Jackson County Ex Rel. Child Support Enforcement Agency v. Smoker , 341 N.C. 182 ( 1995 )

459 S.E.2d 789 (1995) 341 N.C. 182

JACKSON COUNTY, By and Through the CHILD SUPPORT ENFORCEMENT AGENCY, ex rel. Doris SMOKER
v.
Owen SMOKER, Jr.

No. 394PA94.

Supreme Court of North Carolina.

July 28, 1995.

Michael F. Easley, Atty. Gen. by T. Byron Smith, Asst. Atty. Gen., and Elizabeth J. Weese and Gerald K. Robbins, Associate Attys. Gen., Raleigh, for plaintiff-appellee.

Haire & Bridgers, P.A. by Ben Oshel Bridgers, and Gary E. Kirby, Sylva, for defendant-appellant.

WEBB, Justice.

This case brings to the Court a question as to the jurisdiction of the District Court, Jackson County, when the Tribal Court has assumed jurisdiction of the subject matter. The issues involved in this case were thoroughly discussed in Jackson Co. v. Swayney, 319 N.C. 52, 352 S.E.2d 413, reh'g denied, 319 N.C. 412, 354 S.E.2d 713, cert. denied, 484 U.S. 826, 108 S. Ct. 93, 98 L. Ed. 2d 54 (1987). In that case, we held that the District Court of Jackson County did not have jurisdiction to determine the paternity of a child because this is of special interest to tribal governance. We also held in Swayney that the district court had concurrent jurisdiction with the Tribal Court for actions to recover for AFDC payments. We held that the tribe's interest in self government is not significantly affected by this concurrent jurisdiction.

The only distinction between the action in Swayney to recover for AFDC payments and the action in this case is that in Swayney, no prior action for the same claim had been filed in the Tribal Court. In this case, a claim for child support had been filed in the Tribal Court, and that court had retained jurisdiction. The question posed by this appeal is whether it is an infringement on tribal sovereignty for a district court to take jurisdiction of a case the subject of which had been retained by the Tribal Court. We hold that it is an unlawful infringement.

The Cherokee Indians have an interest in making their own laws and enforcing them. Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959). This interest would be undermined if the Tribal Court were deprived of jurisdiction of a case after it had assumed it. We hold that it would have been an unlawful infringement on the Cherokee tribe had the district court taken jurisdiction of this case.

The plaintiff argues that it is subrogated to the claim Mrs. Smoker had for support, N.C.G.S. § 110-137 (1991), and that it is the real party in interest. Settle v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983). This being so, says the plaintiff, its claim is separate from any claim Mrs. Smoker may have, and it does not infringe on the governance of the tribe for the State to pursue its claim independently of Mrs. Smoker's claim. The claim of the plaintiff may be separate from any claim of Mrs. Smoker, but the claim is based on the defendant's duty to support his children. The Tribal Court has retained jurisdiction over claims based on this duty, and the plaintiff must litigate in the Tribal Court.

The plaintiff also argues that if we should hold the district court is without jurisdiction, there will not be an adequate forum for the recovery of AFDC payments. It argues at length that the Tribal Court is not an adequate forum and that if it cannot use the district court to recover for AFDC payments, the AFDC program may be lost. The record does not support this argument. The Tribal Court is available for actions to collect AFDC payments. There is nothing in the record to show there has been any difficulty in recovering for AFDC payments in the Tribal Court. We cannot presume that the Tribal Court will not properly enforce the law.

For the reasons stated in this opinion, we reverse the Court of Appeals and remand to that court for further remand to the District Court, Jackson County, for the reinstatement of its order.

REVERSED AND REMANDED.

ORR, J., did not participate in the consideration or decision of this case.