Brief for the Respondent in Opposition — Minyard v. Shirley

In the Supreme Court 0

United States

Ocroser Term, 1973

No. 73-860

Tomas Mrixyyarp, Tep Spurtock, Cram Pratt, Jay Resse,

ApacHe County Boarp oF Supervisors and Tom SHIRLEY,

Larry Srrapiinc and Artuur Lez, constituting the mem-

bers thereof and Marcaret Les, in her official capacity as

Clerk of the Apache County Board of Supervisors,

Petitioners,

vs.

Tom Sam ey,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Arizona

Brief of Respondent in Opposition

Pau F. Ecksterx

222 North Central Avenue

Phoenix, Arizona 85004

Attorney for Respondent

Of Counsel:

Jack E. Brown

Georce P. Vuassis

Lawrence A. Ruzow

Browy, Vuiassis & Bars

222 North Central Avenue

Phoenix, Arizona 85004

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

INDEX

Page

Opinion Below 1

Jurisdiction 2

Questions Presented 2

Constitutional Provisions Involved 2

Statutes Involved 3

Statement of the Case 3

Argument 7

I. The Decision Below Is Clearly Correct -............... 8

A. A Reservation Indian Is a Citizen of the

United States Pursuant to 8 U.S.C.

§ 1401(a) (2) and a Resident of the State of

Arizona 8

B. The Equal Protection and Due Process

Clauses of the Fourteenth Amendment Do

Not Require the State of Arizona to Pro-

hibit a Reservation Indian from Holding

the Office of County Supervisor .................. 10

II. There Is No Conflict of Decision 16

Ill. There Is No Important Question of Federal

Law 16

Conclusion 18

Appendix

ee

TABLE OF AUTHORITIES

CasEs

Pages

Baker v. Carr, 369 U.S. 186 (1962) 16

Boyd v. Nebraska, 143 U.S. 135 (1892) 9

Bullock v. Carter, 405 U.S. 134 (1972) 11

Cipriano v. City of Houma, 395 U.S. 701 (1969) -........ 12

City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204

(1970) 12

Comn’r of Int. Rev. v. Walker, 326 F.2d 261 (9th Cir.

1964) 13

Deere v. New York, 22 F.2d 851 (N.D.N.Y. 1927) ...... 9

Elk v. Wilkins, 112 U.S. 94 (1884) 8, 9, 16

Ex Parte Green, 123 F.2d 862 (2nd Cir. 1941) —.......... 9

Halbert v. United States, 283 U.S. 753 (1931) -............ 9

Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456 (1948)

8, 9,15

Kramer v. Union Free School District No. 15, 395 U.S.

621 (1969) 12

Lassiter v. Northampton County Board of Elections,

360 U.S. 45 (1959) 10

Lucas v. The Forty-fourth General Assembly, 377 U.S.

713 (1964) 17

McClanahan v. State Tax Commission of Arizona,

pac = ee , 93 S.Ct. 1257 (1973) 13

McCluskey v. Hunter, 33 Ariz. 513, 266 P. 18 (1928)... 14

Porter v. Hall, 34 Ariz. 408, 271 P. 411 (1928) ............. 9,15

TABLE OF AUTHORITIES ili

Pages

Reynolds v. Sims, 377 U.S. 533 (1964) 17

Scott v. Sandford, 60 U.S. 691 (1856) 9

State Securities, Inc. v. Jimmie and Ruby Anderson,

sae N.M. ........, 506 P.2d 786 (1973) 15

Totus v. United States, 39 F.Supp. 7 (E.D. Wash.

1941) 9

United States v. Nice, 241 U.S. 591 (1916) -................... 9

Unrtep States CoNnsTITUTION

Fifth Amendment 2,5

Fourteenth Amendment 2,5

Nineteenth Amendment 11

Twenty-sixth Amendment 11

Unitep States STATUTES

8 U.S.C. § 1401(a) (2) 2, 8,9

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1257(3) 2

Arizona REVISED STATUTES

A.R.S. § 11-211(A) 7,10

A.RBS. § 16-101 8

A.RBS. § 19-201 14

A.RS. § 38-291(7) 14

OTHER AUTHORITIES

Ariz. Const., art. VII, § 2 11

S.B. 1310, Ariz., 31st Legis., Ist Reg. Sess. ............ Appendix

In the Supreme Court of the

United States

Octoser TERM, 1973

No. 73-860

Tuomas Minyarp, Tep Spur.tock, Cia Piatt, Jay REESE,

ApacHE County Boarp or Supervisors and Tom SuHIRLEy,*®

Larry StrapLine and ArtuHur Leg, constituting the mem-

bers thereof and Marcaret Lez, in her official capacity as

Clerk of the Apache County Board of Supervisors,

Petitioners,

vs.

