Wildcatt v. Smith

316 S.E.2d 870, 69 N.C. App. 1, 1984 N.C. App. LEXIS 3401

• Court: Court of Appeals of North Carolina
• Decided: June 19, 1984
• Docket: 8330DC773
• Status: Published

Opinions

WELLS, Judge.

This appeal raises for the first time the question of subject matter jurisdiction of our state courts over civil actions between members of the Eastern Band of Cherokees living on the reservation, following the recent creation of a tribal court system by the Eastern Band.¹

It is axiomatic that personal and subject matter jurisdiction are essential prerequisites to entry of a valid court order. It is also beyond dispute that a defendant may challenge a court’s subject matter jurisdiction at any stage of the proceedings, but may not raise the issue of personal jurisdiction for the first time on appeal. In the case at bar, defendant failed to make timely challenges to the personal jurisdiction of the state court in the 1980 default action and the 1983 contempt hearing; thus defendant’s argument that the trial court lacked personal jurisdiction is overruled. Defendant’s contention that the state court lacked subject matter jurisdiction and was thus powerless to enter either the 1980 default judgment or the 1983 contempt order requires more detailed discussion.

The general subject of Indian law is well beyond the scope of this opinion and we confine ourselves to the issue of jurisdiction over civil suits arising on tribal lands. A few well-established principles of law bear repeating at the outset, beginning with the proposition that federal power to regulate Indian affairs is plenary and supreme.² The states generally have only such power over Indian affairs on a reservation as is granted by Congress,³ while the tribes retain powers inherent to a sovereign state, except as qualified and limited by Congress.⁴

To ask what entity possesses subject matter jurisdiction over a cause of action is to inquire about the way the power of governing has been allocated. The answer turns as much upon the history and political structures of our nation as upon legal theory in the area of Indian law, where tribes and the federal and state governments have all exercised varying degrees of sovereignty at different times. We turn therefore to an examination of the history of the relationship between the Eastern Band of the Cherokee and the state and federal governments for insight into the ways decision-making power has been distributed.

A detailed history of the Cherokees of North Carolina is set out in The Cherokee Trust Funds, 117 U.S. 288 (1886), United States v. Wright, 53 F. 2d 300 (4th Cir. 1931) and therefore we will not fully repeat those accounts here. It is sufficient to note that the Cherokee Indians were once one of several dominant Indian tribes occupying what is now North Carolina, South Carolina, Tennessee, Georgia and Alabama and that the tribes were sovereign entities with inherent powers to govern and settle disputes among their members, W. Canby, American Indian Law (1981). Upon the arrival of white settlers, the sovereignty of the tribes diminished, as first the British and then the United States governments asserted ownership of Cherokee lands. Under the Treaty of New Echota of 1835, the Cherokee Nation ceded all lands east of the Mississippi River to the United States and agreed to move west. About 1,200 Cherokees eluded the forced removal, however, and remained in North Carolina, where their rights and status were somewhat uncertain for many years. Following a rather complex series of land transactions, the Cherokee reservation, known as the Qualla Boundary lands, was established in western North Carolina. In 1924, pursuant to an act of Congress, 43 Stat. 376, the United States took title to the Cherokee land, holding those lands in trust for the benefit of the Eastern Band and placing certain restrictions upon alienation and taxation of the land, United States v. Wright, supra. The term of the trust relationship was extended indefinitely by the Indian Reorganization Act of 1934, 48 Stat. 984.

The foregoing brief history of the Eastern Band sufficiently illustrates the drastic changes in the relationship between the Eastern Band and the state and federal governments. Before 1835, the North Carolina Cherokees were members of a separate, sovereign nation with inherent powers of self-government. By the terms of the Treaty of New Echota, the federal government, through its plenary power over Indians, provided that those Cherokees remaining in the state would thereafter be subject to state law. By 1868, the North Carolina Cherokees were accorded state citizenship.

