Matter of the Application of Ted DENETCLAW, a Navajo Indian, for a Writ of Habeas Corpus.
[83 Ariz. 300] D. L. Greer, Apache County Atty., St. Johns, for appellant.
Laurence A. Davis and Lawrence C. Huerta, Window Rock, for appellee.
UDALL, Chief Justice.
This is an appeal by the State of Arizona from an order of the Superior Court of Apache County, in a habeas corpus matter, releasing petitioner Denetclaw from a commitment issued by a justice court and restoring him to his liberty.
The facts, which are not in dispute, may be summarized as follows: Petitioner, Ted Denetclaw, a Navajo tribal Indian, was arrested on April 26, 1957, by Kenneth Febach, an Arizona highway patrolman, on the right of way of state highway numbered 'U. S. 66', which at aht point (Section 5, Tp. 22 North, Range 31 East) lies wholly within the exterior boundaries of the present Navajo Indian Reservation, in Apache County, Arizona. It is conceded that originally this 19-mile strip of highway was not on the reservation but was brought within it by an Act of Congress dated June 14, 1934 (48 Stat. 960) which extended southward the boundaries of said reservation. The Act contains the following significant proviso protecting prior legal rights, viz.:
'All valid rights and claims initiated under the public land laws prior to approval hereof involving any lands within the areas so defined, shall not be affected by this Act.'
The Act further permitted exchanges of lands then owned by the State of Arizona
and appropriated money for the purchase of privately owned lands; section 5, supra (an odd-numbered railroad grant section) obviously fell within this latter category. Unfortunately no effort was made in the instant case to establish that the State of Arizona probably had a valid easement for this highway before it became a part of the reservation that might carry with it the right to police same as to all travelers. Petitioner was taken by the patrolman before the Justice of the Peace of the Puerco precinct at Chambers (which is off the reservation) and was there formally charged with two misdemeanors involving traffic [83 Ariz. 301] violations, viz., driving under the influence of intoxicating liquor (A.R.S. § 28-692), and with reckless driving (A.R.S. § 28-693). He entered a plea of guilty to both counts and was sentenced to pay a fine of $125; the judgment further providing that in the event he failed to pay the fine he was to serve in the county jail one day for each $1 of the fine not paid. Petitioner, having failed to pay the fine, was committed that day to the custody of the sheriff and was incarcerated in jail at St. Johns under said commitment.
Application for a writ of habeas corpus was filed by petitioner on May 1, 1957. The writ issued and response was made thereto by the sheriff, whereupon a hearing was had, and on May 21, 1957, the learned trial court concluded as a matter of law that the justice court was without jurisdiction to try the petitioner because he was an Indian and the claimed offenses were committed upon an Indian reservation. Thereupon an order was entered releasing petitioner from said commitment and restoring him to liberty. This appeal followed.
At the outset it should be noted that we are here confronted with a very narrow issue, i. e., the jurisdiction of the justice court. Counsel for petitioner, in their answering brief, make this point clear. We quote:
'The authority of Arizona State Highway Patrolman Febach in the instant case not only to investigate the accident, but also to arrest the appellee (petitioner) has not been questioned either here or below. All that has been questioned is the jurisdiction of the Justice Court of Apache County to try the appellee.'
The basis for conceding the officer's right to arrest is presumably because of an assertion in the brief that the patrolman also held a federal commission.
The basic question posed by this appeal is:
'Do courts of the Estate of Arizona have jurisdiction over offenses in violation of the State traffic code, committed by an Indian upon state highways running through an Indian reservation?'
While a copy of the document was not submitted in evidence it is conceded that the Secretary of the Interior had, prior to the construction of the present U. S. Highway '66', made, executed, and delivered to the State of Arizona (acting by and through its Highway Department) an easement through that portion of the Navajo Indian Reservation where said highway is now ...