Tom SHIRLEY,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Arizona

Brief of Respondent in Opposition

OPINION BELOW

The opinion of the Supreme Court of Arizona is not yet

officially reported, but is unofficially reported in 513 P.2d

939. Copies of this opinion, the Order denying rehearing and

*The caption of the Petition in this case is incorrect in that it

designates James A. McDonald as a member of the Apache County

Board of Supervisors. At the time the Petition was filed Tom

Shirley was the Supervisor. With this substitution, the case is left

in the anomalous posture of Tom Shirley suing Tom Shirley and

perhaps explains why the caption was not changed.

ee eee

the judgment of the lower court carrying out the mandate

of the Arizona Supreme Court are appended to the Petition.

JURISDICTION

Petitioners state that this Court has jurisdiction pur-

suant to 28 U.S.C. §1254(1). Inasmuch as this section

applies to petitions for certiorari from Federal courts of

appeal and the Petition is directed at the action of the

Arizona Supreme Court, jurisdiction clearly does not lie

under 28 U.S.C. § 1254(1). Moreover, under Respondent’s

reading of the applicable statutes, Petitioners have not

presented the issues in a manner sufficient to give this

Court jurisdiction under any statute. To be sure, the mere

assertion that a Federal or State statute is unconstitutional

would appear to give this Court jurisdiction pursuant to

28 U.S.C. § 1257(3), but, as will appear more fully below,

the “constitutional” issues raised by Petitioners are more

imagined than real.

QUESTIONS PRESENTED

1. Is a Navajo Indian who resides on the Navajo Indian

Reservation a citizen of the United States within the mean-

ing of 8 U.S.C. § 1401(a) (2)?

2. Do the equal protection and due process clauses of

the Fourteenth Amendment of the Constitution of the

United States require the State of Arizona to prohibit a

Navajo Indian who resides on the Navajo Indian Reserva-

tion from holding the Office of County Supervisor?

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioners claim that this case properly raises issues

under the Fifth and Fourteenth Amendments of the Consti-

tution of the United States. Despite Petitioners’ vigorous

efforts to turn this case into a constitutional cause celebre,

RS TEN Seamer em soempecaramccnceneiet

3

the controversy can be properly resolved without resort

to the Constitution.

STATUTES INVOLVED

The relevant Federal and State statutes are cited in the

Petition at page 4 and set forth in the appendix thereto.

STATEMENT OF THE CASE

In the summer of 1972, Respondent Tom Shirley, a qual-

ified elector of the State of Arizona and an enrolled member

of the Navajo Tribe residing within the exterior boundaries

of the Navajo Indian Reservation, decided to run for the

Office of County Supervisor for Apache County Super-

visorial District No. 3 which includes the area where Re-

spondent resides. Respondent filed the necessary nominat-

ing petitions, and in September, 1972, won the Democratic

Party primary. On November 7, 1972, Respondent was

elected County Supervisor for Apache County Supervis-

orial District No. 3, receiving 3,169 votes to 1,105 received

by Thomas A. Minyard, the losing candidate and also one

of the Petitioners herein. Despite this overwhelming victory

at the polls, through the various acts and omissions of

Petitioners as set forth below, Respondent was prevented

from serving in the office to which he was duly elected until

October 15, 1973.

On November 13, 1972, the Board of Supervisors of

Apache County met, as it is required to do under Arizona

law, for the purpose of canvassing the results of this and

other general elections in Apache County held the previous

week. The meeting lasted less than a couple of hours and

in fact was adjourned without a Certificate of Election

being issued to Respondent or any other person.

4

Taking advantage of this adjournment, Petitioners

Thomas E. Minyard, Ted Spurlock, Clair Platt and Jay

Reese (hereinafter collectively referred to as “Minyard”)

(a) commenced an action in the Superior Court of the State

of Arizona in and for the County of Apache, entitled

Thomas E. Minyard, et al. v. Apache County Board of

Supervisors, et al, (Action No. 4727 in the Superior Court

of the State of Arizona in and for the County of Apache)

to prevent Respondent from being certified as the duly

elected County Supervisor for Apache County Supervi-

sorial District No. 3 and (b) obtained an ex parte temporary

restraining order from the Honorable D. L. Greer, Judge

of the Superior Court of the State of Arizona in and for

the County of Apache, restraining the members of the

Board of Supervisors of Apache County and the Clerk

thereof from issuing to Respondent a Certificate of Election

to the Office of County Supervisor for Apache County

Supervisorial District 3. After the restraining order was

obtained, the Apache County Board of Supervisors re-

sumed its meeting on the next day (November 14, 1972)

and issued Certificates of Election to all other County

candidates elected in the November 7, 1972 general election.

The gravamen of Minyard’s complaint was that Respond-

ent, a Navajo Indian living on the Navajo Reservation,

should be prohibited from holding public office because he

“is immune from Service of Process and is not subject to

the jurisdiction of state or federal courts of Arizona, and

for the further reason that [Respondent] is not subject to

state or county taxation nor are the overwhelming majority

of his constituents” as a result of which, it is alleged, his

holding of the office “would infringe upon and violate the

constitutional rights of [Minyard] by violating the due proc-

5

ess clause of the 14th and 5th Amendments of the United

States Constitution.” (Complaint—Par. 3.)

