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Right of Native Americans to Vote in Arizona

Posted on : February 9, 2017, By:  Christopher Hildebrand
Right of Native Americans to Vote in Arizona

Right of Native Americans to Vote in Arizona

The Arizona constitution lists certain categories of persons who are not permitted to vote. Those disqualified to vote are felons and persons under guardianship, non-compos mentis or insane.

An Arizona case held that American Indians fell within the category “persons under guardianship.” For that reason, Native Americans were not permitted to vote.

In Harrison v. Laveen, 196 P.2d 456 (1948), the Arizona Supreme Court reconsidered the issue.

Case Facts

Two members of the Mohave-Apache Indian Tribe, Mr. Harrison and Mr. Austin, tried to register to vote in Maricopa County, Arizona. The country recorder, Roger G. Laveen, refused to permit them to register.

Harrison and Austin sought a writ of mandamus ordering Laveen to register them. Laveen moved to dismiss, under the case of Porter v. Hall, 271 P. 411, 412. The court granted this motion and entered judgment against Harrison and Austin. They appealed and the matter came before the Arizona Supreme Court.

Arizona Law Disenfranchises Those under Guardianship

Both the Arizona Constitution and state statutes deny the right to vote to several categories of people. They include convicted persons “under guardianship.”

The Porter case involved facts similar to the facts presented here. In that case, the Arizona Supreme Court determined that reservation Indians were “persons under guardianship.” It ruled that they were not permitted to vote.

The Porter court cited numerous decisions of the United States Supreme Court that referred to Indians as “wards” of the government. The Supreme Court noted that this “ward” terminology relied on in those cases was first used as an analogy. Supreme Court Chief Justice Marshall described Indian tribes as having a relationship to the United States which “resembles that of a ward to his guardian.” In later cases, judges began talking about Indians as wards without using that figurative sense.

The Arizona Supreme Court here, however, reviewed the proceedings of the Arizona Constitutional Convention. It found nothing there to suggest that the framers intended “persons under guardianship” to apply to Indians. The Court found that it’s ruling in the Porter case was wrong in construing the phrase “under guardianship” in that way.

Guardianship Means Legal Guardianship

The Court here determined that the term “person under guardianship” in the state Constitution was intended to mean judicially-established guardianships. It ruled that “guardianship” required a disability established on an individual basis. It cannot be established on a tribal basis.

Person Under Guardianship in Arizona.

Person Under Guardianship in Arizona.

The Court found that the government/Indian relationship didn’t have the essential features of a legal guardianship. It listed some of these features:

(1) that the guardian has custody of the person of the ward;

(2) that the ward is under a duty to live where the guardian tells him to live;

(3) that the ward may not make contracts respecting his property;

(4) that the guardian may also decide what company the ward may keep. The Court concluded that reservation Indians were not “under guardianship” under the language of Arizona laws.

Disposition

The Arizona Supreme Court reversed the judgment below. It remanded the case for further proceedings consistent with this opinion.

Contact our experienced Arizona Estate Planning Attorneys at (480)947-4339.