HARRISON et al.
Appeal from Superior Court, Maricopa County; Thomas J. Croaff, Judge.
Reversed and cause remanded.
Richard F. Harless and Lemuel P. Mathews, both of Phoenix, and Ben B. Mathews, of La Mesa, California, for appellants.
Francis J. Donofrio, County Atty., Warren L. McCarthy, Deputy County Atty., both of Phoenix, for appellee.
T. Vincent Quinn, Asst. Atty. Gen., Frank E. Flynn, U. S. Atty. for Dist. of Arizona, and Charles B. McAlister, Asst. U. S. Atty. for Dist. of Arizona, both of Phoenix, James E. Curry and Frances Lopinsky, both of Washington, D. C., and Charles MacPhee Wright, of Tuscon (Felix S. Cohen, of Washington, D. C., of counsel), amici curiae.
Udall, Justice. Stanford, C. J., and LaPrade, J., concur.
[67 Ariz. 340] The right of American Indians to vote in Arizona elections for state and federal officers has after two decades again arisen, like Banquo's ghost, to challenge us.
Frank Harrison and Harry Austin, members of the Mohave-Apache Indian Tribe, residing on the Fort McDowell Indian Reservation, which lies wholly within the Scottsdale precinct of Maricopa County, Arizona, sought to register preparatory to exercising their claimed right of franchise. When Roger G. Laveen, county recorder of said county, refused to permit them to do so, the Indians as plaintiffs brought this action in the superior court of Maricopa county seeking a writ of mandamus compelling the recorder to register them. The complaint alleged in detail that plaintiffs possessed all the qualifications for suffrage as set forth in the constitution and laws of the state of Arizona, and asserted that if they were denied the right to register and vote they would be deprived of the franchises, immunities, rights, and privileges of citizens which are guaranteed to them under the constitution and laws of both the United States and the State of Arizona.
The defendant recorder moved to dismiss the complaint for the reason that it failed to state a claim upon which relief could be granted under the authority of the decision of this court in the case of Porter v. Hall, 1928, 34 Ariz. 308, 271 P. 411, 412. This motion was granted and subsequently judgment was entered for the defendant as the plaintiffs elected to stand upon their complaint. An appeal was taken and the matter is now before us for review. Helpful briefs have been filed in behalf of the United States of America, the National Congress of American Indians, and the American Civil Liberties Union, who, by permission, appear as amicus curiae.
We shall refer to the parties as they were designated in the lower court, the
Indians as plaintiffs and the recorder as defendant.
The allegations of the complaint in the instant case vary somewhat from the agreed statement of facts upon which the Porter case was tried, e. g., it is alleged that plaintiff Harrison was inducted into the military service in World War II and thereafter received an honorable discharge. Furthermore, in paragraph V appears this allegation: "That the plaintiffs and each of them own property, some of which is located at various times outside the boundaries of the said Fort McDowell Indian Reservation in the State of Arizona. That the plaintiffs and each of them assessed for taxes by and pay taxes to the State of Arizona. That the plaintiffs and each of them are subject to the civil and criminal laws of the State of Arizona and of the United States of America, and are permitted to leave said Fort McDowell Indian Reservation at any time that either or both of said plaintiffs so desire."
[67 Ariz. 341] However, it is our view that neither the payment of taxes nor the rendering of military service by plaintiff is in any way determinative of his right to vote for the reason that the law (our constitution and statutes) does not prescribe such as necessary qualifications of an elector. But basically the same question is presented here as was presented in the Porter case, and that is, are plaintiffs persons "under guardianship" within the meaning of section 2, article 7, of the Arizona Constitution and section 55-201, A.C.A.1939, which denies the franchise to persons who are convicted felons or are "under guardianship, non compos mentis, or insane". If this primary question be answered in the affirmative, as it was in the Porter case, then we must determine whether such denial of the franchise to plaintiffs violates the Fourteenth and Fifteenth Amendments to the Constitution of the United States.
The opinion in the last-mentioned case laid at rest the contention there made that members of Indian tribes residing on Indian reservations were not "residents of the state of Arizona", as it was held that Indian reservations in Arizona are within political and governmental boundaries of the state, and limitations on state's jurisdiction in Enabling Act apply only to Indian lands considered as ...