Because of the Federal constitutional issues which ap-

peared on the face of the complaint, Respondent removed

the pending action to Federal Court by filing a Petition

for Removal on November 20, 1972. On December 11, 1972,

Minyard filed a Motion for Remand to the Arizona Superior

Court, and, after some discovery, the filing of various legal

memoranda and oral argument, on March 21, 1973, the

Honorable C. A. Muecke, Judge of the United States Dis-

trict Court for the District of Arizona, granted Minyard’s

Motion for Remand, concluding “that as presented this

case is inappropriate for determination by this Court since

interpretation of a State Statute not necessarily involving

a constitutional issue was involved. Thus, assuming juris-

diction, this case is ripe for abstention.”

On April 16, 1973, Respondent filed a Motion for Judg-

ment on the Pleadings and to Vacate Temporary Restrain-

ing Order. In response to this motion, Minyard filed a

Motion for Summary Judgment as well as a Motion for

Preliminary Injunction. On April 24, 1973, the Honorable

Laurance T. Wren, Judge of the Superior Court of the

State of Arizona, sitting for the Honorable D. L. Greer

(who had been previously disqualified), granted Minyard’s

Motion for Preliminary Injunction in order to “preserve

the status quo” and directed Minyard’s attorneys to pre-

pare the necessary formal order. Thereafter, on May 24,

1973, Judge Wren signed the Findings of Fact, Conclu-

sions of Law and Preliminary Injunction and the Prelimi-

nary Injunction Order preliminarily enjoining Petitioners

Apache County Board of Supervisors, the members thereof

and its Clerk from issuing a Certificate of Election for

County Supervisor of Apache County Supervisorial Dis-

6

trict No. 3 to Respondent, purportedly on the grounds, inter

alia, that:

(a) Minyard did not have an adequate remedy at

law;

(b) Minyard had established a prima facie case that

he would prevail on the merits of the matter since:

(i) Respondent was immune from service of

civil process while on the Navajo Reservation;

(ii) Respondent did not own any real or per-

sonal property subject to taxation by the State

of Arizona; and

(ec) Minyard would suffer irreparable harm and in-

jury if the Preliminary Injunction was not granted.*

From this Preliminary Injunction, Respondent sought re-

lief by Special Action from the Arizona Supreme Court.

On May 29, 1973 Respondent filed his Petition for a Spe-

cial Action with the Arizona Supreme Court. On that same

date Chief Justice Jack D. H. Hays ordered the Petitioners

to show cause on June 12, 1973 why the relief requested

in the Petition — the seating of Respondent as a county

supervisor — should not be granted. On June 6, 1973 Pe-

titioners’ answering memorandum was filed with the Ari-

zona Supreme Court and on June 12, 1973 oral argument

was heard by the Arizona Supreme Court.

Almost three months later, on September 7, 1973, the

Arizona Supreme Court granted the relief sought by Re-

spondent and in doing so recognized that Respondent had

fully complied with the requirements prescribed by law,

*Interestingly enough, although Petitioners requested Judge

Wren to conclude that Respondent was not a citizen, he refused to

do so and in fact found that Respondent was a qualified elector,

thus implicitly concluding that he was also a citizen. Accordingly,

there is no court—not even a trial court in the State of Arizona—

which has held that Respondent is not a citizen.

7

e.g., he was a qualified elector of the supervisorial district

which he sought to represent pursuant to A.R.S. § 11-211

(A). Petitioners sought a rehearing and stay and on Oc-

tober 2, 1973 the Arizona Supreme Court denied the motion

for rehearing as well as the request for a stay and there-

upon the Court’s mandate issued. On October 12, 1973 the

Judgment was entered by the Apache County Superior

Court requiring that a Certificate of Election be awarded

to Respondent.

It was not until October 15, 1973, over eleven months

after he had won the election in question, that Respondent

took his rightful place on the Board of Supervisors of

Apache County, Arizona.

ARGUMENT

Shorn of all slogans and irrelevancies, the gravamen of

Petitioners’ claim is that a Navajo Indian who resides on

the Navajo Indian Reservation should be constitutionally

prohibited from holding public office in the State of Ari-

zona even though he may fully comply with all the statutory

requirements for the office. However inappropriate it was

for Petitioners to request that the Arizona courts rewrite

the statutory requirements for public office, it is even more

so to make such a request of the Supreme Court of the

United States.

What Petitioners really complain of is that for the first

time a person who resides on an Indian Reservation has

succeeded to county office in a county which had theretofore

been exclusively controlled by a non-Indian minority. If

Petitioners are intent on preserving their political power,

the appropriate appeal is not to the Supreme Court of the

United States but rather (1) to the electorate through the

established electoral system or (2) to the legislature of the

|

8

State of Arizona to redraw the County lines to exclude those

voters who they consider their political antagonists (that is,

to exclude those portions of the County which contain Res-

ervation land). Just such a bill to redraw the County line

was introduced in the Arizona State Legislature last year

and is reprinted in the Appendix hereto.

