Tracy v. Superior Court

рrecisely determine what constitutes DISPOSITION timely objection potential to a Rule 8 viola- Because we conclude that defendant has tion, we now hold requires that Guerrero violation, waived rule 8 we vacate the object 150-day pe- defendant to before decision, appeals’ court of memorandum va- expires riod in order to avoid a waiver of dismissing cate the trial court’s order the Rule Campa, 8 violation.3 See State v. prosecution, and remand this matter to the 468, 470, 164 Ariz. 793 P.2d proceedings trial court for consistent with (review (App.1990) granted) (citing, inter opinion. this alia, Court, Andre v. City Tucson (“The (App.1990)) Ariz. 797 P.2d 699 FELDMAN, V.C.J., CAMERON, J., appellant record indicates that the failed to concur. impending advise trial court of the imposed by 8.1(d). deadline Rule He there- MOELLER, Justice, specially fore appeal.”). waives his Hinson claim on concurring. The defendant cannot wait until after the I concur in the result. 150-day period expired and then claim a Rule 8 violation after it is too late CORCORAN, Justice, specially prevent trial court to the violation. concurring. appeals The court of in this case conclud- I, also, concur in the result. “[djefense ed that counsel did not waive 150-day requirement the de- because fendant would not have been aware including trial court was the June 7 to period

June 28 time as nonexcludable time ... until the trial court ruled on the motion reject dismiss October.” We analysis because we believe that the time 810 P.2d 1030 at which the trial court ruled on the motion TRACY, Petitioner, K. Tom dismiss this case is De- irrelevant. fense counsel either knew or should have The SUPERIOR COURT OF MARICOPA prior knоwn to June 7 the court Gregory COUNTY and the Honorable period found from June 7 to June 28 Martin, thereof, judge Respondents, nonexcludable, 150-day period expire on approximately June 24. However, objection he made no Rule 8 until NATION, The NAVAJO aka the September Thus, we believe that de- Indians, Party Tribe of Real fense counsel 150-day require- waived the in Interest. ment this case. Andre v. Tucson Court, 160, 162, City 165 Ariz. 797 P.2d No. CV-90-0407-SA. Ariz.Adv.Rep. (App. Arizona, Supreme Court of 1990) (“Before appellant complain could En Banc. the lack of a trial the 150 about days, upon timely incumbent him to was April request a resolution as whether the de- lays interruptions caused the various

should have been excluded under Rule 8.4.”). period 150-day this case of time before the

3. Because involves defendant who reasonable period object grounds expires rule trial did not until after the so that the act to reasonable, 150-day expired, period had we need not deter- avoid the Rule 8 violation. What course, 150-day period expires depend mine how far before the will on the circumstances object the defendant must in order to avoid a the case. We believe that the determination waiver of the Rule 8 violation. We do note our what is a reasonable amount of time is within belief, however, objection come a discretion of the trial court. must the sound Rothstein, Daly, Hughes by Donatelli & Rothstein, Hughes, Richard Robert R. Donatelli, Fe, H. Santa Mark Eric Department of Justice Dahlstrom, Gen., Deputy Atty. Window Rock, party for real in interest.

OPINION

FELDMAN, Vice Chief Justice. Tracy (Tracy) who K. Tom and others purposes of joined were as intervenors for special (collectivelypetitioners) this action1 challenged superior jurisdiction court’s compelling their attendance to issue orders in a criminal trial before the as witnesses district court of the Nation. court’s order issued under Arizona’s Uni- Act to Secure the of Wit- form Attendance From nesses Without a State Criminal Proceedings, A.R.S. 13-4091 §§ (the Act). superior assert Petitioners that the finding Na- judge erred that the recognized entity by tion is an Tracy argues a risk Act. also that he faces hardship” “undue under A.R.S. 13-4092(B) deprived in that he will be privilege against constitutional self-in- his required testify crimination before petition- District Court. The other their as- ers make similar claims based on sumptions District Court recognize professional priv- will not various ileges. this accepted jurisdiction because

We impres- an first matter constitutes issue of question of in Arizona and involves the sion Sacks, Kasen, Tierney by & David P.A. separate, our and the comity between state Phoenix, Johnson, for Tierney, C. Paul G. Na- sovereign jurisdiction of the Navajo petitioner. tion, part is located in Broening, Oberg by & Jan E. Woods Arizona. We geographical boundaries of Phoenix, Cleator, for intervenor Francis pursuant to article have Duckworth. Rule 5(1) Arizona Constitution Jones, by & Hochuli A. Melvin Skelton After 8(b), Ariz.R.P.Spec.Act., A.R.S. 17B Phoenix, McDonald, Jr., intervenor A. for relief, thus hearing argument, we denied McDonald. Melvin compelling refusing to vacate the orders Stewart, attendance, opinion Harry McLean A. stated Stewart & Phoenix, Jr., for Acosta. follow. intervenor Joe Actions, Arizona, Special 17B formerly relief writs Rules of Procedure obtained prohibition, is now mandamus or certiorari A.R.S. by “special Arizona obtained action.” Rule Country, AND so is not the

FACTS PROCEDURAL HISTORY pending prospective prosecution. Na- This case arises from the — Reina,2 -, See Duro U.S. prosecute tion’s decision to its former (Indian (1990) 109 L.Ed.2d 693 Chairman, MacDonald, Sr., Peter and his may prosecute tribal courts not non-mem “Big resulting for crimes from son tribe); Oliphant Suquamish bers of the transaction, alleged conspir- Boquillas” Tribe, 435 Indian acy between MacDonalds and several (Indian buy non-Indian businessmen to land and 55 L.Ed.2d 209 tribal courts profit. then sell prosecute non-Indians). alleged conspiracy caused the tribe Anticipating testimony need lose several million After the ba- dollars. residing of the several witnesses outside during charges sis for the was revealed Nation, prosecutor the rec- Navajo special testimony Special Investigations before the Navajo the ommended that Tribal Council of the United Senate Subcommittee States At- enact the Uniform Act to Secure the (the Select Committee on Indian Affairs of a tendance Witnesses From Without Subcommittee), Navajo placed the Nation Proceedings (Navajo in State Criminal Uni- on Chairman MacDonald administrative Act). provision, form The codified at appointed special prosecutor and a to leave 1970-1974, duly Navajo Trib.Code was §§ investigate and then conduct the criminal September in 1989.3 to enacted Pursuant proceedings. Act, Navajo Judge Yazzie of the Uniform testimony be- Tracy during was named the Rock District of the Window Court in- fore the as one of those Subcommittee seeking Navajo Nation issued certificates Big Boquillas in volved the transaction. compel Tracy of oth- the attendance and Special in Ac- Navajo Brief of the Nation Maricopa County er at the named residents Proceeding in tion the 2. Big Boquillas trial. allegations, Tracy from these does Aside 27,1990, holding August On after a hear- dispute principal is “a the fact that he matter, superior the an Arizona on Co., Inc., Tracy in in Oil & Gas Tracy signed compelling judge court orders optioned Boquil- February Big the ... appear in the and others to as witnesses $26,250,- in Northern Arizona las Ranch Big Boquillas judge The found that 8,1987 trial. July Ranch on 000 and then sold the or $33,400,000.” Navajo Pe- the Nation a “state” “territo- Navajo Nation for the Act, the ry” the of Uniform Special Action at tition recip- a Navajo Nation had enacted that the special prosecutor the In October Act, provision of the Uniform rocal complaints three multi-count criminal filed Nation are Navajo courts of the Navajo against District the MacDonalds meaning of “courts of record” within complaints concerns Court. One of these held, Act. Arizona court The Navajo Big Boquillas transaction. The therefore, jurisdiction to order that it had jurisdiction to not have District Court does testify Arizona resident to before Navajo prosecute non-members of proceed- District Court in criminal in Indian tribe, crimes committed even for (1) necessity, showing materiality Although Congress suspended of the enforce juris- pending of September compel who outside its until witnesses reside ment Duro Congress testify pro- of bills introduced resolution at a criminal diction to attend juris recognize permanently the inherent investigation; ceeding prosecutorial aor Indians courts over non-member state, diction on require a witness from within (see Appropriations pt. of Defense De in another application of a of record court (1990)), No. 104 Stat. Pub.L. provi- reciprocal has enacted dispostition is not of this issue ultimate sion, or testify of that state in the courts Tracy, as a non-In case because relevant to this adopted been territory. Act has The Uniform dian, criminal to the tribal court’s is not Columbia, states, Puer- fifty the District all Tribe, Suquamish jurisdiction. Oliphant Rico, Virgin The Islands. and the the Arizona version from Uniform Act differs Nation only in that it enumerates substantially iden- Act is Uniform 3. The a state. constitutes its of what definition companion Arizona’s Uniform Act. tical to provisions 1970(2). court, Trib.Code the Uniform Act enable Na- DISCUSSION ings brought against a member vajo tribe. Testimony Materiality Tracy’s A. sought special action relief Tracy then declined to appeals. The court court argues he be a cannot majority panel accept jurisdiction, a given his necessary and material witness may be finding that against privilege intention to invoke whose considered state superior self-incrimination. Act: by the Uniform courts are covered correctly Tracy’s held disagreed. He judge might not have [Wjhile Navajo nation A testimony necessary wit and material. within those intended to be included been byAct circumvent the Uniform ness cannot recognized under which would be entities claiming privilege his intent to assert the originally Act when Uniform actually posed in questions аre before the underlying rationale of adopted, proceeding privilege to which the will provide mutuality was to Schreuder, 712 P.2d jurisdictions pertain. See State the various access between prosecu- country (witness’s to facilitate (Utah 1985) in claimed regard, a cases. In this tion of criminal priv the fifth amendment tention invoke the Na- majority of this court considers requesting ilege in court is not a the provide those vajo Tribal Courts to now finding testimony the not ground for recognized by safeguards procedures and material). privilege is a matter be states, including con- of other the courts conducting the trial. ruled on the court protection against self-incrimi- stitutional Pitman, 26 201 N.Y.S.2d In re Misc.2d statutory privilege and the associ- nation (where (N.Y.Gen.Sess.1960) attorney/accountant/client ated with appear compelledto York witness was New communication. prosecution, ques Jersey criminal in New Order, 1990. October privilege against his self-in tions about special action in this Tracy then filed a to be would have determined crimination court, seeking quash superior court’s the court, Jersey New the New York the presented following orders. He the issues order). issuing generally See court for consideration: our Court, Superior Ariz.App. Thoresen v. moving papers 1. that Whether (1969)(fifth 461 P.2d presented superior Nation privilege prevent does not ask amendment judge court were defective. incriminating questions, ing potentially a Tracy 2. can be considered Whether ques in advance of it cannot claimed witness,” “necessary pur- and material for actually propounded). tions light his poses testify the Nava- intent to refuse to before subpoe issuing The role of the court jo Court. ‍‌‌​​​​‌​​‌‌‌‌​​‌​​‌​​​​‌‌​​​‌​‌​‌​‌​​​‌​‌​​‌‌‌​​‍District only testimony that the na is to determine superior judge court Whether witness, given, if would be material of the ruling is a erred in Nation proceedings. necessary to the territory state or hearing 13-4092(B) (“If at a A. R.S. § Uniform Act. the witness is mate judge determines that Tracy peti- and the other Whether necessary, he shall issue a ... rial hardship under face undue A.R.S. summons____ tioners hearing such any 13-4092(B) they privi- in that claim will facie evidence of prima certificate shall recognized by the leges will not be therein.”). According stated all the facts District and hence will risk Court necessary and material wit a ly, they “waive those being jailed unless intention to invoke despite his stated ness rights.” against privilege self-incrimination. his question superior We find no basis pa- finding moving that the judge’s Scope Within Nation B. Is the presented. ad- adequately We pers were Act? Arizona’s Uniform remaining issues. three dress the provides appeals “territory” Arizona’s Uniform Act concluded that the term judge may appear direct the witness tribes, did not include Indian we undertake proceeding in a criminal another state thorough analysis of statute and case law judge of a court of record in state to determine whether provision its laws has made territory constitutes a commanding persons within that state to Uniform Act. testify

