Rawlins, Davis, Christy, Kleinman & Burrus, of Phoenix, for petitioner.
Platt & Greer, of St. Johns, for respondent.
H. S. McCluskey, Phoenix, for Industrial Commission, amicus curiae.
Udall, Justice. La Prade, C. J., and Stanford, Phelps, and De Concini, JJ., concur.
[70 Ariz. 381] Petitioner, Roland Begay, a Navajo Indian, is seeking by habeas corpus his release from incarceration in the Apache County jail to which he was committed
after having been found guilty of contempt of the superior court of that county for failure to comply with the terms of a divorce decree. Presented is a question of first impression not only in this court but insofar as we have been able to determine in any appellate court in the United States.
The facts are that the petitioner and Alice R. Begay obtained a marriage license under the provisions of Sec. 63-106, A.C.A.1939, signed by the clerk of the Superior Court of Apache County, Arizona, and were married on the reservation in a civil ceremony. Both of the contracting parties are non-emancipated members of the Navajo Indian Tribe and at all times were residing upon that portion of the Navajo Reservation lying within the confines of Apache County.
Marital troubles having developed, Roland Begay, the petitioner, filed a divorce complaint against his wife in the Navajo Court of Indian Offenses, a tribal court. A hearing was held, both parties being before the court, and a formal written decree of divorce was granted to the petitioner. The decree recited that there were no children involved in the case. Thereafter, Alice R. Begay, as plaintiff, filed suit for divorce against Roland Begay in the Superior Court of Apache County. Summons was issued and served upon him on the Indian reservation. He failed to answer and a purported judgment and decree of divorce was rendered in favor of the plaintiff and against the petitioner as defendant.
This decree allowed alimony to the wife and support money for the maintenance of [70 Ariz. 382] a minor child born subsequent to the date of the tribal divorce, together with costs and counsel fees. Inasmuch as the petitioner made no payments under this decree, some sixteen months later the plaintiff filed her affidavit charging contempt of court. An order to show cause was issued, in response to which the petitioner filed a motion to quash upon practically the same grounds as now urged for his release upon habeas corpus. After a hearing, the court filed a written opinion and order denying the motion to quash and finding that Roland Begay was guilty of contempt of court for failure to abide by the terms of the decree of divorce theretofore entered. It was judicially established that he was in arrears on his payments in the sum of $ 1175, which amount he was ordered to pay forthwith. Thereafter, a warrant and commitment for contempt was issued against petitioner and he was taken into custody on the reservation by the sheriff of Apache County and incarcerated in the county jail.
Petitioner then made application to this court for a writ of habeas corpus, which was granted. Upon the return date the sheriff produced the body of the petitioner in court and made answer and return to the writ. At the conclusion of oral argument, upon the assurance of the chairman of the Navajo Tribal Council that the petitioner would, if not discharged, be ...