If there is an equal protection or due process claim here,

it is that Respondent was denied the public office to which

he was elected for ten months and that others like him

have been, over a period of one hundred years, systematic-

ally and consciously prohibited from voting and holding

public office.

1. The Decision Below Is Clearly Correct.

A. A Reservation Indian Is a Citizen of the United States Pursuant to 8 U.S.C.

5 1401(a)(2) and a Resident of the State of Arizona.

As incredible as it may appear in the year 1973, the thrust

of Petitioners’ argument is that Indians who reside on

reservations established by the United States are not citi-

zens and therefore ineligible to vote and hold public office.

From the very first pleadings in this case, Petitioners have

cited Elk v. Wilkins, 112 U.S. 94 (1884) for the proposition

that as a matter of constitutional law Indians are not and

cannot be citizens of the United States.* No matter how

many times Petitioners may say so, Elk v. Wilkins did not

hold that Indians are not and cannot be citizens of the

*Respondent argued, and evidently the Arizona Supreme Court

eoncurred, that for Petitioners to prevail, Harrison v. Laveen, 67

Ariz. 337, 196 P.2d 456 (1948) (holding that reservation Indians

were entitled to vote in State elections) had to be overruled. In

refusing to overrule Harrison v. Laveen, the Arizona Supreme

Court implicitly found that reservation Indians are citizens of the

United States, for one cannot vote under Arizona law unless he is

; citizen of the United States and a resident of Arizona. See A.R.S.

16-101.

9

United States as a matter of constitutional law. Elk v.

Wilkins merely held that in the absence of express con-

ferral of citizenship by Congress, an Indian could not be-

come a citizen merely by voluntarily rejecting his tribal

affiliation. Quoting from Mr. Justice Taney’s opinion in

Scott v. Sandford, 60 U.S. 691 (1856), the Court in Elk v.

Wilkins noted that Indians “may without doubt, like the

subjects of any foreign government, be naturalized by

authority of congress, and become citizens of a state, and

of the United States.” 112 U.S. at 101. This is precisely

what happened in 1924 when Congress passed the Citizen-

ship Act, 43 Stat. 253 (8 U.S.C. § 1401).

As noted in the Petition, 8 U.S.C. § 1401(a) (2) expressly

declares Indians to be citizens of the United States, and

while Petitioners may prefer to ignore the state of the law

since 1884, every court that has had occasion to consider

the matter has held that Reservation Indians are citizens

of the United States. See Halbert v. United States, 283 U.S.

753 (1931), Ex Parte Green, 123 F.2d 862 (2nd Cir. 1941),

Totus v. United States, 39 F.Supp. 7 (E.D.Wash. 1941).

Even the Arizona Superior Court which prevented Re-

spondent from taking his seat for ten months did not agree

with Petitioners’ argument that Respondent is not a citi-

zen of the United States.

Not only are American Indians citizens but also they are

residents of the state in which they reside. United States r.

Nice, 241 U.S. 591 (1916), Boyd v. Nebraska, 143 U.S. 135

(1892), Porter v. Hall, 34 Ariz. 408, 271 P. 411 (1928),°

Harrison v. Laveen, supra, and Deere v. New York, 22 F.2d

851 (N.D.N.Y. 1927). In any event, the question of whether

*While the Porter case held that Indians did not have the right

to vote, this decision was not based upon citizenship or residency

grounds but rather upon the mistaken belief that Indians were

persons under guardianship. 271 P. at 415-419. Indians were given

the right to vote in Arizona in 1948.

10

a Reservation Indian is a resident of the State of Arizona

is not a Federal constitutional question and is not properly

before this Court.

B. The Equal Protection and Due Process Clauses of the Fourteenth Amend-

ment Do Not Require the State of Arizona to Prohibit a Reservation

Indian from Holding the Office of County Supervisor.

A.R.S. § 11-211(A) sets out the affirmative requirements

for holding the office of County Supervisor. That section

provides as follows:

“... In each county having a population of less than

two hundred thousand as determined by the latest

United States decennial census, a board of supervisors

shall consist of three members . . . who shall be qualified

electors of their supervisorial district and who shall

be elected at a general election at which the president

of the United States is elected.” [Emphasis supplied.]