attend and in this state certifies prosecution ... that there is a criminal pending in such court ... that a 1. There is no Fixed Ter- [and] Definition of person being within this state is a materi ritory prosecution____ al witness in such Interpretations Territory a. Various 13-4092(A) added). (emphasis A.R.S. § the and record4 of A.R.S. California Court of States.” reads as follows: In bia. United States and the District of Colum- “State” includes wise In this superior only definitional People ^[*] requires: court thus far to consider whether 13-4091(2). Thus, article, Nation is a “any territory ^[*] v. court’s order turns on whether District Superior section of the unless the context other- ^[*] Appeal any territory territory ^[*] became the first of the United is a Uniform Act ^[*] (Jans), validity court of for ^[*] pur- the Lane definition for People (1909) (Puerto 468, 475-76, tive, which had no for Lane, pointed by gressional nized territories States.” include “any Arizona’s Uniform Act defines state to purposes (1890) (Oklahoma territory” ex rel. judicial “any territory Tracy argues law 29 S.Ct. of federal criminal Kopel Bingham, 211 organized branch, president. See, Rico is a operating pursuant comprehends purposes having 190, v. “Indian was not a executive, 192, territory of extradition governor 53 L.Ed. 286 the United only orga- Territory,” e.g., In re language statute); legisla- to con- under L.Ed. U.S. ap- criminal). fugitive poses Cal.App.3d of the Uniform Act. 224 1405, (1990), Cal.Rptr. 274 586 review de- Bingham-Lane definition territo- (Nov. 28, 1990). In nied a well-reasoned ry encompasses only organized territories opinion purpose poli- that examined the and power Congress that derive their from and cy jurisdictional the behind statute and the given is but one definition courts have relationship between the tribes and the territory. Significantly, this narrow and states, the court concluded the that territory originated technical definition of territory purposes Nation constitutes a for of California’s Uniform Act and that the a history at time this nation’s when the superior court had to summon a United States did not have the same rela- appear California residеnt to as a witness tionship quasi-sovereign with various enti- proceeding a criminal before the ties—i.e., Guam, Islands, Virgin the Cal.Rptr. District Court. Id. 274 at 590. Zone, Canal American Samoa—that it has substantially California’s Uniform Act is today, indeed, and before Puerto Rico at- identical to Arizona’s. Because we must quasi-sovereign tained its status as a com- light construe Arizona’s Uniform Act in of monwealth. however, policies, our own state and be- Lane, Bingham In cases since and Tracy pointed cause to the fact that on interpreted panel territory a different issue a of our term has often been court (see 6), recognize they keep jurisdictions We District Court as a note a infra proceedings, provi- of record. See note on the struc- written record of the have infra Navajo judicial system. general, ture of Court, In appeal Navajo Supreme sion for district courts are courts of record. See State v. courts, powers of and have the inherent all such Pendergrass, 215 Kan. 528 P.2d 1192 i.e., power imprison to fine and for con- (1974) (quoting Higby, State v. 210 Kan. 502 tempt. generally 21 C.J.S. Courts at (1972)). P.2d 740 Navajo courts of the district comparable Nation are of other to those

