Porter v. Hall , 34 Ariz. 308 ( 1928 )

I dissent, and my reason for so doing is that the Indians here seeking the right to vote, as well as all other Indians born in the United States, are expressly declared by Act of Congress of June 2, 1924 (U.S. Comp. Stats., Supplement 1925, § 3951aa), to be citizens of the United States. Previous acts of Congress had conferred this status on only certain individuals or classes of Indians, but this last act was general and all-inclusive. Being citizens of the United States and admittedly possessing all the qualifications provided for by our Constitution and laws, as to residence, education, etc., they are entitled to be registered as voters, and to vote, unless they fall within the exceptions of the Constitution and laws worded as follows:

"No person under guardianship, non compos mentis, or insane, shall be qualified to vote at any election . . ." Section 2, art. 7, Constitution.

Or, as it reads in the election laws:

"Idiots, insane persons, and persons non compos mentis or under guardianship." Paragraph 2879, Civil Code 1913.

The prevailing opinion holds that these Indians are under guardianship of the United States, and therefore not entitled to be registered nor to vote. It is true that the decisions of the courts, both federal and state, beginning with Cherokee v.Georgia, 5 Pet. 1, 8 L. Ed. 25, in which the opinion was written by the great Chief Justice MARSHALL, have described the status of the Indian as that of a ward of the United States. In that case it was said:

"Their relation to the United States resembles that of a ward to his guardian."

And this expression, and this form of expression, has been uniformly employed by the courts since then in discussing the status of the Indian. It is not a guardianship, but, as MARSHALL said, it "resembles" a guardianship. The status of guardianship disqualifying one to vote, in my opinion, is one arising under the laws providing for the establishment of that status after a hearing in court. It is not a status that "resembles" guardianship, but legal guardianship, authorized by law.

The Constitution of North Dakota contains the same provisions as ours, and in the case of Swift v. Leach, 45 N.D. 437,178 N.W. 437, the same contention was made as is made here. The court said:

"The provisions of our Constitution relied upon by the appellant, which provide that no person who is under guardianship, non compos mentis, or insane shall be qualified to vote at any election (section 127), has no application to this federal status of the Indian."

This is only a bare statement, unsupported by any reasoning or authority, but some propositions are so plain as to need no amplification, and I am of the opinion that this is the situation here.

It may be that these plaintiffs, and others in their situation, should not, as a matter of public policy, be granted the franchise, since they are not entirely emancipated from federal control, nor amenable while on the reservation to the state laws; but as the laws are now written it seems to me they are entitled to register and to vote.