While Petitioners do not specifically request this Court to

find that A.R.S. § 11-211(A) is unconstitutional, such a re-

quest is certainly implicit in their argument. In recent

years, the Federal Government has restricted the State’s

freedom to impose limitations on the franchise and the

right to hold public office, but in this case it is not the State

of Arizona which seeks to restrict the right to hold office,

but rather Petitioners who seek a narrower interpretation

than that allowed by State law. The general right of States

to prescribe qualifications for voting and impliedly office-

holding are set out in Lassiter v. Northampton County

Board of Elections, 360 U.S. 45 (1959) where the question

at issue was a literacy test (literacy tests having since been

abolished by Congress). In that case literacy tests were

upheld and the Court said:

“The States have long been held to have broad

powers to determine the conditions under which the

right of suffrage may be exercised . . .” 360 U.S. at 50.

il

In fact, in some respects, Arizona has been more liberal

in permitting people to vote than the Federal Government.

For example, the 1912 amendment of Article VII, Section 2

of the Arizona Constitution provided that women could ex-

ercise the franchise. This may be compared with the Nine-

teenth Amendment to the United States Constitution which

granted the right of women to vote, but did not do so until

1920. There seems to be no challenge made to the right of

a State to extend the franchise beyond that which may be

the minimum required by Federal law. Similarly, it is

important to note that prior to the enactment of the Twenty-

sixth Amendment to the United States Constitution, lower-

ing the voting age to 18, several States had already lowered

the voting age below 21.

The question at issue in this action is the related right

to hold office. In the recent case of Bullock v. Carter, 405

U.S. 134 (1972), the United States Supreme Court over-

turned the Texas primary election filing fee system and

held, inter alia:

“The initial and direct impact of filing fees is felt by

aspirants for office, rather than voters, and the Court

has not heretofore attached such fundamental status

to candidacy as to invoke a rigorous standard of re-

view. [footnote omitted] However, the rights of voters

and the rights of candidates do not lend themselves to

neat separation; laws that affect candidates always

have at least some theoretical correlative effect on

voters.” 405 U.S. at 142-143.

Given the relationship between the right to vote and the

right to become a candidate for and hold public office, and

further given the fact that the State of Arizona has chosen

not to make any distinction between those rights with re-

spect to the Office of Supervisor, it must follow that Petition-

12

ers’ argument is ill conceived since Respondent does meet

all the State requirements for County Supervisor.

Petitioners nevertheless claim that Respondent cannot

hold the Office of County Supervisor because (i) he is im-

mune from service of civil process while on the Navajo

Reservation and (ii) he does not own any real or personal

property subject +o taxation by the State of Arizona. Even

assuming the correctness of these legal propositions as

abstract matters, it hardly follows that one who is immune

from service of civil process or one who does not own real

or personal property subject to taxation should be pro-

hibited from holding public office. As noted above, the re-

quirements for the Office of County Supervisor are clearly

set out in the statute. The courts cannot impose additional

requirements In any event, when one examines the legal

conclusions upon which this argument is premised, it is

evident that these conclusions themselves are either erron-

eous or beside the point.

With respect to the claim that a person must own taxable

property to hold public office, it should be noted that the

Supreme Court of the United States has made it quite

clear that one need not own property to vote in local bond

elections. Cipriano v. City of Houma, 395 U.S. 701 (1969),

City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204

(1970) and Kramer v. Union Free School District No. 15,

395 U.S. 621 (1969). The test for holding public office should

be no different. Moreover, to the extent that Respondent

owns any property off the Reservation he pays taxes on

that property just like any other person. He pays no real

property taxes at the present time because he does not own

any real property. The real property on which Respondent

resides is owned by the United States Government in trust

for the Navajo Tribe which, in turn, has granted a homesite

——_s

13

lease to Respondent. While Respondent is immune from

income taxes from income earned on the Reservation under

the recent ruling of the Supreme Court of the United States

in McClanahan v. State Tax Commission of Arizona, ....

US. ...., 93 S. Ct. 1257 (1973), he must pay State income

taxes on any income earned off the Reservation. Indeed,

Respondent himself pays income tax to the State of Arizona

on his salary as County Supervisor. Moreover, Petitioners

misstate the law with respect to Federal taxation of In-

dians for, like all other citizens, Indians pay Federal taxes.

See Comn’r of Int. Rev. v. Walker, 326 F.2d 261 (9th Cir.

1964).*

Carried to its logical extreme, if Petitioners prevail any

person who enjoys a tax exemption would be prohibited

from running for public office. The fact of the matter is

that the Federal and State tax laws do contain certain

inequities, but merely because a person does not bear the

full burden of the taxes imposed by law does not mean that

he does not have an interest in the affairs of his government

and should be prohibited from holding public office. Indeed

several of Petitioners themselves enjoy certain tax advan-

tages and writeoffs through their ownership of cattle which

are not enjoyed by persons whose sole source of income is

a salary. While this may constitute an inequity in the tax

system, it hardly follows that a cattle owner should be pro-

hibited from holding office. Respondent knows of no case

which requires that an individual be subject to taxes or

other laws himself in order to vote for such taxes or

*Petitioners’ statement at page 8 that “the (non-Indian) minor-

ity of Apache County residents. . .pay all of the county taxes” is,

grossly in error. There is absolutely no evidence in the record (nor

could there be any) to support this hyperbole, and, in fact, the

publie records of Apache County demonstrate that the County

derives more in tax revenues from sources on the Navajo Reserva-

tion than it spends there.