29 determine whether purposes of the we must broadly to serve more may properly enactment under consideration. considered a terri- statute or Oil, See, e.g., United States v. Standard tory within the of Arizona’s Uni- 661, 662, 558, 560, 30 92 U.S. form Act. (American is a Samoa L.Ed.2d 713 pro territory purposes of for Sherman Legislative Intent b. Co., vision); Puerto Rico Shell 167, 169-70, 58 S.Ct. U.S. Buckeye cites Kriz v. Petroleum (1937) (whether Rico Puerto L.Ed. 235 intent Co. proposition for the givеn de congressional within a act comes legislature at the time of enactment pends upon the character and aim of governs interpretation of the act. 145 act; territory Puerto Rico is not a (1985). According- Ariz. P.2d amendments, reach of sixth and seventh argues the 1937 ly, Tracy because territory pur a considered for but legislature adopted Uni- Arizona Americana Act); poses of Sherman contemplated form Act could have Rico, Kaplus, Inc. v. Puerto 368 F.2d purposes for of the tribes as territories denied, Cir.1966), cert. (3rd Act, interpret cannot now we (1967) (Puerto 977, 17 L.Ed.2d 874 Act to include Nation. We do territory purposes is for of federal Rico argument persuasive. not find this & statute); Securities faith and credit full Kriz, also where the statu- we stated that Co., Capital Exch. Comm’n Growth legisla- tory language not indicate does (Puerto F.Supp. (S.D.N.Y.1974) Rico particular application ture’s intent as to territory purposes the Securities statute, must Act as we “read the Au, 1934); v.Wolfe Exchange Act of whole, matter, looking to its effects (1984) (Micronesia Haw. 686 P.2d 16 reason, Id. consequences, spirit.” is a 1185; see also Calvert 701 P.2d at though Extradition even Criminal Co., 144 Ariz. v. Farmers Ins. state destined for nationhood rather than (1985) (in interpreting P.2d statute Friesecke, 597 F.2d hood); Garcia v. cf. intent, determining legislature’s su- denied, (1st cert. Cir.1979), preme policy court will look to behind stat- 100 S.Ct. 62 L.Ed.2d 306 designed remedy, ute the evil it was and (Puerto territory purposes Rico is not a words, context, subject as well as Longshoremen’s Harbor of the and Work statute). matter, consequences Compensation ers’ U.S.C. 901- §§ 950).6 adopted by Arizona’s Uniform Act was legislature as the 1937 without indication cited, From it is clear thаt the authorities prospective scope. Leg., its H.B. 13th territory interpre- of susceptible the term Ariz.Laws, Reg.Sess., 1st 2. ch. § it not a “fixed and tation because does have However, given of self- the status tribal meaning technical that must be accorded government on Arizona Indian reservations in all circumstances.” Americana it of Therefore, time,7 Rico, Puerto safely at can conclude that 368 F.2d 436. we (15 of Affairs §§ The U.S.C. 7. Commissioner Indian Sherman Anti-Trust of of Indian Offenses 7) authorized creation Courts to proscribes acts in restraint certain prob- basic law and order states, handle reservation among "in trade or commerce operated Bureau of lems. These courts under Territory District added). of the United States or of the regulations very much Indian Affairs and were (emphasis Columbia.” 15 U.S.C. system agency on the connected newly the federal of Indi- created reservations. Courts interpreted in That the term must be record, generally an were not courts of Offenses ques- purposes of the act in accordance with the they initially aspect "inherent nor were an opin- apparent tion is also from developments sovereignty.” These latter Indian took dealing with the District of Columbia. ions place political systems as of the tribes Carter, Compare District Columbia v. evolved, Reorgani- particularly after the Indian (1973) with L.Ed.2d 613 (IRA) passed in to allow zation Act was Palmer, Embry 27 L.Ed. 107 U.S. 2 S.Ct. sovereign governing pow- tribes to assert their (1883). incorporated the IRA ers. Tribes that under statute, legislature the 1937 could not have contem- tion does violence to the text of a duty applicаtion plated whether the Act could or should be our is clear: the cannot be applied to made. But the Uniform Act is not limited Indian tribes. Instead, “organized territories.” “any text of this statute extends to territo Methodology Application c. therefore, ry” enough, and is broad to in Essentially, Tracy argue and the dissent anything commonly clude under legislature that because the did contem- meaning See, e.g., stood of the term. State plate applying the Act to the Na- Korzep, 165 Ariz. P.2d tion, appli- an we not now make such (1990)(“We give words their usual and statutory cation. Under this view of con- commonly meaning understood unless the struction, also unable to Arizona would legislature clearly intended a different recognize Virgin Islands and Puerto meaning.”). passes Rico as territories for of the Uni- test; clearly dictionary fits the defi principles form Act. We believe that sound “geographical nition of a area” of the Unit statutory preclude construction such a politi “under the of a ed States reading of the Uniform Act. Cir- narrow authority.” THIRD cal WEBSTER’S constantly presenting fac- cumstances arise NEW INTERNATIONAL DICTIONARY unforeseen at the tual situations that were (1965). adopted. Consequently, time a statute was acknowledge We also that where a factu- interpretation general remedial stat- application al of a statute considered was fairly only limited to those utes cannot rejected by legislature, the courts specific applications clearly contemplated Again, powerless. such is not the case legislature at the time of enactment. application this statute. The of this with impose impossi- Such a limitation would an organized governments statute to legislatures. ble burden on systems their court could not have gave Congress We note that the framers been foreseen in 1937 and was not con- army power only to raise and maintain an sidered. I, navy. U.S. Const. art. 8. Unless then, deal, enough they prescient Tennyson,8 nei with a text were as We broad application by the ther those who framed nor those who rati to include the advanced appli- contem Nation. deal also fied the Constitution could have We plated language rejected simply include an cation not but not foreseen believe, surely legislature. force. Yet it must. E. We with Mr. air CORWIN, Holmes, THE that in such cases it is a CONSTITUTION Justice AND. rendering n. 172 truth that the final WHAT IT MEANS TODAY and “wholesome course, particular applica of a statute is an act Of laws, separate and evolved into a branch of drafted their own constitutions and Offenses systems. up independent generally Navajo government set court See in The courts of the WILKINSON, & C. FEDERAL IN- D. GETCHES rights judicial branch are courts of record with (2d 1986) (quoting ed. NA- DIAN LAW 384-87 Court, Navajo Supreme appeal of JUDGES TIONAL AMERICANINDIAN COURT ASS’N, hears issues of law raised in the lower COURTS AND THE FUTURE INDIAN developed record. The Nation has 7-13, Getches, (D. 1978)); V. DELO- 88-102 ed. supple extensive code that is bound and LYTLE, INDIANS, RIA, JR. & C. AMERICAN pat Procedural rules of court are mented. (1983). Other AMERICAN JUSTICE 113-116 tribes, after federal rules. Decisions of the terned Navajo, incorpo- such as the chose not to published are in the Na but, rather, strengthen rate under the IRA vajo Reporter, courts use these and the sovereign develop their status and their own opinions precedent. and state serve as Federal system. political of Indian Offenses Courts Tso, authority. persuasive The Process as of recognized generally are now as courts Courts, Decision-Making in Tribal 31 ARIZ.L. sovereignty operate under the residual Tso, 225, (1989); The Tribal Court REV. agencies as of the federal tribes rather than America, (vol. JUDGES’J. 22 in Survives COHEN, government. F. HANDBOOKOF FED- 1986). Spring (1982) (citing LAW Iron ERAL INDIAN Tribe, (8th Oglala F.2d 89 Crow v. Sioux (1842). Cir.1956)). “Locksley Hall” of Indian 8. See Nation’s Court Nation Frankfurter, whether inclusion of Some see judgment.” Reflec Statutes, general Act’s intent. 47 CO consistent with the Reading on is tions (1947). do Nor ven LUM.L.REV. [statutory] construction erable “canons Be May Tribes Considered Territo- anguish judgment. us from save Purposes this Statute? ries for give an air intellec canons of abstract Such Compara- of Statutes a. Consideration compulsion to what is in fact a delicate tual ble to the Uniform concluding complicated pro judgment, determine whether tribes We must first balancing ele cess of subtle elusive sufficiently analogous to territories Frankfurter, are supra, 47 COLUM. ments.” legislature’s general intent fall within agree Mr. L.REV. at 544. We with Justice by includ- the definition of state to broaden Frankfurter that “laws are not abstract quasi-sov- Indian territories. tribes are propositions. They expressions poli are as ereign generis status cy arising specific out of situations and entities sui “domestic, dependent particular attainment of nations” under feder- addressed to the part Georgia, 30 at 533. It is in because law. Nation v. ends.” Id. al Cherokee (5 Pet.) 1, 16-17, (1831). applica 8 L.Ed. 25 legislatures every cannot foresee U.S. nations,” required interpret “foreign judges tion that are Indian tribes arе not believe, apply statutes. us thus do Id. would have prohibition against for- not come within the Thus, construing general in en statute eign being countries deemed territories. purpose, do acted further a remedial we Martinez, Id.; see Eidman v. 184 U.S. specific application not believe a is outside 46 L.Ed. 697 S.Ct. not simply the statute because it was fore (term territory ordinary Congress acts Jones, seen. 607 F.2d United States v. states). foreign does not include Cir.1979), denied, (9th cert. organized 62 L.Ed.2d Similarly, S.Ct. are not Indian tribes (1980); Lines, delegated by powers Eastern Air Inc. Civil whose territories Bd., “agencies” 354 F.2d 510-11 Congress Aeronautics exist as therefore (D.C.Cir.1965); Co., Rather, government. see Shell 302 U.S. at Indian of the federal (that Congress did not powers self-government S.Ct. tribes exercise sovereignty. Puerto Rico mind when the Sher aspect have as an of their inherent enough Wheeler, man Act was enacted is not United States 319-23, opera 1084-86, Puerto Rico from the Act’s exclude 55 L.Ed.2d whether, tion; proper inquiry is had respect, In this foreseen, acquisition judicial power Rico been Puerto its as would exercises Congress have intended to exclude at 1085 a state. Id. at operation). (tribe separate sovereign Puerto Rico from Act’s from federal jeopar- government of double Thus, contrary where there no crime, dy; prosecuting tribal member legislative expression of intent textual exercising federally delegat- tribe was apply must particular application, we sovereign pow- power, territory, like ed but as will statute such manner best state). er, like policies, legislature’s purposes, serve the Sweet, 143 Ariz. goals. v. See State then, Clearly, Indian tribes do (1985); 693 P.2d Cohen orga an the narrow definition of fit within (1978); State, 121 Ariz. 588 P.2d 299 v. Instead, they occupy territory. nized 310, 312, 419 P.2d Berry, v. 101 Ariz. State system. unique our federal status within (statutes (1966) must be construed states in terms The are similar to tribes purpose they are intended to of the view jurisdiction power of self- judicial their they designed accomplish and the evils occurring government matters over remedy). Raymond their territorial boundaries. See Cir.1897). (8th Therefore, Raymond, F. pur- we turn to examine However, exercising powers their of self- Act to pose policy behind the Uniform government, Indian subject government tribes are still territory as a did in its sec- overriding to the plenary authority of Con- grade government, ond under the ordi- gress. Martinez, Santa Clara Pueblo v. nance of territory 1787. Such a passed 49, 56, 1670, 1676, 436 U.S. 98 S.Ct. laws, its own subject approval (1978). L.Ed.2d 106 In this respect, latter congress, and its inhabitants were sub- Indian tribes are analogous to the territo- ject to the constitution and acts of con- States, ries of the United which are also gress. principal The difference consists subject Congress’s plenary power. See in the fact that the Cherokees enact their Hawaii, Inter-Island Steam Nav. Co. v. [subject own laws to some federal re- 306, 314, striction], appoint their own officers and (1938) (Congress L.Ed. 189 has full and pay expenses. This, however, their own complete legislative authority over territo- why is no reason proceed- the laws and ries). ings of the Cherokee territory, so far as political status of Indian tribes has rights them, relates to claimed under analogized been quasi-sov- that of other placed should not upon the same foot- ereign protection entities under the ing as other territories in the Union. It States, United such as Puerto Rico and the is not a foreign, but a domestic territo- Virgin Comment, Islands. generally ry,—a territory originated under Between State and Tribal Law: laws____ Conflicts our constitution and In no Application Full Faith and Credit respect can it be considered foreign Tribes, Legislation to Indian 1981 ARIZ. State or territory, as it is within our 801, 808; Clinton, ST.L.J. Tribal Courts to our laws. Union, and the Federal 26 WILLAMETTE (emphasis added).9 Id. at 103-04 (1990). L.REV. Similarly, various lower federal courts case, tribes, In Indian like Puerto and state courts have deemed Indian tribes Islands, Virgin Rico and the have often to be states or territories within the mean- regarded been purposes as territories for ing of the statutes under statutory of various consideration. enactments. In Unit- See, e.g., Larch, (4th In Coxe, ed States ex re 872 F.2d 66 Mackey rel. for exam- Cir.1989)(Cherokee ple, the United pur- States tribe is a state for held poses that the Cherokee Nation is territory Kidnapping for Parental Preven- purposes Act, of a requiring 1738); federal statute rec- tion 28 U.S.C. Martinez v. ognition appointed Court, of administrators Superior from 152 Ariz. 731 P.2d (18 How.) 100, the territories. 59 U.S. (Indian 15 1244 (Ct.App.1987) reservations are L.Ed. In holding that letters of possessions territories or of the United administration issued the Cherokee Na- States within the of Arizona’s given tion should be full faith and credit in Custody Uniform Child Jurisdiction court, a District of Columbia the Court 8-424); through A.R.S. Red Lake §§ stated: State, Chippewa Band Indians v. respects In some people] (Red Cherokee Minn. 248 N.W.2d 722 [the bear the same relation to the federal Lake territory tribe was a state ‍‌‌​​​​‌​​‌‌‌‌​​‌​​‌​​​​‌‌​​​‌​‌​‌​‌​​​‌​‌​​‌‌‌​​‍or Maсkey’s asserts that definition of terri- had.” 135 U.S. at contrast, 10 S.Ct. at 761. In tory rejected by was the Court’s later decision in Mackey the Court in considered the Lane, disagree. In re Lane. We In the Court given effect to be to letters of administration was faced with the issue of whether the Okla- pursuant issued to tribal law the Cherokee territory, geographical homa Indian area set Nation, body a tribal whose laws were "enacted tribes, aside for several should be considered a council], [by approved by a national their execu- territory of a federal criminal stat- tive, orga- and carried into effect concluding ute. that it should not be con- judiciary.” nized 59 U.S. at 102. The situation territory, sidered a the Court focused on the fact analogous Mackey in the case before us is leg- that the Oklahoma Indian "had no rather than Lane because we consider the effect government body islative ... no ... no estab- given to be to a tribal law enacted organized system government lished or of for Nation, executive, possesses legislative, limits, people the control of the within its as the judicial government. and branches of always territories of the United States have ...

