Opposition Brief — Jackson County ex rel. Child Support Enforcement Agency v. Swayney

gs Supreme Court, U.S,

No. 86-1978 FILED

UG % a

SUPREME COURT OF THE UNITED STATES Cire

October Term 1987

JACKSON COUNTY BY AND THROUGH

ITS CHILD SUPPORT ENFORCEMENT

AGENCY Ex rel. ANNETTE JACKSON,

Petitioner,

Y x

JOHN WESLEY SWAYNEY,

Respondent.

On Petition For A Writ Of Certiorari

To The North Carolina Supreme Court

RESPONDENT'S BRIEF IN OPPOSITION

Jeanette Wolfley

Counsel of Record

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Attorney for Respondent

August 1987

No. 86-1978

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1987

JACKSON COUNTY BY AND THROUGH

ITS CHILD SUPPORT ENFORCEMENT

AGENCY Ex rel. ANNETTE JACKSON,

Petitioner,

Vv «

JOHN WESLEY SWAYNEY,

Respondent.

On Petition For A Writ Of Certiorari

To The North Carolina Supreme Court

RESPONDENT'S BRIEF IN OPPOSITION

Jeanette Wolfley

Counsel of Record

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Attorney for Respondent

August 1987

QUESTION PRESENTED

Whether a state court has jurisdiction

over a paternity action where the putative

father, the mother, and the child are

enrolled members of the Eastern Band of

Cherokee Indians and reside on the Tribe's

reservation, and where the Tribe asserts

jurisdiction over such actions pursuant to

a comprehensive Tribal Code.

(i)

TABLE OF CONTENTS

CURBTION PORGENTED. 6.65 c cs kcscecccceses (i)

STATEMENT OF THE GAGE... occ ccc cc cccccscce 1

I. THE STATE COURT DECISIONS OF

NEW MEXICO, NORTH DAKOTA AND

NORTH CAROLINA ARE NOT IN

CONFLICT WITH THE NORTH CAROLINA

DECISION. 2... ccccccccses See beset esbnoes 4

II. THE DECISION BELOW GIVES EFFECT

TO WELL-ESTABLISHED PRINCIPLES

OF TRIBAL SELF-GOVERNMENT........... 10

(ii)

TABLE OF AUTHORITIES

CASES PAGE(S)

Fisher v. District Court,

Cee’ Uclls San Gare oavcbeccuencecs 12, 13

King v. Smith,

Sue Ulu SOP Tamer aas tees 540660404 40 i3

McClanahan v. Arizona State

Tax Comm'n, 411 U.S. 164 (1973)....... 1l

McKenzie County Social

Services Board, S.N.F.,

through Michon Sax as Guardian

Ad Litem and C.F.V.V.G.,

392 N.W.2d 399 (N.D. 1986),

cert. denied, 55 U.S.L.W. 3643

(March 24, 1987) (No. 86-996)....5, 7, 9

Rice v. Olson, 324 U.S.

FOO €2OCGI i bbeee eae cies Uk 13

Santa Clara Pueblo v.

Martinez, 436 U.S. 49 (1978)....... 10-11

State ex rel. Department

of Human Services

v. Jojola, 99 N.M.

500, 660 P.2d 590

(1983), cert. deni ’

464 U.S. 803 (1984).............. ae 6, 7

United States v. Dion,

476 U.S. , 90 L.Ed.2d

FOU CEO) 46:0 6:06. 0%-6 0s hae keine skdéwe cus 15

United States v. Kagama,

Bam Wis STS COORG ck dk avisvicesiiicn 12

United States v. Mazurie,

CLP Use BEG. CHPVES 6 0h 6s weehanikcencee ll

+

(iii)

CASES (continued) PAGE(S)

United States v. Quiver,

241 U.S. 602 (1916)..--eeeeeeererrrrces 12

United States v. Wheeler,

435 U.S. 313 (1978) ..--ceeeerererceces 12

White Mountain Apache

Tribe v. Bracker, 448

U.S. 136 (1980). -ceceeeeseeseerrcrcees 1l

Williams v. Lee, 358

U.S. 217 (1959). cece eee cecees 8, ll, 12

OTHER

45 C.uF.R. §303.5.ccccecccecccceceecees 15

Cherokee Code §110-3...--+++eeeeeereres 2

Cherokee Code §110-17....--+eeeeereeers 2

Cherokee Code §110-5....--+eeeererereres 2

(iv)

STATEMENT OF THE CASE

Respondent John Wesley Swayney is a

citizen of the United States and an

enrolled member of the Eastern Band of

Cherokee Indians. Respondent resides on

the Reservation which is within the State

of North Carolina. The Reservation is

located in portions of Swain, Jackson,

Graham, Cherokee and Haywood Counties.