14

laws either as a citizen in an election or as a public office

holder. The nonsense of “taxation without representation”

as expressed by Petitioners is essentially that they and

their “constituents” for whom they presume to speak lack

sufficient voting strength in order to have their will become

law. Even assuming that non-Indians are in the minority in

Apache County and that no non-Indian candidate would

ever win an election contest (which has not heretofore been

the case), surely no conceivable reading of constitutional

law can require the minority be given the right to govern.

As to the claim that Respondent would not be subject to

service of civil process for acts of wrongdoing committed

while serving as a County Supervisor, it is clear that if

Respondent is guilty of any malfeasance or misfeasance

while in office, he can be recalled just like any other officer

under A.R.S. § 19-201 et seg. without being served process.

Moreover, even assuming that Respondent cannot be served

with process on the Navajo Reservation for acts committed

off the Reservation, under A.R.S. § 38-291(7) if he does not

perform the duties of his office for three consecutive months

his office shall be deemed vacant. See McCluskey v. Hunter,

33 Ariz. 513, 266 P. 18 (1928) where the Court stated:

“ .. [I]f plaintiff ceased to discharge the duties of

the office for three consecutive months without being

sick or absent from the State by permission of the Leg-

islature the office became vacant at the expiration of

this period, ipso facto, as a result of his own act, and

necessarily no hearing or order of removal was re-

quired . ..” 266 P. at 23.

Thus, if Respondent chooses not to come off the Reserva-

tion for fear of being served, he will be removed from office

automatically.

The question the Court ought to ask is not whether Re-

spondent is subject to service of civil process but whether

15

he can be removed, as any other officer, if he does not carry

out his duties properly. The answer to that question is a

resounding yes. Moreover, Petitioners are in error when

they state that under Arizona law a Reservation Indian can-

not be served with process for an act committed off the

Reservation. No Arizona appellate court has ruled on that

precise point and, within the past nine months, the Supreme

Court of the State of New Mexico has ruled that a Navajo

is subject to service of process for an act committed off

the Reservation in the State of New Mexico. See State

Securities, Inc. v. Jimmie and Ruby Anderson, ....N.M. ....,

506 P.2d 786 (1973).

Finally, as noted by Chief Justice Ross in his dissent in

Porter v. Hall, supra (the Arizona case which held that

Reservation Indians were not entitled to vote, a case which

was subsequently overruled by Harrison v. Laveen, supra) :

“It may be that these plaintiffs and others in their

situation, should not, as a matter of public policy, be

granted the franchise, since they are not entirely eman-

cipated from federal control, nor amenable while on

the reservation to the state laws; but as the laws are

now written it seems to me they are entitled to register

and to vote.” 271 P. at 419.

As Justice Ross would have done in 1928 and as the

Supreme Court of Arizona did in Harrison v. Laveen in

1948 in vindicating the position taken by Chief Justice Ross,

the proper function of this Court is that of applying the

law as it stands, leaving to the Arizona Legislature the duty

of changing the requirements for the Office of County Sup-

ervisor, if in its ultimate wisdom such a change is deemed

appropriate.

16

il. There Is No Conflict of Decision.

As pointed out above, not only is Elk v, Wilkins not in

conflict with the decision below, but rather the prediction in

Elk that Indians could be made citizens was in fact borne

out by an Act of Congress in 1924. Every court that has

had occasion to rule on the matter has held that Reservation

Indians are citizens. See p. 9, supra.

lll, There Is No Important Question of Federal Law.

Certainly it is important that American Indians be ac-

corded the full rights possessed by other citizens. Their

special position within the American political process is a

direct result of the history of this country in which they

and not the white settlers were the original inhabitants. In

return for the transfer of most of this country to the whites,

the Indians have retained as a quid pro quo certain rights

and privileges. This is small payment indeed for what has

been given up. It is only in Petitioners’ “Alice in Wonder-

land” view of this world that the American Indian, whose

life span is shorter, whose level of education and income are

substantially less and whose level of unemployment is eight

times higher than that of his White brother, could ever be

considered a “most favored citizen” (Petition, page 17).

There are, indeed, many propositions — including those

we consider “self-evident” — that are “important”. But

that does not make them issues worthy of this Court’s con-

sideration. Thus, the right of the majority to govern is an

important Federal question, but this Court has long laid

to rest any doubt that the law stands behind the majority

and a review in this case is not required or appropriate to

consider Petitioners’ dissenting view. See: Baker v. Carr,

17

369 U.S. 183 (1962) ; Reynolds v. Sims, 377 U.S. 533 (1964) ;

Lucas v, The Forty-fourth General Assembly, 377 U.S. 713

(1964).