Meanwhile, the Cherokees’ relationship with the federal government continued to evolve as federal policies toward Indians changed. As early as 1868 Congress instructed the Secretary of the Interior to take “the same supervisory charge of the Eastern or North Carolina Cherokees as of other tribes of Indians.”⁵ Later acts of Congress also indicated that the Eastern Band had been accorded full tribal status by the federal government, despite the fact that tribal members were also citizens of North Carolina.⁶

Federal recognition of the Eastern Band as an Indian tribe has at least two major implications for the issue of state jurisdiction: (1) the federal government continues to maintain plenary power over the Eastern Band, a fact which strictly limits extensions of state power, Williams v. Lee, 358 U.S. 217 (1959), S. Sherick, “State Jurisdiction Over Indians As A Subject of Federal Common Law: The Infringement-Preemption Test,” 21 Ariz. L. Rev. 85 (1979), and (2) the Eastern Band, like all recognized Indian tribes, possesses the status of a “domestic dependent nation”⁷ with certain retained inherent sovereign powers, accord, Eastern Band of Cherokee Indians v. Lynch, 632 F. 2d 373 (4th Cir. 1980). These two principles also constitute the test for determining the scope of state court jurisdiction over members of an Indian tribe, referred to by some authorities as the infringement-preemption test.⁸

Under the preemption prong of the test, state power over Indian tribes is determined in light of the federal government’s plenary power over all Indians. State regulations which conflict with federal enactments are void, and even if there is no directly conflicting federal enactment, state action may be barred if Congress has indicated an intent to “occupy the field” and prohibit parallel state action. S. Sherick, supra at 88. See e.g., McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164 (1973).

If there is no applicable federal enactment, the state action must be examined under the infringement prong of the test, to determine if tribal sovereignty has been infringed upon. S. Sherick, supra at 87, F. Cohen, Handbook of Federal Indian Law, at 349-50 (1982).

In applying the infringement-preemption test to the facts before us, we turn first to examine the validity of the July 1980 default judgment. Defendant contends that by 1953 at the very latest, Congress had enacted legislation which preempted the field of Indian law and eliminated state court jurisdiction except as provided by the Act. Defendant contends that Public Law 280, codified at 18 U.S.C. § 1162 (1976 & 1983 Supp.); 28 U.S.C. § 1360 (1976 & 1983 Supp.) provides the exclusive method by which states can assume jurisdiction over Indians residing within their borders. Under the terms of P.L. 280, five states (later six), were automatically granted “jurisdiction over civil causes of action . . . to which Indians are parties which arise in . . . Indian country . . . to the same extent that such State . . . has jurisdiction over other civil causes of action.”⁹ Section seven of the act, which has since been repealed, permitted states other than the five which were ordered to assume jurisdiction, to obtain jurisdiction by legislative action if they so desired. North Carolina was not among the states ordered to assume jurisdiction, nor has our legislature acted to assume jurisdiction under section seven of the act.

In 1968, the Indian Civil Rights Act¹⁰ was enacted, permitting states to assume jurisdiction over civil cases involving Indians and arising in Indian country by consent of the tribe affected. The Eastern Band has never given formal consent to the assumption of state jurisdiction pursuant to the Indian Civil Rights Act, Sasser v. Beck, 40 N.C. App. 668, 253 S.E. 2d 577, disc. rev. denied, 298 N.C. 300, 259 S.E. 2d 915 (1979).

Defendant contends that passage of P.L. 280 and the Indian Civil Rights Act preempted the entire field of state jurisdiction over Indians, and that states which have not acted pursuant to the federal legislation are without jurisdiction over civil cases arising on reservations. The United States Supreme Court, however, has recently recognized that prior, lawfully assumed state jurisdiction over some civil cases involving Indians survived the passage of P.L. 280. In Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, — U.S. —, 52 U.S.L.W. 4647 (1984), the Court noted that “[njothing in the language or legislative history of Pub. L. 280 indicates that it was meant to divest States of pre-existing and otherwise lawfully assumed jurisdiction.”¹¹

Plaintiff, on the other hand, contends that the state obtained jurisdiction over the Eastern Band pursuant to the Treaty of New Echota and that this jurisdiction was not divested by the passage of P.L. 280, the Indian Civil Rights Act, or any other action of Congress. We agree. The purpose¹² of P.L. 280 was to provide law enforcement for reservations which lacked adequate law enforcement and means of dispute settlement. At least through 1980, the members of the Eastern Band were free to avail themselves of the state courts for settlement of their disputes. We do not believe that Congress intended to preempt state court jurisdiction where the Indian tribe had no court system of its own. A rule holding that P.L. 280 was intended to cut off state jurisdiction over civil suits between reservation Indians which had no tribal court system would have had the opposite effect from that intended by Congress, by depriving the tribe of the state court forum, without providing an alternative. Our position is strengthened both by the language of Wold, supra, and by the failure of Congress to enact specific legislation barring assertion of North Carolina jurisdiction despite notice of the operation of state courts in this area for nearly thirty years.¹³