33 case, Morgan, Ex Parte stat- 1883 district court a Minnesota motor vehicle purposes of (D.C.Ark.1883), which held that recog- 20 298 premised policy on to F. ute that was only organized territo registration territory refers to validity automobile nize the of statehood, for and that are destined ries jurisdictions); other licenses issued tribes, sovereigns predating as Forehand, Indian 79 N.C. 232 that v. Whitsett constitution, terri considered cannot be territory for (1878) (Cherokee Nation a 196-97, Brown, 117 Ariz. at 571 governing admis- tories. purposes state statute of registration). at 693-94 . and P.2d probate sion of deed to the court of do not consider whether A of has deemed Indian We majority courts correctly tribes appeals decided that Indian purposes for of the tribes to be territories full for extending application of are not territories federal statute statute, that issue is not faith and credit as to terri- the full faith and credit clause However, States, disagree we now before us.10 possessions of the United tories and res- See, court’s statement that “Indian e.g., Sheppard v. with the U.S.C. (1982); as never been considered ervations have 655 P.2d Sheppard, Idaho meaning of the laws ‘territory’ within Corp., 87 N.M. v. Fin. Jim CIT Servs. States, they are (1975); Buehl, simply of but In re the United 533 P.2d 751 (1976); the home of the Indians.” Id. at 555 P.2d 1334 see also Wash.2d Shannon, (8th contrary P.2d at 694. This statement v. 63 F. Cornells Supreme Cir.1894); Roberts, Court’s decision 59 F. the United States Standley (8th Ice, many Cir.1894); Mackey, well as the decisions Mehlin F. as Cir.1893) (8th (recognizing Indian tribes federal courts and state courts cited lower may be holding that Indian tribes as territories under an earlier version above statute); purposes of cer- the full credit considered territories for faith and Santa addition, Pueblo, 21, 98 In the court seems 436 U.S. at 65 n. tain statutes. Clara courts, many federal cases (“Judgments tribal have overlooked the at n. holding territory may ap- properly jurisdic- within their that the term be as matters tion, plied regarded quasi-sovereign entities that have been in some circum- state- organized full and credit in territories destined for stances as entitled to faith courts.”) (18 (citing Mackey, other hood. 845).

How.) 100; Standley, F. at unique possess political Indian tribes Ford, Inc., status; however, governments are v. Babbitt our tribal Brown appeals opposite ap- comparable states and territories court of took the declining ways, jurisdictionally, res- proach, many faith and Indian accord full governing great more “the credit tribal statute ervations are deal than The case dem- repossessions the reserva- home of Indians.” law automobile Indian con- (Ct.App. may Ariz. onstrates that tribes tion. 117 571 P.2d 689 1977). analysis rejected sidered territories within The court approach is to proper certain statutes. Puerto Rico that term Americana of statute, pur- each in terms its may analyze in 28 be con- U.S.C. 1738 (cid:127) pose policy, to Indi- encompass other than determine whether strued to entities regarded as territories organized territories. Id. at 571 P.2d tribes intent, distinguished panel as Mackey, The court statute’s another at 693. appeals the definition of our court of did Martinez pointing out it dealt with regard territory in a In- with to Arizona’s version different statute. Id. stead, Custody Child Jurisdiction Act. opinion its on an Uniform based concluding statute We faith and credit to tribes note the United States probably Court has never decided this issue and that statute not extend to the that tribes); does disagree Comment, as commentators to whether supra, 1981 ARIZ.ST.L.J. at judgments full laws and should be entitled to (finding position support for Rags faith and credit under the statute. territories, posses- qualify least as tribes dale, Application Full in the Faith Problems sions, purposes of faith and credit stat- full Tribes, N.M.L.REV. 133 and Credit Indian ute). (1977) (discussing problems applying the full

34 305, 303, 1247,

152 Ariz. at 731 P.2d at in proceedings must be treated the same as California, Again using state, we note that a court of another and therefore that analysis, recently this held that probate a will admitted to in tribal in “territory” term the Uniform Act we are in given court should have been effect an- considering includes the Nation. court). cillary proceedings superior in state (Jans), Superior Cal.Rptr. 274 principle comity The is that “the give courts of one state or will Principle Comity b. The Effect of the effect to the judicial laws and decisions of controversy the full over faith and jurisdiction, another state or not as a mat- credit statute is most relevant to cases in obligation, ter of but out of deference and given which the issue is the effect to be Brown, 198, respect.” mutual 117 Ariz. at case, judgments. tribal court In this we 571 P.2d at 695. The Act under Uniform law, judg- deal with a tribal rather than a prem- case present in consideration in Brown correctly ment. As the court principle comity, ised on the not on full noted, irrespective of the effect of the full Jordan, State v. faith and credit. In statute, faith and credit laws are court held that: recognition entitled to on the basis of comi- “The Uniform Act does not extend ty they if in accord otherwise jurisdiction of the courts of this state 198, public policy. Arizona’s 117 Ariz. at limits, beyond its territorial for this is 695; see Fremont Indem. Co. 571 P.2d at power legislature. not within the Comm’n, v. Industrial 339, 345, Ariz. operation of the Uniform Act de- 1089, (1985) (citing Milwau- 697 P.2d pends upon principles comity, Co., County kee M.E. White U.S. efficacy except it has no 268, 272, 229, 231, 56 S.Ct. 80 L.Ed. 220 adoption of the same act another (1935)) (comity may apply doctrine even state.” situations which the full faith and credit inapplicable). clause is 248, 251, 446, (1958) 83 Ariz. 320 P.2d Blount, 35, (quoting State v. Or. consistently Arizona courts have afford denied, 419, (1953), cert. P.2d 347 U.S. recognition proceed ed full to tribal court 962, 711, (1954)), 74 S.Ct. 98 L.Ed. 1105 ings. For of Arizona State Bar denied, 922, cert. 78 S.Ct. 1364 disciplinary proceedings, judgments of the Lesco, accord State v. (1958); 194 Kan. given equivalent Nation courts are denied, (1965), cert. 400 P.2d of other courts. weight judgments U.S. 15 L.Ed.2d 529 MacDonald, (min In re No. SB-91-0001-D Saperstein, (1966); In re N.J.Super. order, 5, 1991) (granting ute March State denied, cert. (App.), 104 A.2d 842 suspension Bar’s motion for interim of Na 99 L.Ed. 688 conspir vajo attorney bribery, convicted of Therefore, principles we of com believe acy, and other misdemeanors ity interpreting militate in favor Court, 57(c), pursuant District to Rule word to include the Na Court, pro Rules of the tion. attorney suspension vides for is con crime). non-felony