The thrust of Petitioners’ argument is that the majority

has no right to govern. Their inclusion of the recently filed

complaint seeking to reapportion Apache County (Ap-

pendix D) is designed to show how Indians plan to “take

over” the County. What the complaint and the history of

Apache County really show is that a minority has held sway

for many years.* Nor is it even certain that that will change

in the future. In the same election in the same area in which

Respondent was elected, an Anglo candidate for the Ari-

zona House of Representatives defeated a Navajo candi-

date. Thus, Petitioners’ fear of domination by a majority

is not only wrong in principle but it is also too remote and

speculative to warrant consideration by this Court in any

event.

In short, Petitioners are asking this Court to declare that

they, as a minority in Apache County, have an individual

right to govern even when they lose an election and that

their asserted right presents an important Federal ques-

tion. What they have presented, however, is not a “ques-

tion” at all, let alone an “important Federal question”.

Rather, it is an absurd hypothesis rejected by this Court

and every other court in the land and is unworthy of

further consideration.

*At page 8 of their Brief, Petitioners state that according to

the 1970 Census of Population (Pl. Ex. 2), approximately 75% of

the people in Apache County are “Reservation Indians”, The 1970

Census data, however, shows only that 75% of the people in Apache

County are “Indians”—not necessarily “Reservation Indians”,

18

CONCLUSION

For the reasons stated above, Respondent prays that the

Petition for a Writ of Certiorari should be denied.

December 27, 1973

Paut F, Eckstern

222 North Central Avenue

Phoenix, Arizona 85004

Attorney for Respondent

Of Counsel:

Jack E, Brown

Grorce P. Vuassis

LawrkENcE A. Ruzow

Brown, Vuassis & Bain

222 North Central Avenue

Phoenix, Arizona 85004

(Appendix Follows)

Appendix

State of Arizona

31st Legislature

1st Regular Session

SENATE

S.B. 1310

INTRODUCED

February 13, 1973

Introduced by Senators Corbet, Turley, Rottas, Baldwin

AN ACT

RELATING TO COUNTIES; PROVIDING FOR CRE-

ATION OF A NEW NAVAJO COUNTY; PROVIDING

FOR A COUNTY COMMISSION TO ORGANIZE SUCH

COUNTY; COMBINING GRAHAM AND GREENLEE

COUNTIES INTO GRAHAM-GREENLEE COUNTY;

AMENDING SECTIONS 11-103, 11-105 AND 11-107,

ARIZONA REVISED STATUTES; REPEALING

SECTIONS 11-108 AND 11-111, ARIZONA REVISED

STATUTES; AMENDING TITLE 11, CHAPTER 1,

ARTICLE 1, ARIZONA REVISED STATUTES, BY

ADDING A NEW SECTION 11-111, AND MAKING

AN APPROPRIATION.

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 11-103, Arizona Revised Statutes, is

amended to read:

11-103. Apache county

Apache county, the county seat of which is St. Johns, is

bounded as follows:

Commencing at a point where the boundary line between

Arizona and New Mexico intersects the thirty-seventh par-

sseniienestneniiennensibineeibeneama come

2 Appendiz

allel of north latitude, being the northeast corner of this

state, thence south along the boundary line between Ari-

zona and New Mexico to a point where the first standard

parallel north intersects such boundary line, being the

northeast corner of Greenlee county; thence due west of

the Black river; thence westerly and down the Black river

along the northern boundary of Greentee—end—Greham

rt ep tte a ete teenie tpt cate ee

ateng—sueh—meridien GRAHAM-GREENLEE COUNTY

TO ITS INTERSECTION WITH THE EAST BOUND-

ARY LINE OF GILA COUNTY, WHICH IS THE ONE

HUNDRED TENTH DEGREE OF WEST LONGITUDE;

THENCE NORTH TO ITS INTERSECTION WITH

THE THIRTY-FOURTH DEGREE OF NORTH LATI-

TUDE; THENCE WEST TO ITS INTERSECTION

WITH THE WEST BOUNDARY LINE OF THE WHITE

MOUNTAIN INDIAN RESERVATION; THENCE

NORTH to the thirty-seventh parallel of north latitude;

thence east along such parallel to the boundary line between

Arizona and New Mexico, the point of beginning, EXCLU-

SIVE OF ALL LANDS NOW DESCRIBED AS NAVAJG

COUNTY PURSUANT TO SECTION 11-111.