Decisions of the United States Supreme Court which seem to indicate that P.L. 280 and the Indian Civil Rights Act are the sole means by which a state may obtain jurisdiction over civil suits involving Indians are distinguishable on the grounds that none of the decided cases deal with an assertion of jurisdiction by a state pursuant to a treaty, over an Indian tribe without a tribal court system of its own.¹⁴ A contrary rule, while perhaps under a literal interpretation of broadly-worded statutes, would serve neither the congressional purpose behind P.L. 280 nor the ultimate welfare of the members of the Eastern Band, as it would require the invalidation of nearly thirty years of state court judgments voluntarily sought by members of the Tribe. We hold, therefore, that Congress has not preempted the field of state court assumption of subject matter jurisdiction over tribes which are without their own court system.

We turn now to the infringement prong of the test to determine if assertion of state jurisdiction in 1980 unduly infringed upon the Eastern Band’s inherent right of self-government. While the Eastern Band has a great interest in regulating the domestic relations of its members, it does not appear to us that entry of the default judgment unduly infringed upon tribal sovereignty, as the tribe at that time had chosen not to exercise its rights of self-government in the area of dispute resolution. See Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, supra. Defendant’s contention that the Swain County District Court lacked subject matter jurisdiction to enter the 1980 default judgment must therefore be overruled.¹⁵ Accord, Little Horn State Bank v. Stops, 170 Mont. 510, 555 P. 2d 211 (1976), cert. denied, 431 U.S. 924 (1977), see also Sasser v. Beck, supra, affirming the trial court’s jurisdiction over a civil action occurring on the reservation, but failing to employ federal preemption doctrine analysis in reaching its results.¹⁶ F. Cohen, supra at 350.

We now consider whether the state court retained jurisdiction to enforce the default judgment once the tribal court began operation on 28 July 1980. Plaintiff correctly notes that as a general rule, subject matter jurisdiction is determined when the initial complaint is filed, and later events do not deprive the court of jurisdiction. In re Peoples, 296 N.C. 190, 250 S.E. 2d 890 (1978), cert. denied, 442 U.S. 929 (1979), 20 Am. Jur. 2d Courts §§ 142, 148 (1965 & 1983 Supp.). It is also true that while a court loses jurisdiction over a cause after it renders a final decree, it retains jurisdiction to correct or enforce its judgment, Whitmer v. Whitmer, 243 Pa. Super. 462, 365 A. 2d 1316 (1976), cert. denied, 434 U.S. 822 (1977); State ex rel Taylor v. Carey, 74 Mont. 39, 238 P. 597 (1925); 21 CJS Courts § 94 (1940 & 1983 Cum. Supp.). This general rule, however, is insufficient to override application of the infringement-preemption test to this case. Accord Joe v. Marcum, 621 F. 2d 358 (10th Cir. 1980).

We need not reach the issue whether state court jurisdiction was preempted by federal legislation after 28 July 1980, as the question before us may be resolved under the infringement prong of the test. It is clear that any exercise of state power after the creation of the Indian court system would unduly infringe upon the tribe’s asserted right of self-government. Williams v. Lee, supra. Accordingly, we hold that the judgment of the Swain County District Court of 3 May 1983 must be reversed and remanded.

Reversed and remanded.

Judge Becton concurs. Judge JOHNSON concurs in the result.

1 . The Eastern Band had no court system of its own until the present decade, and members were forced to resort to state or federal courts to settle their disputes. By 1979, however, growing activism on the part of members of the Eastern Band, coupled with recognition by the state that it could no longer assert jurisdiction over felonies occurring on Indian reservations in the light of United States v. John, 437 U.S. 634 (1978), led to a request for federal permission to establish a tribal court system. Defendant’s assertion that the North Carolina Attorney General issued a formal opinion withdrawing all state jurisdiction and law enforcement support from the reservation in response to United States v. John, supra, appears mistaken. Federal authorization for the tribal court system was granted in 1979, and the Cherokee Tribal Council responded on 10 July 1980, by enacting legislation creating the court system, and setting 28 July 1980 as the date for commencement of court operations.

