He presented the following issues for our consideration:

1. Whether the moving papers that the Navajo Nation presented to the superior court judge were defective.

2. Whether Tracy can be considered a "necessary and material witness," for purposes of the Uniform Act, in light of his intent to refuse to testify before the Navajo District Court.

3. Whether the superior court judge erred in ruling that the Navajo Nation is a state or territory within the meaning of the Uniform Act.

4. Whether Tracy and the other petitioners face undue hardship under A.R.S. § 13-4092(B) in that they will claim privileges that will not be recognized by the Navajo District Court and hence will risk being jailed unless they "waive those rights."

We find no basis to question the superior court judge's finding that the moving papers were adequately presented. We address the remaining three issues.

A. Materiality of Tracy's Testimony

Tracy argues that he cannot be a necessary and material witness given his intention to invoke the privilege against self-incrimination. The superior court judge disagreed. He correctly held Tracy's testimony necessary and material. A witness cannot circumvent the Uniform Act by claiming his intent to assert the privilege before the questions are actually posed in the proceeding to which the privilege will pertain. See State v. Schreuder, 712 P.2d 264, 274 (Utah 1985) (witness's claimed intention to invoke the fifth amendment privilege in the requesting court is not a ground for finding the testimony is not material). The privilege is a matter to be ruled on by the court conducting the trial. In re Pitman, 26 Misc.2d 332, 201 N.Y.S.2d 1000, 1002 (N.Y.Gen.Sess.1960) (where New York witness was compelled to appear in New Jersey criminal prosecution, questions about his privilege against self-incrimination would have to be determined in the New Jersey court, not in the New York court issuing the order). See generally Thoresen v. Superior Court, 11 Ariz.App. 62, 66-67, 461 P.2d 706, 710-11 (1969) (fifth amendment privilege does not prevent asking potentially incriminating questions, and it cannot be claimed in advance of questions actually propounded).

The role of the court issuing the subpoena is only to determine that the testimony of the witness, if given, would be material and necessary to the proceedings. See A.R.S. § 13-4092(B) ("If at a hearing the judge determines that the witness is material and necessary, ... he shall issue a summons.... In any such hearing the certificate shall be prima facie evidence of all the facts stated therein."). Accordingly, Tracy is a necessary and material witness despite his stated intention to invoke his privilege against self-incrimination.

B. Is the Navajo Nation Within the Scope of Arizona's Uniform Act?

Arizona's Uniform Act provides that a judge may direct the witness to appear at a criminal proceeding in another state if

a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies ... that there is a criminal prosecution...

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