Reply Brief — Val/Del, Inc. v. Superior Court of Arizona

(4)

No. 85-348

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1985

VAL/DEL, IME.,

A Delaware corporation, Petitioner

Ve

SUPERIOR COURT OF ARIZONA,

COUNTY OF PIMA, et al.

(Pascua Yaqui Tribe, Real Party

in Interest), Respondents

ON WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF ARIZONA, DIVISION TWO

REPLY TO RESPONSE TO

PETITION FOR CERTIORARI

JOHN F. MOLLOY

Post Office Box 2268

Tucson, Arizona 85702-2268

(602) 622-3531

Attorney for Petitioner

| BEST AVAILABLE COPY

TABLE OF CITATIONS

Atkinson v. Haldane,

569 P.2d 151 (Alaska 1977)......

Kengla v. Stewart,

313 P.2d 424,

Se es Se POPE Pi cc cc ewseaces

Pawnee Indian Tribe v. U.S.,

109 F. Supp. 860

EM. P:R | eee

State of Arizona v. State of

California,

Sa &. Ges. Baer

263 ¥.3. 423,

rr; a Pe et Se eee ee

State v. Maguire,

124 Ariz. 64,

601 P.2d 1348 (App. 1978).......

Petitioner Val/Del, Inc., will confine

itself to matters first raised in the Re-

sponse. See Rule 22.5, Supreme Court

Rules. In Arizona courts, the Tribe has

relied exclusively upon Congressional rec-

ognition. Now, for the first time in these

proceedings, the Tribe attempts to show

that there are factual matters which would

support a recognition by Congress of its

tribal status.

The assertion is made at page 5 of the

Response that at the trial level the Tribe

"pointed out, among other things, that the

use of the Spicer publication was question-

able, and could certainly not be used to

overrule Congressional mandate." This

assertion is incorrect; the first objection

of any kind taken to the trial court's

judicial notice of the Spicer publications

was at the Court of Appeals level. But

regardless, the Arizona courts did take

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judicial notice of Yaqui history, and

rightfully so.

The assertion is made "there is no

indication that the Court [trial court]

gave any credence to Val/Del's exhibits of

"historical fact.'" Response at 5. This

is incorrect. Judge Lillian Fisher, trial

judge, in granting the Motion to Dismiss,

stated:

"Although such recognition [that

of a sovereign tribe] may grant

to the Pascua Yaqui Indian, who

migrated to this country from

Mexico, certain rights that are

not available to other persons

who migrated to the United States

from Mexico, the Pascua Yaqui

Indians are not precluded from

seeking and obtaining status as a

federally recognized Indian

tribe." Minute Entry of Aug-

ust 7, 1984.

The only possible source for the in-

formation regarding migration was judicial

notice -- presumably of Spicer I.

The expression of objection to the

Spicer publications at the Court of Appeals

level was perfunctory and consisted only of

the following sentence, included within a

ten-page brief:

"Petitioner offers in rebuttal

two books in their entirety (Pe-

titioner's Exhibits J and Kk),

which books were not in evidence

before the lwoer [sic] court and

which are not properly attached

as part of this Special Action.

Neither book has tne force of

Federal law." Memorandum of

Points and Authorities in Support

of Pasqua Yaqui Tribe's Response

to Petition for Special Action

at 5.

There is no explanation of what the Tribe

considers proper attachment. To this memo-

randum resisting special action, the Tribe

attached four exhibits, consisting of thir-

ty-nine pages, none of which in any way

question the authority of Spicer nor the

historical facts pertaining to the Yaquis

in Arizona. The migration facts, noticed

by Judge Fisher, were summarized for the

Court of Appeals, similarly to the manner

in which they have been summarized for this

Court. In the briefs filed in the state

courts, the Tribe has never attempted to

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deny its Mexican origins or to assert that

it has exercised any degree of self-govern-

ment in this country.

Arizona has adopted its Rule 201 from

the Federal Rules of Evidence (Rule 201)

pertaining to judicial notice.

The case cited by the Tribe, State v.

Maguire, 124 Ariz. 64, 601 P.2d 1348 (App.

1978), correctly states the rule that

“an appellate court can _ take

judicial notice of any matter of

which the trial court may take

judicial notice, even if the

trial court was never asked to do

so." 124 Ariz. at 65, 601 P.2d

at 1349.