2 . United States v. Mazurie, 419 U.S. 544 (1975), S. Sherick, “State Jurisdiction Over Indians As A Subject of Federal Common Law: The Infringement-Preemption Test” 21 Ariz. L. Rev. 85 (1979), F. Cohen, Handbook of Federal Indian Law, 1982.

3 . F. Cohen, supra n. 1, at 259, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

4 . F. Cohen, supra n. 1, at 242, United States v. Wheeler, 435 U.S. 313 (1978).

5 . Act of 27 July 1868, 15 Stat. 228.

6 . See, e.g., Act of 4 June 1924, 43 Stat. 376, authorizing the federal government to hold the Cherokee lands in trust for the benefit of the members of the Eastern Band, thereby establishing the same relationship between the Eastern Band and the federal government as that between the federal government and other recognized tribes; 46 Fed. Reg. 35361, 8 July 1981, including the Eastern Band as among tribal entities which have a government-to-government relationship with the United States. The fact that the Eastern Band is a remnant of a larger group of Indians, that federal supervision over the tribe has not been continuous and that the Treaty of New Echota conferred state citizenship on the Eastern Band does not mean that the state may assume the federal government’s plenary power to deal with Indians, United, States v. John, supra n. 1 (asserting federal plenary power over the Mississippi Choctaw Indians, with a tribal history very similar to that of the Eastern Band).

7 . The term first appeared in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and was apparently coined by Chief Justice Marshall. For a detailed discussion of the retained sovereign powers of Indian tribes, see W. Canby, American Indian Law (1981) and F. Cohen, supra at 229-52.

8 . See S. Sherick, supra. The actual term “preemption” was first used in reference to Indian law in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973), but the notions that federal law can preempt state legislation and that state law might be barred if it infringes upon tribal sovereignty appear in many earlier decisions. See e.g., Williams v. Lee, 358 U.S. 217 (1959).

9 . 28 U.S.C. § 1360(a). States could also assume criminal jurisdiction pursuant to P.L. 280, 18 U.S.C. § 1162.

10 . 25 U.S.C. §§ 1301-1341 (1976 & 1983 Supp.). For a discussion of the Indian Civil Rights Act, see F. Cohen, supra n. 1 at 666-670.

11 . The Court’s language in Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, — U.S. —, 52 U.S.L.W. 4647 (1984), while admittedly dicta, seems to indicate that the passage of P.L. 280 was not meant to eliminate all state jurisdiction acquired outside the provisions of the act. After stating the principle that prior, lawfully assumed state jurisdiction might survive P.L. 280, the Court cautions that exercise of such jurisdiction will be improper where it would unduly infringe upon the tribe’s right of sovereignty. The Court noted that “[a]s a general matter, tribal self-government is not impeded when a State allows an Indian to enter its courts on equal terms with other persons to seek relief against a non-Indian concerning a claim arising in Indian country. The exercise of state jurisdiction is particularly compatible with tribal autonomy when, as here, the suit is brought by the tribe itself and the tribal court lacked jurisdiction over the claim at the time the suit was instituted.”

Judge Johnson’s concurrence in our opinion interprets this language to mean that P.L. 280 preempted prior state jurisdiction over cases in which all parties are Indians, and that only cases involving a non-Indian could have survived passage of P.L. 280. We disagree. The foregoing language is not addressed to the preemptive effect of P.L. 280, but rather, the issue of what surviving state court jurisdiction may be exercised in light of the prohibition against infringement upon tribal authority. The answer must be reached by examining the facts of each case, including the nature of the state jurisdiction sought to be exercised and the degree of tribal autonomy, rather than a sweeping categorization based simply upon the tribal membership of the parties in a lawsuit.

12 . Bryan v. Itasca County, 426 U.S. 373 (1976).