victed of a serious Sev Purpose Policy c. The Behind the given recognition eral other cases have proceedings grounds tribal court on the considering In give whether to the Uni- Numkena, Leon v. comity. 142 Ariz. construction, form Act a broad or narrow (di (Ct.App.1984) 689 P.2d we note that the Act’s definitional section by Hopi vorce decree issued tribal court provides that the term state includes binding against was conclusive and chal territory of the United States. A.R.S. lenge superior in state court as a matter of 13-4091(2). statutory A def- term whose comity mutual and out of deference and Estate, is more Lynch’s inition declares what it “includes” re respect); 92 Ariz. meaning by con- (holding susceptible to extension of 377 P.2d than one whose definition de- proceedings Nayajo tribal court struction Court, 163, 172, Superior The word Cal.3d what the term “means.” dares (1982); 302, 306, 185 Cal.Rptr. P.2d enlarge- most is often term “indudes” Stаte, v. Ind.App. Ortez limitation, ment, and a court rather than N.E.2d encompasses that it items find that N. specifically 2A not enumerated. O’Neill, were New York In the United SINGER, STATUTORY SUTHERLAND upheld the constitu- States 47.07, (4th ed. at CONSTRUCTION noting Act, § tionality of the Uniform Rev.). prob- designed practical was to solve A.R.S. chapter preting penal tion followed code. cluded sions within See State P.2d § this state and the We note also be construed It interests; substantial ably and In ing of their terms to 1. To effect our is declared addition, Arizona’s ^[******] purposes provisions of this title are: title, general The within A.R.S. legislature strictly proscribe containing which inexcusably rules but Tramble, ... objects (1985) (rule of strict construc- harm to individual Arizona’s Uniform Act Title 13 are set rule that construed does statutes according legislative policy). stated other state courts reads provides: at the conduct that provisions construction public policy Title general purposes of the Uniform Act. 144 Ariz. promote justice and causes is not consistent to the beginning of the relevant public penal 13-101. law, including or threatens the criminal herein must not fair mean- statute policy set unjustifi- forth apply in inter- part: public provi- forth in- at to determine ine the at Saperstein, Id. between States, hind effectual administration ecution omitted). The lems created S.Ct. Uniform Act was enacted sity adopt the Uniform Act. 359 U.S. spective borders’ motivated without their boundaries. utilizing ment. merely legislation to obtain such witnesses States____ Today forty-two States and proceedings, function unavailability of material Puerto eleemosynary. powers, light 564, 568, 3 L.Ed.2d 585 ... primary jurisdictional of criminal Uniform states to аssist Rico[11] may facilitate criminal altruistic, of the articulated and that the order 104 A.2d by the constitutional division preserve whether machinery Court further purpose of otherwise ” Act, each It and law within their conduct). serves a nature at 846 disinterested we must next exam- 570; “ ‘policy harmony of this impeded justice in aid of this Act is (New Jersey’s self-protective accord In witnesses, by This is not Indian tribes stated: orderly and reciprocal 1, 5-6, states enacting between (citation by the comity neces- enact Act’s from pros- not be- re- re just punish- and deserved impose 6. To by interpreting ter- purposes will be served threatens on those whose conduct ment ritory to include the Nation. peace. public of Indian Tribes d. The Jurisdiction pub- language indicates that Arizona’s This re- historically been interpreting the statutes Indian tribes have policy supports lic distinct, sovereign political enti- garded fur- Title 13 a manner will authority ties, only plenary prosecution. This is criminal ther effective COHEN, F. generally Congress. underlying purpose also an INDIAN FEDERAL reciprocal cooperation HANDBOOK OF requires v. Geor- Worcester (1982). In for the enforcement of LAW 232-33 among jurisdictions articulated gia, John Marshall attendance orders. See Vannier v. Justice Chief witness however, states, Supreme Court assumes dently, applies Again, Uniform Act “any territory.” applies is a a broader basis. Puerto Rico includes that the Uniform which commonwealth, territory; organized evi- principle the foundation for the that tribal tion it has been held that control of the sovereignty people, over its and process extradition is in inherent the tribal protection tribes, and federal com- Nation, sovereignty and jurisdiction: bine to eliminate state may therefore a state not arrest an Indian nation, then, Navajo reservation, The ‍‌‌​​​​‌​​‌‌‌‌​​‌​​‌​​​​‌‌​​​‌​‌​‌​‌​​​‌​‌​​‌‌‌​​‍Cherokee is located on the a distinct but rath community, occupying its territory, own er must seek extradition the Nava described, with accurately boundaries in jo courts. Arizona ex rel. Merrill v. Tur Georgia which the laws of can have no tle, (9th Cir.1969), 413 F.2d 683 cert. de force, Georgia and which the citizens of nied, 1003, 551, 396 U.S. 90 S.Ct. enter, right have no but with the as- (1970); L.Ed.2d 494 Benally see also themselves, sent of the Cherokees inor Marcum, 463, 89 N.M. 553 P.2d 1270 conformity with treaties and with the (1976); (allowing A.R.S. 13-3869 extradi congress. acts of The whole intercourse persons tion of to and from an Indian res between the United States and this na- only gov ervation if both the Indian tribal tion, is, by laws, our constitution and erning body mutually and the state have government in vested of the United entered into an compact, extradition States. providing comply that the state shall with (6 Pet.) 515, 561, (1832). 31 U.S. 8 L.Ed. 483 law). tribal extradition Thus, although may a tribe be within the geographical state, boundaries of a jurisdiction of state courts has tribe is jurisdictionally distinct from the similarly been circumscribed the area of state, and authority the state has no process. civil may State officials not en impose its on laws the reservation.12 force judgments against valid state court residing See, Indians decisions,

In on the reservation. several more recent Marcum, (10th Supreme e.g., United Joe v. States Court has held 621 F.2d 358 that Cir.1980); Roberts, Treaty precludes Begay exten- 167 Ariz. (1990), sion of residing state law to Indians on the 807 P.2d 1111 April rev. denied (state reservation. See McClanahan v. 1991 jurisdiction gar court has no Arizona, State Tax Comm’n 411 U.S. nish a wages, tribal member’s earned on (1973); 93 S.Ct. 36 L.Ed.2d 129 reservation, where does tribal law Trading Warren Post v. Arizona Tax permit garnishment wages); Annis v. Comm’n, 85 S.Ct. 14 Dewey Bank, County F.Supp. (1965); Lee, L.Ed.2d 165 Williams v. 358 (D.S.D.1971) (state officials not en (1959). U.S. 3 L.Ed.2d 251 judgment force by attaching property state McClanahan, In acknowledged the Court located on Cheyenne River Sioux reserva that the state has no juris- civil or criminal tion). This court has held that state offi diction on the reservation absent some af- authority cers lack process to serve delegation by Congress pur- firmative residing Indians on the reservation. Fran suant to tribal consent. 411 177- U.S. at Arizona, cisco v. 113 Ariz. 556 P.2d 1 80, 93 S.Ct. at 1265-67. (1976). comply Automobile dealers must repossessing with tribal law when automo principles In accordance Ford, biles on a reservation. Babbitt jurisdiction Country, limit state over Inc. Indian Tribe, (9th v. Navajo various courts Indian 710 F.2d 587 have invalidated states’ at- Cir.1983), denied, tempts reach residing Indians on the cert. Thus,

reservation. in the area of extradi- S.Ct. 80 L.Ed.2d 180 Arizona, 12. of Indi- amount the state. D. GETCHES & C. WILKIN- considerable jurisdictional SON, TAYLOR, an land (from often leads to conflicts. supra, at 13 T. THE geographical Within Arizona’s boundaries lies STATES AND THEIR INDIAN CITIZENS 176 greatest amount of Indian land of state (1972)). The State of Arizona has entered into within the continental United States. There are cooperative agreements several with the tribes 19,623,000 approximately tribally acres of jurisdictional problems. to alleviate See id. at owned and Ari- allotted individual land within zona; roughly acreage this is 26.99% of the total of the Uniform court’s use foregoing, it From the is obvious jurisdiction, is an compel a Act exercise criminal jurisdiction courts lack Arizona opinions prohibited under the Navajo res- which located on the witness Duro, Oliphant testify in a state court criminal ervation legitima- casts doubt on provisions Duro proceeding without resort cy general. courts Act is Act. of the Uniform only operative where other provision to assist The Uniform Act legislation, as the reciprocal has enacted conducting prose- criminal jurisdictions Therefore, done here. Navajo Nation has may a any prosecution cutions. In there be Navajo recognize the Na- decline to we a material wit- testimony need for the of our we tion for of Uniform beyond subpoena resides the ness who process law undercut the of efficient would power prosecuting of state. Either the the proceedings enforcement in our own state the prosecutor or the defendant utilize rendering peo- of significant number a procure Uniform Act to the attendance of ple potentially witnesses. unavailable as Smith, 87 such a witness. State v. N.J.Su- (App.1965). In per. 208 A.2d 200,000 Navajo nearly fact, testimony is critical to the where the on a reservation that consists of members defense, may defendant’s due violate the acres, million about two- more than fifteen deny process request to his to sum- rights geographical thirds of which is within the in his testify mon an out-of-state witness to of do vio- boundaries Arizona. We would Act. behalf under State legislative purpose to the lence (1979).13 Ariz. P.2d 94 Brady, 122 of prompted adoption the Uniform Act Act, then, a The Uniform serves truth-seek- Navajo to exclude the Nation from were we and is with other function cоnsistent recognition, thereby allowing material wit- to mechanisms that intended assist courts, testifying nesses to evade in our pursuit of a fair trial. Navajo those of Nation. close jurisdictions proximity respective of our fa- Thus, though the purpose the Uni- recognizing valid enactments of the vors prosecu- form Act is to assist in criminal our Navajo Nation that do conflict with tions, compel to attend- proceedings public policy. own ance of a witness under the Uniform Epstein are not criminal nature. v. New Policy e. Other Considerations York, (Fla.App.1963). 157 So.2d Recognizing addition, Act does not ex- Nation as ter- jurisdiction purposes of tend the of the re- ritory for the Uniform Act criminal boundaries; support policy questing jurisdiction beyond Arizona’s its facilitat- rather, depends prosecution. Act’s on ing effective criminal How- effectiveness ever, comity Tracy argues principles reciprocity in the if we allow an court to summon an “Arizona citi- courts where witness Arizona Jordan, appear “foreign Ariz. at to as a witness in a resides. zen” See courts,” be, sovereign’s political at an Arizona court has we will in P.2d 448. Once Tracy appears effect, supporting rights civil violations issued the summons and court, subject Tracy he will our Memorandum the tribal against citizens. compel already Navajo authority As to his tes- Special Action at 2. we have court’s