Here, both the trial and appellate courts

were asked to take judicial notice of the

history of the Yaquis. The trial court was

pointed to Spicer I, the 1940 publication,

and the appellate court to both this and

Spicer II, the 1980 publication. Both

courts accepted the Spicer works as con-

taining materials whose accuracy cannot

reasonably be questioned, and indeed, there

‘— -

is no indication now that the Tribe ques-

tions the accuracy of Spicer's work.

The Court of Appeals' decision recog-

nized that history establishes that these

Indians have never exercised any political

autonomy in the United States: |

"Petitioner presented to the

trial court two books by Dr.

Edward H. Spicer as authority for

the proposition that the Pascua

Yaqui Tribe would not qualify for

federal recognition under the

Code of Federal Regulations re-

quirements. Spicer was an ac-

knowledged authority on the

history of the Pascua Yaquis, and

his books establish that the

Yaquis do not have single roots

but are a historically mixed-

blood people who lived in western

Mexico on the Gulf of California

from approximately the 1600's to

the present. Beginning in the

late 1880's, small groups came

from time to time across’ the

international border to Arizona

and California. Therefore, Peti-

tioner argues, since the Pascua

Yaquis are not indigenous to this

area, but rather are immigrants

from Mexico, and because Dr.

Spicer's books show that’ the

tribe has not attempted to revive

any system of government their

predecessors may have established

in Mexico, they could not qualify

for federal recognition under 25

C.F.R. §63.7. We cannot fault

this conclusion and, in essence,

neither does the tribe." Court

of Appeals Decision at 5-6.

The Court of Appeals went on to cite

Atkinson v. Haldane, 569 P.2d 151 (Ala.

1977), and to hold that the question of

whether this Tribe is entitled to sovereign

immunity is a “nonjusticiable political

question". Court of Appeals Decision at 6-7.

The Arizona courts were not remiss in

taking judicial notice of the Yaqui histo-

ry. See State of Arizona v. State of Cali-

fornia, 51S. Ct. 522 at 525, 283 U.S. 423,

73 L. Ed. 1154 (1931); Kengla v. Stewart,

313 P.2d 424, 82 Ariz. 365 (1975); and

Pawnee Indian Tribe v. U.S., 109 F. Supp.

860 at 870 (U.S. Ct. Cl. 1953).

Though the Tribe has carefully select-

ed quotations from Spicer for its Response,

there is nothing called to this Court's

attention which indicates that these Indi-

ans have ever exercised any degree of

political independence in this country.

A reading of all of the excerpts quot-

ed establishes only that the Tribe had a

unique religion, culture and language,

which are different from those of the in-

digenous Indians of Arizona.

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ial

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It has never been questioned by the

Petitioner that the Yaqui Indians consti-

tuted a "tribe" in Mexico, and, as a matter

of fact, the historical recitation pertain-

ing to these Indians which has been submit-

ted to this Court points out that the Yaqui

towns in Sonora, contrasted with those in

this country, had self-government (Petition

at 14-15). The Yaqui Tribe still has a

form of self-government in Mexico, in its

native territory, on the Yaqui River. As

part of the record below, the history of

these people has been summarized in this

language:

"The Yaquis were restored to

semi-autonomy in Mexico in 1937,

when President Cardenas, by pres-

idential decree, set aside to the

‘Yaqui Tribe' about a third of

the lands the Yaquis had tradi-

tionally claimed, being’ those

mostly on the north side of the

[Yaqui] river (id., [Spicer II],

265). A ‘peculiar democracy' was

established in the ‘Yaqui Zone'

under a unique system called the

"Yaqui Indigenous Community'

(id., 277-83). About 20,000

Yaquis reconcentrated in this

zone (id., 274)." Petition for

Review at 5.

Spicer, of course, was not contradicting

his own history when he made the statement

italicized at pages 14-15 of the Response:

"One conclusion of my long and

extensive study of Yaqui people

is that they form a distinct

Indian group or Tribe."

This statement, of course, has nothing

to do with the issue here, and this is the

best that the Respondent can do. What is

apparent and admitted is that the Yaquis

are a Mexican Indian Tribe of which some

members have migrated to this country.

These people are culturally different from

other U.S. citizens. The same can be said

of many Jewish, Polish, Italian, Chinese

and Irish communities in various of our

larger cities, such as New York, Chicago,

Detroit, Los Angeles and San Francisco.

But speaking a different language and hav-

ing a cultural uniqueness does not create

an independent government, and this is what

is happening when a recognition of sover-

eignty to an Indian tribe is granted.

RESPECTFULLY SUBMITTED this day

of October,

F. MOLLOY , ae

Office Box 22

Tucgon, Arizona 85702-2268

Comnsel for Petitioner