13 . In Washington v. Yakima Indian Nation, 439 U.S. 463 (1979), the Yakima Indian Nation contended that the tribe’s right of self-government, guaranteed by an 1865 federal treaty, must have continued after 1953 as it was not expressly abrogated by the terms of P.L. 280. The Court rejected the tribe’s argument, noting that “[although we have stated that the intention to abrogate or modify a treaty is not to be lightly imputed . . . this rule of construction must be applied sensibly. ... To accept the Tribe’s position would be to hold that Congress could not pass a jurisdictional law of general applicability to Indian country unless in so doing it itemized all potentially conflicting treaty rights that it wished to affect. This we decline to do. The intent to abrogate inconsistent treaty rights is clear enough from the express terms of Pub. L. 280.” Id. at 478 n. 22.

We find nothing inconsistent with our holding today in the foregoing language of Yakima Nation. Applying P.L. 280’s preemptive effect to the Yakima Nation only transferred dispute settlement from the tribe to the state courts. Application of P.L. 280 to the Eastern Band of the Cherokee before 28 July 1980 however would have left tribal members without a forum for civil cases arising between Indians on the reservation. Such a result cannot constitute a “sensible construction” of the effect of P.L. 280 upon the Treaty of New Echota.

14 . For instance, in Kennerly v. District Court of Montana, 400 U.S. 423 (1971), a storeowner sued members of the Blackfeet Indian tribe on a debt arising from the Indians’ purchase of groceries from a reservation store. The Supreme Court of Montana held that the state courts possessed subject matter jurisdiction, pursuant to a 1967 tribal law which provided for concurrent state and tribal jurisdiction over actions wherein the defendant was a member of the tribe. The United States Supreme Court reversed, on the ground that Montana had not acted to assume jurisdiction pursuant to P.L. 280. The Court noted that P.L. 280 made no provision for assumption of state jurisdiction by consent of the tribe, and that the Indian Civil Rights Act of 1968 permitted state jurisdiction with consent of the tribe only if consent was given by a majority vote of all members of the tribe.

In Fisher v. District Court, 424 U.S. 382 (1976), members of the Northern Cheyenne Tribe sought to adopt another member of the tribe who lived on the reservation. A tribal ordinance passed in 1966 purported to provide that the tribe had exclusive jurisdiction over cases involving adoptions of tribal members. The Montana Supreme Court disagreed, however, and held that the state court had subject matter jurisdiction over tribal adoption proceedings prior to 1935, when the Northern Cheyenne Tribal court and government was set up pursuant to federal law. The Montana court held that the unilateral tribal action could not divest the state court of jurisdiction. On appeal, the United States Supreme Court reversed, holding that the assertion of state court jurisdiction over tribal adoptions would unduly infringe upon tribal sovereignty. The Court held that even if Montana had possessed jurisdiction prior to 1935, its jurisdiction was preempted by the 1935 federal statute which permitted the Northern Cheyenne Tribe to set up its government and courts.

15 . It is unclear whether the Court of Indian Offenses is required by federal law to accord full faith and credit to the valid 1980 state court judgment against defendant. Normally, under the Full Faith and Credit Clause of the United States Constitution, Art. IV § 1, states must recognize the laws and proceedings of sister states and the proper judgments of their courts. Congress has extended the application of the Full Faith and Credit Clause to United States territories and possessions by statute, but courts are divided over the question whether the doctrine applies to Indian tribes. See F. Cohen, supra at 384-85. Even in cases in which a court is not required to accord full faith and credit to the judgment of another court, the court may recognize the judgment under principles of comity, Id.

16 . Sasser v. Beck, 40 N.C. App. 668, 253 S.E. 2d 577, disc. rev. denied, 298 N.C. 300, 259 S.E. 2d 915 (1979), appears to be the only other decision of our appellate courts dealing with the question of state court authority to hear civil cases arising on the reservation and involving a member of the Eastern Band, prior to establishment of the tribal court system. We do not decide today the impact of establishment of tribal courts upon the authority of state courts to hear criminal cases involving members of the Eastern Band. State courts asserted jurisdiction over criminal cases involving Indians prior to the establishment of the Indian courts in the following cases: State v. McAlhaney, 220 N.C. 387, 17 S.E. 2d 352 (1941); State v. Adams, 213 N.C. 243, 195 S.E. 822 (1938); State v. Wolf, 145 N.C. 441, 59 S.E. 40 (1907); State v. Ta-Cha-Na-Tah, 64 N.C. 614 (1870); State v. Dugan, 52 N.C. App. 136, 277 S.E. 2d 842, appeal dismissed, 303 N.C. 711, 283 S.E. 2d 137 (1981).