On April 12, 1982, Petitioner Jackson

County Child Support Enforcement Agency

filed a paternity action in state court to

have respondent declared the father of

Kevin Jackson, and to collect a debt owed

to the state for public assistance, Aid to

Families with Dependent Children (AFDC),

paid for Kevin Jackson's benefit. Annette

Jackson, mother of Kevin Jackson, and Kevin

are enrolled members of the Eastern Band of

Cherokee Indians residing on the

‘

Reservation. Annette Jackson applied for

and received benefits from the Jackson

County Department of Social Services which

is located on the Reservation.

The Cherokee tribal court system was

created by the Cherokee Tribe in July 1980

pursuant to Tribal Resolution. The Tribe

has enacted an ordinance providing for

tribal court jurisdiction over actions to

establish paternity and child support

(§ 110-17; § 110-3 - § 110-5, The Cherokee

Code). Since 1982, Swain, Graham, Cherokee

and Haywood Counties have filed 87 cases in

the Cherokee Tribal Court. Currently there

are 53 cases pending in the Tribal Court.

The Tribal Court collects child support

from Indian fathers and forwards it to the

North Carolina Department of Social

Services. No paternity or child support

cases have been filed in the Cherokee

a

Tribal Court by the Jackson County Child

Support Enforcement Office.

On July 16, 1984, the district court

granted respondent's motion to dismiss

based on lack of subject matter

jurisdiction and lack of personal

jurisdiction. Petitioner appealed to the

Court of Appeals which affirmed the lower

court's finding of lack of subject matter

jurisdiction on the ground that federal law

preempted state court jurisdiction over the

matter. Additionally, the Court of Appeals

reversed the finding of lack of personal

jurisdiction.

Petitioner appealed to the North

Carolina Supreme Court. The Supreme Court

first found that the exercise of state

court jurisdiction over actions to collect

debts owed to the state for public

assistance and to obtain a judgment for

future child support did not infringe on

stu

tribal self-government, even under the

facts of this action. Respondent by

separate petition seeks a writ of

certiorari as to this portion of the North

Carolina Supreme Court decision. However,

the Supreme Court held that the exercise of

state court jurisdiction over paternity

actions unduly infringes on tribal

self-government. The Court remanded the

case to the Court of Appeals. If paternity

is contested, the district court ordered

proceedings stayed pending disposition in

the Cherokee Tribal Court. Petitioner

seeks review of the North Carolina Supreme

Court decision, upholding tribal

jurisdiction over the paternity action.

I. THE STATE COURT DECISIONS OF NEW

MEXICO, NORTH DAKOTA AND NORTH CAROLINA

ARE NOT IN CONFLICT WITH THE NORTH

CAROLINA DECISION

Petitioner argues that the decision

below is in conflict with the results of

wiih

nn

two other state Supreme Court cases: State

x 1. D rtmen f£ Human rvi Vv.

Jojola, 99 k.M. 500, 660 P.2d 590 (1983),

cert. denied, 464 U.S. 803 (1984); McKenzie

n Lé vi Boar N.F

hr h_ Mi rdian Ad Litem an

C.F.V.V.G., 392 N.W.2d 399 (N.D. 1986),

cert. denied, 55 U.S.L.W. 3643 (March 24,

1987) (No. 86-996). In Jojola, the New

Mexico Department of Human Services

instituted a paternity action and

collection of a child support debt against

Jimmy Jojola. Mr. Jojola, the mother and

child were all residents and members of the

Isleta Pueblo. The New Mexico Supreme

Court held that the exercise of state court

jurisdiction over the paternity action did

not infringe on tribal self-government.

The Court reasoned that the mother assigned

her right to child support to the

Department of Human Services,- and thus the

ain

action could be characterized as a

non-Indian versus Indian action. Also, the

court found the cause of action arose

outside the reservation because the mother

applied for public assistance off the

reservation. The Court, however, did not

discuss the tribal interests at stake.

Jojola petitioned for certiorari to

this Court. Jojola v. State ex rel.

Department of Human Services, (June 1983)

(No. 82-2049). During the appeal, the

State of New Mexico filed a Motion to

Dismiss because events subsequent to the

New Mexico Supreme Court decision rendered

the case moot. The State of New Mexico

argued that the State had issued a policy

statement which directed, “that in all such

cases, in which the mother, putative

father, and child are Indians who reside on

the reservation, the paternity action shall

be filed in the Tribal Court of competent

i

jurisdiction. . .. The Department

codified its policy decision to defer to

Indian tribal sovereignty in paternity

determinations such as presented here.”

Motion of Appellee To Dismiss at 4,5,

Jojola v x. rel D rtmen f

Human rvi , (June 1983) (No. 82-2049).

The State dismissed its action in state

court on the grounds that the paternity

issue would be pursued in the Tribal Court

of Isleta. Thus, while the New Mexico

Supreme Court decision is not technically

moot, the State has deferred to tribal

court jurisdiction. Therefore, there is no

conflict with the North Carolina Supreme

Court decision upholding tribal court

jurisdiction over paternity actions.