See. 2. Section 11-105, Arizona Revised Statutes, is

amended to read:

11-105. Coconino county

Cococino county, the county seat of which is Flagstaff, is

bounded as follows:

Commencing at the point where the thirty-seventh parallel

of north latitude and the meridian of one hundred ten de-

Appendiz 3

grees forty-five minutes west longitude intersect; thence

south along such meridian of one hundred ten degrees forty-

five minutes west longitude to the rim rock of the Mogollon

mountains; thence westerly along the rim rock of the Mo-

gollon mountains, and the northern boundary of Gila coun-

ty to the east line of range seven east, Gila and Salt River

Guide meridian; thence north on such east line of range

seven to the fourth standard parallel; thence west on the

fourth standard parallel to the east line of range five east;

thence north on the east line of range five east to the north

line of township eighteen north; thence west on the north

line of township eighteen north to the Gila and Salt River

Guide meridian; thence north on such meridian to the fifth

standard parallel; thence west on such parallel to the east

line of range two west; thence north on the east line of

range two west to a point one mile north of the center

of the right of way of the Atchison, Topeka & Santa Fe

railroad; thence westerly in a line one mile north of and

parallel with the center of such right of way to the meridian

one hundred thirteen degrees twenty minutes west longi-

tude; thence north along the meridian line one hundred

thirteen degrees twenty minutes west longitude to the point

where the meridian line one hundred thirteen degrees

twenty minutes intersects the Colorado river; thence up

the Colorado river to the mouth of the Kanab wash; thence

to Kanab wash and creek to a point where such wash and

ereek intersects the thirty-seventh parallel of north lati-

tude; thence east along the thirty-seventh parallel of north

latitude to the meridian of one hundred ten degrees forty-

five minutes west longitude, the place of beginning, EX-

CLUSIVE OF ALL LANDS NOW DESCRIBED AS

NAVAJO COUNTY PURSUANT TO SECTION 11-111.

ant cme nd eine eneoenserne ~ er A tt ERE

+ Appendiz

Sec. 3. Section 11-107, Arizona Revised Statutes, is

amended to read:

11-107. Graham-Greenlee county

Grehem- GRAHAM-GREENLEE county, the county seat

of which is Safford, is bounded as follows:

Commencing at a point on the east line of range eighteen

east, six miles south of where the line of the second stan-

dard parallel south intersects the eastern line of range

eighteen east, being the northwest corner of Cochise county;

thence due north on the east line of range eighteen, being

the eastern boundary of Pinal and Gila counties, to a point

where the east line of range eighteen east intersects the

Gila river; thence along the Gila river to the mouth of the

San Carlos river; thence up the San Carlos river to a point

where the San Carlos river intersects the north line of

township one north; thence east along the north line of

township one north and along the southern boundary of

Gila county to the one hundred tenth meridian of west

longitude; thence north 2!ong the one hundred tenth merid-

ian west longitude to the Black river; thence up the Black

sa den tn ete

River-Guide-mesidian; IN A GENERAL NORTHEAST-

ERLY DIRECTION TO THE INTERSECTION OF THE

CENTER OF THE BLACK RIVER WITH THE FIRST

STANDARD PARALLEL NORTH, GILA AND SALT

RIVER GUIDE MERIDIAN; THENCE DUE EAST

ALONG SUCH FIRST STANDARD PARALLEL TO

ITS INTERSECTION WITH THE EAST BOUNDARY

OF ARIZONA; THENCE SOUTH ALONG THE EAST

BOUNDARY OF ARIZONA TO ITS INTERSECTION

WITH THE NORTH BOUNDARY OF COCHISE COUN-

TY; thence west along the northern boundary line of Co-

chise county to a point six miles south of where the eastern

line of range eighteen east intersects the second standard

parallel south, being the place of beginning.

Sec. 4. Repeals

Sections 11-108 and 11-111, Arizona Revised Statutes,

are repealed.

See. 5. Title 11, chapter 1, article 1, Arizona Revised

Statutes, is amended by adding a new section 11-111, to

read:

11-111. Navajo county

NAVAJO COUNTY, THE COUNTY SEAT OF WHICH

IS WINDOW ROCK IS BOUNDED BY THE EXTER-

IOR BOUNDARIES OF THE NAVAJO INDIAN RES-

ERVATION WITHIN THIS STATE, INCLUDING THE

HOPI INDIAN RESERVATION AND OTHER LANDS

LOCATED WITHIN SUCH EXTERIOR BOUNDARIES.

Sec. 6. County commission; members; appointment;

term; duties ; initial board of supervisors

A. There shall be a county commission of Navajo county,

composed of five bipartisan members appointed by the

6 Appendiz

governor. Commission members shall be residents of Nava-

jo county and shall be appointed to a term expiring on

January 1 next following the general election held in 1974.

B. The county commission shall be responsible for the

organization of Navajo county.

C. The initial county board of supervisors of Navajo

county shall be elected at the general election held in 1974

to serve a term beginning January 1, 1975, and expiring two

years thereafter. Thereafter, all county boards of super-

visors of Navajo county shall be elected for a term of four

years.

See. 7. Appropriation; purpose; exemption

A. The sum of twenty thousand dollars is appropriated

to the county commission of Navajo county to carry out the

provisions of this act.

B. The appropriation made pursuant to this section is

exempt from the provisions of section 35-190, relating to

lapsing of appropriations.

See. 8. Effective date

The provisions of this act shall become effective on Jan-

uary 1, 1974, except that the provisions of section 3 of this

act shall become effective on January 1, 1977.