discussed, timony. Tracy testify despite clearly If refuses to Nation is adequate sys- grant constitutionally immu- jurisdiction within federal separate our inher- foreign Regard- nity, court will have the sovereign. and not tem to cite him for rights violations, Tracy power ent ing the civil claims at Brady, at P.2d 95-96. The constitutional we held that the trial court’s denial 13. In guaran- right compulsory process is request to to a material secure of defendant’s summon United of due teed the sixth amendment out-of-state witness constituted a denial Constitution, 24 of Ari- process it interfered defendant’s States article because with Constitution, right compulsory process and Title have zona constitutional obtaining in her Tribal Code. witnesses favor. Ariz. Herrick, testify his the Na- 5 Nav. about transactions with contempt. Willie v. See (Nav.Sup.Ct.1987) (Navajo his Rptr. vajos poses any inherent violation of power pun- inherent Tracy Nation courts have rights Arizona. civil as a citizen of contempt). We assume that ish for prosecution subject is not to tribal criminal con- Navajo court would be limited to civil jurisdic- Navajo courts have civil and the sanctions, tempt due to its lack of criminal Williams, non-Indians. tion over non-Indians. Oli- jurisdiction over Tracy apparently 79 S.Ct. at 272. phant, 435 U.S. deal- voluntarily entered into consensual MacDonald, Thus, ings Peter Sr. and/or the to the extent that will authority Nation, subject his testimo- which renders court, an exercise of the court’s this will be prosecution ny material a valid tribal discussion jurisdiction. Oliphant’s civil addition, members, and, in indi- one of its inability regarding the of a tribal court possi- he could have foreseen the cates that criminally prosecute a non-Indian is there- bility that he would become Tracy’s In- fore irrelevant to situation. jurisdiction of the tribal court.14 civil statements of stead we must focus on the Further, declining recognize the by to Supreme regard- the Unitеd States Court purposes our Uniform Navajo Nation for of courts. jurisdiction civil of tribal impinge Na- we would on consistently upheld Supreme Court has powers self-government by under- tion’s of jurisdiction over civil cases tribal courts’ ability prosecute to cutting the tribe’s rights involving personal property Wheeler, 435 U.S. at offender. tribal and non-Indians. Santa both Indians 322, (stating right at 1085 that 98 S.Ct. 65, Pueblo, 436 at 98 S.Ct. at U.S. Clara self-government possessed by internal recognition 1680-81. In that tribes’ right pre- “includes the to Indian tribes jurisdiction has not been exercise civil action, tribe members and applicable scribe laws to by constrained federal Court Oliphant limita- those laws criminal sanc- has declined to extend to enforce jurisdiction. tions”). tions to the realm of tribal civil The decisions of the United States Farmers Union Ins. Co. v. Crow consistently supported National Supreme Court have 854-55, Indians, 845, 105 Tribe 471 U.S. government’s long-standing pol- federal 2447, 2452-53, L.Ed.2d 818 85 encouraging self-government. icy of tribal LaPlante, In Ins. v. Iowa Mut. Co. Ins., 14, at 107 S.Ct. at Iowa Mut. 480 U.S. Supreme Court stated: (citing Three Tribes Wold Affiliated play courts a vital role tribal Tribal 476 U.S. 106 S.Ct. Engineering, govern- the Federal self-government, and (1986); 2305, 2313, 90 L.Ed.2d 881 Merrion encouraged their consistently ment has 130, Tribe, U.S. Apache v. Jicarilla jur- Although the criminal development. L.Ed.2d n. 138 n. 102 S.Ct. subject to of the tribal courts is isdiction (1982); Tribe Apache Mountain White limitation, their civil federal substantial Bracker, and n. 143-44 similarly restricted. is not jurisdiction n. 100 S.Ct. 971, 975-76, 9, 14-15, 107 S.Ct. Williams, U.S. (1980); 358 U.S. at L.Ed.2d 665 omitted). (1987) (citations L.Ed.2d 270-71). the Califor- As 79 S.Ct. at Superior Court appeals court noted in summoning Tracy nia We do believe (Jans): District Court appear before who enter con- and lower "the activities of nonmembers

