Tracy v. Superior Court (Navajo Nation)

In Tracy v. Superior Court (Navajo Nation), 168 Ariz. 23, 43-44, 810 P.2d 1030, 1050-51 (1991), the Navajo Nation prosecuted its former Chairman and his son for an alleged conspiracy with several non-Indian businessmen to buy land and then sell it to the Navajo Nation at a profit. Id. at 26, 810 P.2d at 1033. Prior to filing a complaint, a special prosecutor recommended that the Navajo Tribal Council enact the Uniform Act, which the Council did. Id. A tribal court thereafter issued certificates under the Act seeking to compel the attendance of Tracy and other Maricopa County residents to testify at trial. Id. Tracy was a principal in Tracy Oil & Gas Co., which had optioned a ranch in Northern Arizona for $26,250,000, then sold the ranch several months later to the Navajo Nation for $33,400,000. Id. After a Maricopa County Superior Court judge signed orders compelling Tracy and the others to appear in tribal court, they sought special action relief. Id. at 26-27, 810 P.2d at 1033-34. After this court declined to accept jurisdiction, the Arizona Supreme Court granted review to address, among other issues, whether the Navajo Nation is a state or territory within the meaning of the Uniform Act, and whether Tracy and the other petitioners would face hardship under A.R.S. 13-4092(B) because "they intended to claim privileges that will not be recognized by the Navajo District Court and hence will risk being jailed unless they 'waive those rights.'" Id. at 27, 810 P.2d at 1034. The Arizona Supreme Court concluded after extensive analysis that the Navajo Nation is a qualifying "territory" under the Uniform Act. Id. at 27-39, 810 P.2d at 1034-46. The court also addressed Tracy's claim that he would sacrifice his Fifth Amendment privilege against self-incrimination if haled into tribal court because that constitutional provision does not bind Indian tribes. The supreme court reasoned that "a witness cannot circumvent the Uniform Act by claiming his intent to assert the privilege against self-incrimination before the questions are actually posed in the proceeding to which the privilege will pertain." Id. at 27, 810 P.2d at 1034. The court further stated its belief that "when testifying in tribal court, Tracy will enjoy a federally imposed privilege against self-incrimination that is substantially coextensive with the fifth amendment privilege." Id. at 41, 810 P.2d at 1048. Finally, the court addressed the other petitioners' assertion that they (lawyers and accountants to the parties involved in the land transaction) should not be required to testify because "the Navajo District Court might not recognize the Arizona statutory privileges for attorney-client and accountant-client relationships." Id. at 43 & n.20, 810 P.2d at 1050 & n.20.