14. The United States or its mem- relationships the tribe consistently with held that volun- sensual courts have federal contracts, bers, dealing, dealings commercial a tribe or its tary, consensual Ford, arrangements”); Babbitt leases or other a non-Indian can render members (tribal See, appropriately exer- e.g., jurisdiction. Mon- 710 F.2d at 593 tribal court’s civil States, non-Indian automo- jurisdiction over cised civil United tana v. on the (1981) ("Indian repossessed automobile who bile dealer 67 L.Ed.2d law, reservation, even tribal in violation of sovereign power to exer- inherent tribes retain into off was entered with Indian jurisdiction where contract over non- forms of civil cise some Indians”; reservation). may regulate particular the tribes against privilege self-incrimina- encouraged to inter- amendment [E]ach alleges Tracy “subject he is the of a gover- concern tion. pret matters which grand jury investigation in pending federal in a manner which fosters self-de- nance right apparently related recognizing of Phoenix” termination. leading Tracy to this case. Memo- request the attend- events tribal courts Thus, Special at witnesses, Action recognize we their randum ance of real Tracy argues, he faces a threat proceed- such criminal right to conduct Consequently, Tracy as- power compel ings. deny To them the self-incrimination. state constitutional reducing serted his federal and we risk their criminal witnesses against during they privileges self-incrimination proceedings a farce or sham. If proceedings in con- necessary depositions and material wit- other cannot force Big Boquillas сase they pro- nection with the civil appear nesses to must either Maricopa inadequate in the evidence filed ceed face Tracy ability County Superior Essentially, deprived prosecute Court. or be criminals____ arguments under fifth If Na- two his certain we barred advances First, irrespective of claim. nations from the communi- amendment tive American rec- Nation cannot jurisdictions reciprocally the fact ty of him, another, criminally prosecute Tracy ognize one we would undermine claims testimony as his a witness will incriminate their self-determination. any prospective him for federal omitted).15 (citations Cal.Rptr. second, prosecution. And claims case au- We conclude that substantial using Navajo the Nation is the Uni- that methodology statutory thority, proper improper advantage to form Act obtain an construction, goals by policy the articulated in the civil case. legislature, principles comity, the objectives together specific with the under- Privilege Against 1. The Self-Incrimi- Act, require us lying Arizona’s Uniform all Navajo as to Applied nation the “any territory,” to read the term as used through 13-4096, in- to A.R.S. §§ that fifth contends the clude the Nation. Such a construc- privilege against self-incrimina amendment the text of statute tion belies neither the Indian apply does not tribes and tion legislature’s intent. nor immunity provision that Code, Navajo does not Trib.Code § Privilege Hardship and C. Undue constitutionally adequate immunity provide Against Self-Incrimination compelled give in a witness who is Having Nation is decided that criminating testimony. Historically, were Indian tribes not sub petition- we must whether the examine ject Rights to the Bill of and other constitu hardship if sum- ers would face undue limiting the federal and guarantees tional Navajo District Court. moned before the governments. Mayes, In Talton state so, 13-4092(B), If under A.R.S. that fifth Supreme Court held compel attend- not be invoked could jury right grand was not to a amendment petitioners. ance of the against prosecution to a applicable powers “the suffer hard- of its members because Tracy claims he will undue one enjoyed by testify, self-government the Cher in that he will be forced to local ship contempt, prior existed Constitu without a consti- okee nation under threat of powers] grant immunity, and therefore tutionally adequate tion” “[these upon by fifth the Fifth Amendment.” required operated to forfeit his thus will be 6) seriously See, e.g., regard- and would be supra, in note Trib.Code § discussion right compulsory pro- courts had no means to use undermined a defendant’s jur- right witnesses outside their in his favor. This to summon material cess to obtain witnesses (1 Rights guaranteed by the Bill of isdiction. 986, 989, Although primary purpose holding provide pro L.Ed. 196 was the ICRA was to Indians with Taitón’s arbitrary tection from action their tribal subsequently extended various other governments, protections of the act ex provisions, providing the ba- constitutional “any person” subject juris tend to to tribal sis for the Court’s statement diction, in which the courts have read to separate Clara Pueblo that Santa “[a]s See, e.g., Dry clude non-Indians. Creek Constitution, sovereigns pre-existing the States, Lodge, Inc. v. United 515 F.2d historically regarded tribes have been (10th Cir.1975); Nakai, Dodge v. pro- unconstrained those Constitutional (D.C.Ariz.1968)(noting F.Suрp. that specifically framed visions as limitations legislative history “any Indi indicates authority.” federal or state atU.S. language changed “any person” an” was at 1675-76. provision persons so that would cover all however, recognized, The Talton Court jurisdiction). to tribal Congress plenary authority to lim specifically imposes The ICRA on the it, modify, powers or eliminate the of local privilege fifth tribes amendment self-government otherwise tribes self-incrimination, against stating in rele- possess. 163 U.S. at 16 S.Ct. at 989. part vant that “no Indian tribe in exercis- power, Congress In accordance with this ing powers self-government shall ... Rights Act enacted the 1968 Indian Civil compel any person criminal case to (the ICRA), imposes on the tribes against ‍‌‌​​​​‌​​‌‌‌‌​​‌​​‌​​​​‌‌​​​‌​‌​‌​‌​​​‌​‌​​‌‌‌​​‍be a witness himself.” 25 U.S.C. restrictions similar to those contained in 1302(4). 1302(4) language in section Rights Bill fourteenth virtually the fifth identical to that of amendment. 25 U.S.C. 1301to 1303 §§ amendment. (1983 pur Supp.). & 1990 The articulated however, Tracy argues, privilege pose eventually became the of the bill that against by the self-incrimination offered ICRA was: provides protection of ICRA inferior to that protect from individual Indians arbi- [t]o the United States and Arizona Constitu- trary unjust govern- and actions of tribal disagree. tions. We It is true that certain accomplished by placing This is ments. provisions mirror those of the ICRA do not certain limitations on an Indian tribe been of the federal constitution and have self-govern- powers exercise of its differently interpreted somewhat from ment. These limitations are the same counterparts.16 their federal On the other imposed as those on the Government of hand, provisions clearly that of the ICRA by States the United States United language provisions mirror the federal by judi- and on the States Constitution intent, prohibition against and such as the interpretation. cial seizure, unreasonable search and have been (Dec. and S.Rep. Cong. interpreted 90th 1st Sess. under the federal standard No. added). generally identical to their 1967) (emphasis are held (9th Cir.1976) (terms "equal process” example, equal protection provision "due 16. For protection guarantees equal protection” [the "the its ICRA are construed as used in the laws,” historical, rather than of “the laws.” Santa governmental regard tribe’s] "with due Pueblo, 436 U.S. at 63 n. 98 S.Ct. at tribe,” Clara and such values of an Indian and cultural 1302(8) (empha (quoting § 1679 n. 14 25 U.S.C. always given meaning as "terms are not same Pueblo)). recognition in Santa Clara sis they represent United come to under the have protection equal construction of the a strict Constitution”); Howlett v. Salish and States significant work a interference clause could Tribes, (9th Cir.1976) Kootenai 529 F.2d tradition, federal tribal custom and (when equal protection application of federal provision courts have declined construe impair significantly cus- tribal standard would See, e.g., the federal standard. Wounded under injury practice is not and individual tom or Tribe, Oglala v. Tribal Council Sioux Head grievous, equal protection of ICRA clause (8th Cir.1975) (equal 507 F.2d 1082-83 however, differently; implemented same in- protection in all re clause of the ICRA is not procedure par- terpretation governs where tribal spects the fourteenth amend coextensive with society). larger American allels that of the Sutton, ment); n. Tom v. 533 F.2d See, e.g., United grant immunity, counterparts. where that witness federal 1090, 1091-92 Clifford, v. 664 F.2d of incrimination.18 States faces a threat Even (fourth Cir.1981) (8th this, amendment stan- purports n. the statute to do we believe analyzing search and sei- dard is used held invalid would be ICRA) officers under of tribal zure conduct judicial Nation’s branch as a violation of Lester, 647 F.2d v. States United (citing against self-incrimination set privilege see also United (8th Cir.1981)); privilege against forth in the ICRA and the (9th Strong, v. 778 F.2d States set forth in the self-incrimination States, Cir.1985); Ortiz-Barraza United A Rights, Bill Trib.Code § Cir.1975). (9th privilege 512 F.2d 1176 provision operate cannot in vio- tribal code appears against to fall self-incrimination ICRA, Navajo courts lation of the and the category. Strong, this latter proper adjudicate forums to are the language duplicates F.2d at 1397. noted in issue. As the clearly could of the federal constitution Pueblo, “[tjribal forums are Santa Clara provide any lesser interpreted to not be rights available to vindicate created protection. ICRA, and 1302 has the substantial and believe, therefore, testify- that when We changing intended effect of the law which court, enjoy Tracy will a feder- obliged apply.” these forums privilege against self-incrimi- ally imposed U.S. at 98 S.Ct. at 1680.19 substantially coextensive nation that privilege. fifth amendment Pre- with the Finally, unlikely even event then, sumably, Nation could not Tracy force to testi courts grant compel Tracy’s testimony without a fy constitutionally adequate without immunity use suffi- of use and derivative grant immunity, adequate he has an the dictates of the fifth cient to meet remedy in federal court the habeas Kastigar v. United amendment. ICRA, corpus provision of the 25 U.S.C. States, provides Section “[t]he L.Ed.2d 212 privilege corpus shall of the writ habeas any person, in a court of the be available to however, argues, provision that a States, legality his United to test Code, Navajo Tribal Trib. by order of an Indian tribe.” A 208(A) (B), detention purports to override Code § corpus whether writ of habeas is available privilege.17 the federal We are unable civil or criminal petitioner is held under language from the statute’s conclude Whitney, Wales process. that it authorizes a court to order structure (1885). 571, testify 5 29 L.Ed. 277 a material witness to without S.Ct. 208(A) applies investigation pro- testified at the MacDonalds’ to The witnesses who 17. Section posses- complaint ceedings provides were that a witness in first trial under a different regarding immunity of- granted material information sion of use and derivative use full may required testify upon issuance by fense 208 the under 17 Trib.Code granting immunity. B, use Sec- (Exhibit of a court order Response to Petition District Court. 208(B) context 6; C, tion covers the same issue in the Hughes para. at Exhibit Order Affidavit 208(B) proceedings. provides Section of court Immunity). Granting and Derivative Use Use may compelling issue an order that the court testimony, notwithstanding privi- the witness’s Further, Navajo Supreme Court has held the 19. self-incrimination, (1) lege against it finds: “if arise, the questions under the ICRA that where necessary pub- testimony may be to the ... precedents of the United court will look to refused, interest; person or is has lic likely circuit for Court and the ninth States refuse, testify on the basis of his ... MacDonald, guidance. v. Peter Nation against privilege Section self-incrimination.” A-CV-36-90, (Nav.Sup.Ct. slip op. at 31 Sr. Nо. 208(B) provide grant explicitly a does not 26, see, 1990); e.g., v. Brow- Sept. provi- immunity, and it is unclear whether (inter- (Nav.Ct.App.1978) Nav.Rptr. neyes, 300 1 208(A) regarding immunity is to sion of use § protection preting equal clause in accordance 208(B) well. § be read into as (the guarantee) Na- amendment with fourteenth Navajo Su- vajo Appeals became addition, Court of Navajo courts In we note that the 18. Tso, 1985; supra, 25 see preme Court in apparently interpret 208 Trib.Code 53). immunity. J. at JUDGES’ full use and derivative use to afford 79, 1609, discharge 84 S.Ct. may be used to a A habeas action L.Ed.2d (1964). The it Court made clear that the contempt is restrained under a witness who reciprocal apply rule would where a federal in by a court excess its order made danger faces of incrimination un- witness jurisdiction. Hudgings, See Ex Parte 77-78, der state law. Id. at 84 S.Ct. at 63 L.Ed. U.S. 39 S.Ct. 1608. (1919). When a witness asserts his against privilege self-incrimination directly point is While there no case privilege, any improperly denies Murphy determine doctrine whether contempt in is proceed- commitment the witness applies in a related federal court jurisdiction testimony of the court the use of immunized excess bar court, given it in tribal we believe does. and is therefore void. Counselman First, although Murphy facts in in- Hitchcock, 142 U.S. only relationship, volved state/federal (1892). L.Ed. phrased the Court the issue under consider- Moreover, corpus provision habeas question broadly, ation more quite expansive. petition ICRA whether: by only er be detained the tribal court need [Ojne jurisdiction within our federal order, custody. not be in and need witness, may compel a whom structure prior effective Even U.S.C. § prosecution it has immunized from under ICRA, date at least one court held laws, give testimony might its review lies where the that federal habeas then be used to convict him of crime petitioner merely been fined against jurisdiction. another such See, court, imprisoned. tribal than rather added). (emphasis at S.Ct. Id. Court, 419 e.g., v. Yakima Tribal Settler discussed, already As Indian tribes we have (9th Cir.1969), denied, F.2d cert. separate jurisdictions within our feder- 26 L.Ed.2d 61 Further, system. trust al federal rela- then, Tracy may use Apparently, government tionship of the United States he corpus remedy whether habeas likelihood with the tribes creates distinct contempt imprisoned fined in a civil ac prosecution of dual tribal and federal tion. arising of crimes from the same courts subpoena by We hold that issuance example, For federal courts have events. court, Tracy’s compelling at- an Arizona “major over enumerated court, creates no undue tendance that occur on the reservation un- crimes” regard hardship Tracy to his consti- 1153; however, der 18 U.S.C. tribal against privilege tutional self-incrimination. prosecute included of- courts lesser arising of the same event. See fenses out Compelled Testimony The Use of Wheeler, 435 U.S. at 98 S.Ct. at 1090. Subsequent Prosecution Federal strong testi- likelihood that view Tracy raises the further issue mony prosecution in a could given testimony given before a that immunized prosecution, later used a federal may similarly recognized not be court tribal court seems unthinkable that federal inapplica- proceeding. Obviously, Murphy in a court find the doctrine federal Cоngress imposed the grant immunity expressly jurisdiction may not to ble after one on the privilege against proceed self-incrimination for of a related a witness However, tribes the ICRA. ing in jurisdiction. in another Commission, the Murphy v. that Indian eighth has held circuit Waterfront Supreme Court held that “a state witness testify un- may compelled to witnesses be may compelled give testimony to grand not be in a immunity federal grant der incriminating may might though they under federal jury proceeding even compelled testimony law unless its in their tribal court. prosecution later face (8th in Cir. any by Visitor, be used manner Long fruits cannot In re 523 F.2d 1975). Murphy doc- a crimi court federal officials in connection with believed ICRA ex- prosecution apply him.” because the against nal 378 U.S. trine would Essentially, intervening petitioners.20 protects Indians from self-incrimi- pressly Id. at 447. nation. an Arizona petitioners argue these subpoenas should decline to issue reject Tracy’s arguments We therefore exception in hardship the undue based on compelled testify not be that he should 13-4092(B) A.R.S. because testimony might used later be because him in Ari- against might recognize federal court. not District Court attorney-client statutory privileges zona Testimony Civil Pro- 3. The Use in relationships. and accountant-client ceedings Quite privileges simply, professional Na Tracy argues jurisdiction requesting a matter for the are improp tion’s use of the Uniform is ad appropriately rule on and are not in testimony his for use attempt gain er issuing sub to the state court dressed not Boquillas civil case. do Big We Jury In re Grand poena. See California privilege against self-incrimi agree. The (Md. Investigation, 471 A.2d applies only where the witness is nation cert. denied sub nom. Rees App.1984), criminal danger facing liability. There Angeles equivalent privilege no to refuse to testi County, Los WIGMORE, civil liability. fy to avoid (1984) (Maryland 81 L.Ed.2d 346 (McNaughten at 331 EVIDENCE § subpoenaed testify in California witness Kates, States v. rev.1961); United he under the Uniform Act could claim (E.D.Pa.1976); see, e.g., Ex F.Supp. hardship undue on be would suffer based Butler, (Tex. Parte 522 S.W.2d testify regarding forced to in California 1975) (the might that answer fact privileged Maryland’s Press matters under liability to civil did not constitute witness Law, as that law had no extraterrito Shield asserting against ground privilege self- rial application). incrimination). professional privileges are Because the Thus, proscription against there is no mandate, any not based on constitutional using compelled testimony immunized appropri- of each the laws against proceeding. a witness a civil addition, ately vary. the testimonial Cappetto, United States 502 F.2d denied, (7th Cir.1974), privileges have been held contravene cert. 420 U.S. public principle 95 S.Ct. 43 L.Ed.2d that “the fundamental (testimony given by party in a civil case evidence," they right every man's immunity may used grant of under a strictly therefore construed case, although may against him in that against weighed policy other considera- any proceeding). not be used in criminal States, tions. Trammel v. United Na impropriety no We find L.Ed.2d 186 Act in con adoption of the Uniform tion’s prosecutions of nection with the multicount Thus, not consider whether we need the MacDonalds. recognize Nation courts of Hardship and the Professional D. Undue privi- attorney-client or accountant-client Privilege Claims privileges exist Arizona.21 leges as those petitioners face do not believe We re the issues

Finally, we address having Dis- by hardship undue lating professional privilege raised governed Bar are petitioners have mate- It asserted that these promul- professional as that positions ethics give as same code due to their rial evidence In re parties allegedly gated by Bar Association. lawyers in- the American and accountants (Nav.Sup.Ct.1972). Navajo Rptr. Deschinny, 1 Big Boquillas the transaction. volved in Thus, recognizes ethical Navajo the Nation the attorney-client rela- governing however, the observe, Navajo constraints that the Nation 21. We Navajo appears also tionship. Nation Navajo The requires attorneys of the to be members Rule attorney-client privilege in recognize the they appear before the Nation Bar before Navajo of Evidence. Rules attorneys the Nation Navajo 13 of Nation. The of the courts One, privi- Judge, of their of Division Arizona Court rule on the merits trict Court testimony Appeals, designated in time the was to sit his lege arguments at the sought. stead. MOELLER, Justice, dissenting.

CONCLUSION respectfully majority’s I dissent from the “territory,” term We conclude that the holding Navajo that the Nation is a “state” fixed, Act, has no used in the Uniform the of the Uniform Act. In instead, subject, meaning but is immutable view, only question my the that needs to be Although legislature interpretation. the in this case is: Did the Arizona addressed specific application contemplate not the did Legislature Navajo to include the intend us, Act to the faсts before Uniform in its definition of “state” when it Nation proper question the is whether such parties Act? enacted the Uniform The application appropriate given the text of case, appeals, court of and this statute, this the policies by articulated the the the statutes, agree that the answer is “no.” court all legislature in that and other public policy of the state. Review Nevertheless, majority concludes body and the relevant of law these factors Navajo that the Nation should now be add- may be considered a indicates that a tribe Act considered ed to the Uniform to be statutory enact- holding is apparently a “state.” This The ments such as the one now before us. majority’s speculation on the based Arizona courts principle comity, Legislature, today, if asked Arizona applied to enactments and decisions of have Navajo Nation in the Act. include the courts, Navajo and its also fa- Nation majority’s speculation is cor- Whether the Act in such a interpreting the Uniform vors wholly point, rect is beside because Interpreting the Act to manner. body legislature only proper is the to con- furthers the Navajo include the Nation also adopt amendments to its statutes. sider and interests of both Arizona law enforcement constitutions, Statutes, easily unlike Nation, thereby fulfilling any time. legislature amendable impair objectives, the Act’s and does fifty-four years Arizona enact- In the since petitioners rights of the the constitutional Act, legislature has not ed the Uniform hardship. undue or cause them (or any seen fit to add the hold, thеrefore, that the term “terri- We nation) Act. Indian other tribe or Act, in A.R.S. tory,” as used did not see fit The Nation itself encompasses §§ it did so adopt the Act until when in- petitioner Nation. solely in this case. to use properly summoned as here were tervenors Act, recog- adopting Navajo Nation proceedings witnesses criminal material argument fallacy present nized the of its The su- District Court. before in the by name by expressly including itself juris- not exceed his perior judge did the Uni- obviously recognizing that issuing diction or abuse his discretion it. embrace form Act would not otherwise the Uniform Act. subpoenas under statutory construc- This case is one of accepted jurisdiction, we Having previously resolved properly tion. It should deny relief. now language meaning of the applying plain Respondents shall entitled to claim opin- my majority, of the statute. The provided by our rules. See their costs as one involv- ion, treating case as errs in 21, Ariz.R.Civ.App.P., 17B A.R.S. Rule involving as one ing comity, rather than majority statutory construction. C.J., GORDON, D. and SARAH this jurisdiction of accepted states that we GRANT, Judge, concur. Chief “of is one the issue special action because question impression and involves CORCORAN, J., first participate did not sepa- and the comity our state decision; between Ariz. Const. pursuant to rate, sovereign' jurisdiction GRANT, Chief SARAH D. art.

45 intended, 1032, statute, 25, goes otherwise no con- Nation,” 810 P.2d at been at word, case, recorded no we deal with a tract or matter how to “In this state: 34, explicit, judicial could saved from tink- law, judgment,” than a rather ering. fact is we deal at 1041. The that 810 P.2d only deal with a tribal law. We with no Court, Kilpatriсk Superior v. 105 Ariz. tribal law If we were to look to state law. 18, (1970). 422, 466 P.2d 27 should, guidance, perhaps we we Judge opinion Grant’s recent in Chief immediately that Na- see the Roberts, P.2d Begay v. Ariz. not consider itself “state” tion itself does (App.1990), contains an excellent re- meaning of the Act as enacted within the leading of case irrefuta- view the law the Legislature. by the Arizona the conclusion that Nation ble statute, construing must we now, When sovereign jurisdiction just separate, legislature’s the true intent at

ascertain in Clearly, it was it the statute. Bushnell the time enacted “territory Nation is not “state” or a Court, 309, 311, Ariz. Superior v. accepted in any United States” mean- (1967). That intent is deter- P.2d of those terms. Neither the looking language at the mined any nation Nation nor other Indian tribe or language plain If and un- itself, statute. in in is mentioned the Uniform Act meaning, leading only ambiguous, one any juris- any version enacted in meaning. Marquez v. Act, we must follow diction, any CAMERON, Justice, court, concurring. the Act should determine whether one, some, amended to include should be I concur in Moeller’s dissent. Justice all, na- or none of the Indian tribes and tions. the in- frankly

I am unable to discern ruling by ma- scope today’s tended na- jority. There are hundreds of Indian the territorial con- tions and tribes within of the fines of the United States. Some 810 P.2d 1053 language suggest that all majority’s EASTER, Plaintiff-Appellant, James D. Indian nations or tribes the United of the are to be deemed “territories States Act. of the United States” Mary Percy, Oscar L. PERCY and Jeanne See, contend- e.g., at 810 P.2d at wife; Engi- husband and John Carollo “any extends to territo-

ing that the statute neers, entity; business an Arizona John passes Nation ry,” and that Carollo, Doe husband Carollo and Jane clearly fits the dictio- “that test” since “it wife, Defendants-Appellees. ‘geographical area’ of nary definition of a No. 1 89-141. CA-CV the United ‍‌‌​​​​‌​​‌‌‌‌​​‌​​‌​​​​‌‌​​​‌​‌​‌​‌​​​‌​‌​​‌‌‌​​‍States ‘under ” Arizona, Appeals portions Court of political authority.’ Other 1, Department Division C. case-specific to the opinion seem to be opinion cov- Nation. Whether April some, one, hundreds of or all of the ers within the United Indian tribes or nations

States, because it is reject I its rationale to amend stat- province

not the of courts legislature theory that utes on the if asked. would amend them powers and Principles separation constrain this judicial restraint should legislature speak for itself court to let the majority’s tour legislative matters. The Indians, comity, fifth the law of de force of territories, amendment, legislative in- simple fact that tent cannot obscure Legislature did not consider Arizona a state within the Navajo Nation to be adopted the meaning Act when it fact that in can it obscure the Act. Nor years adopting since fifty-four not seen fit to Legislature Arizona Act, although Navajo Nation to the add the opportunity to do so. has had abundant 253, 756 P.2d 350. 157 Ariz. See also my opinion, the trial court order jurisdictional on the should be vacated is not a ground that Arizona “state” within do not address the statute. I therefore arguments alternative advanced several petitioners. notes Co., Rapid Ariz. Harvest legislative history Arizona relative (1960). P.2d generations jurisdic- to the Act. After litigation, astounding tional it is that the dangers of recognized the We have often argues now in state court legislation: judicial it should be considered to be a “state” statutory rule con- The cardinal purposes of It is even a state statute. ascertain the struction is to accepts astounding majority more legisla- a statute and intent of argument. legislature acted. at the time the ture Commission, 140 Putvain v. Industrial away principles Drifting entirely from (1984); City P.2d 1199 construction, Ariz. majority statutory makes Court, 139 Ariz. Superior Phoenix advantages accruing supposed much (1984). To arrive at 677 P.2d justice if of criminal administration intent, legislative this Court first looks Navajo Nation is added to the ex rel. the words of statute. State to the criminal supposed detriments Mangum, 113 Ariz. Flournoy v. system if we do not add the Nation justice (1976). P.2d 1148 argu- validity But of these to the Act. ments, any, should be determined Co., 145 Ariz. Buckeye Petroleum Kriz v. body to legislature, proper which is the (1985) (em- 374, 377, 701 P.2d legislative added). amendments. consider phasis statutory rule of con- The most basic appropriate were the Even if this court construing legisla- is that struction by the arguments advanced forum for the enlarge the language, courts will not tive majority, the record fails to demonstrate simple English in or- meaning of words show validity. the record does their What to their own der make them conform following Ari- fifty-two years is that for sociological views. peculiar and economic Act, the enactment of zona’s Court, Superior 105 Ariz. Kilpatrick it. no to enact Navajo Nation saw need (1970). 413, 466 P.2d 18 so, only for this case. did so it did When Comm’n, single 113 Ariz. no instance v. Industrial Padilla The record shows history in which 546 P.2d justice Arizona criminal a witness used to obtain Act has been impose liberty not at Courts a state court Navajo Nation for things ought to be from the way their views of legislature, prosecution. must have that’s what simply because

Case Details

Case Name: Tracy v. Superior Court

Court Name: Arizona Supreme Court

Date Published: Apr 23, 1991

Citation: 810 P.2d 1030

Docket Number: CV-90-0407-SA

Court Abbreviation: Ariz.