McKenzie County, 392 N.W. 2d 399,

involved members of the Three Affiliated

Tribes of the Fort Berthold Reservation.

The mother obtained benefits from the North

=

Dakota Department of Social Services for

her child and alleged the father of her

child was V.G. The McKenzie County Board

of Social Services filed suit in state

court to establish paternity and to collect

child support paid to the mother. The

North Dakota Supreme court held that state

court jurisdiction would infringe on tribal

self-government citing Williams v. Lee, 358

U.S. 217 (1959). This decision comports

with the North Carolina decision.

In this case, the North Carolina

Supreme Court found that state court

jurisdiction over a paternity matter

infringed on the right of the Cherokee

Tribe to make laws and be governed by

them. The Supreme Court reviewed the

Jojola case and rejected the New Mexico's

Supreme Court's determination that because

the cause of action arose off the

reservation then the state courts should

a we

have jurisdiction. Instead, the Court

ruled that the basis of suit is a

determination of parentage, not the

location where benefits were obtained.

Accordingly, this is purely an internal

tribal matter which is within the exclusive

jurisdiction of the Tribe.

This case and McKenzie County affirm

the long-standing principle that Indian

tribes have jurisdiction over civil matters

within their boundaries. Like this case

and McKenzie County, the State of New

Mexico has deferred to tribal court

jurisdiction in paternity matter.

Therefore, there is no conflict in the

State courts over which court (tribal or

state) has jurisdiction over paternity

matters. All the results uphold tribal

self-government.

II. THE DECISION BELOW GIVES EFFECT TO

WELL-ESTABLISHED PRINCIPLES OF TRIBAL

SELF-GOVERNMENT

A. A Paternity Action Is An Internal

Matter Governed By Tribal Law

The court below correctly found that a

paternity action is an internal domestic

matter of great significance to the

Cherokee Tribe. One cannot imagine an

issue more basic to the self-government and

determination of a separate people than the

right to establish parentage and the family

relationship. The determination of

paternity is inclusive of membership in the

Cherokee Tribe. As recognized by this

Court, “[a] tribe's right to define its own

membership for tribal purposes has long

been recognized as central to its

existence. .. . [T]he judiciary should

not rush to create causes of action that

would intrude on these delicate matters."

Santa Clara Pueblo v. Martinez, 436 U.S.

nttin

49, 72 n. 32 (1978). Thus, allowing a

paternity action to be filed in state court

would abrogate tribal decisionmaking on

membership, unsettle the Cherokee Tribe's

ability to maintain authority of internal

matters, and disrupt the whole of tribal

government.

It is well settled that on such basic

matters of membership tribal Indians have a

right to make their own laws and be

governed by them. Williams v. Lee, 358

U.S. 217, 223 (1959); McClanahan v, Arizona

State Tax Comm'n, 411 U.S. 164 (1973).

This Court has continued to stress that

“Indian tribes are unique aggregations

possessing attributes of sovereignty over

both their members and their territory,”

White Mountain Apache Tribe v. Bracker, 448

U.S. 136, 142 (1980), quoting United States

v. Mazurie, 419 U.S. 544, 557 (1975).

Indeed, this Court has maintained that

-ll-—

a ee ee

tribal forums have exclusive jurisdiction

over the domestic relations of their

members, United States v. Quiver, 241 U.S.

602 (1916); Fisher v. District Court, 424

U.S. 382 (1976), which includes “the power

of regulating their internal and social

relations,” United States v. Kagama, 118

U.S. 375, 381-82 (1886), cited in United

States v. Wheeler, 435 U.S. 313, 322

(1978).

In Williams v. Lee, 358 U.S. 217, this

Court forbade the exercise of state

jurisdiction where it would undermine the

authority of tribal courts over reservation

affairs and hence would infringe upon the

right of the Indians to govern themselves.

That action involved a non-Indian trader,

who sued an Indian in Arizona state court

to collect for goods sold him on credit at

a reservation trading post. This Court set

forth the test for state court jurisdiction

ate

over causes of action arising in Indian

country with an Indian defendant as:

Essentially, absent governing Acts

of Congress, the question has

always been whether the state

action infringed on the right of

reservation Indians to make their

own laws and be ruled by them.

358 U.S. at 220. The Williams test

reinforces the fact that “[t]he policy of

leaving Indians free from state

jurisdiction is deeply rooted in the

Nation's history." Rice v. Olson, 324 U.S.

786, 789 (1945).

This Court applied the infringement

test in an adoption proceeding, where all

were members of the Northern Cheyenne Tribe

residing on the Reservation and the dispute

arose on the Reservation. Fisher v.

District Court, 424 U.S. 382 (1976). In

Fisher, this Court held that state court

jurisdiction would interfere with tribal

self-government, and stated,

-=t

— —

State-court jurisdiction plainly

would interfere with the powers of

self-government conferred upon the

Northern Cheyenne Tribe and

exercised through the Tribal

Court. It would subject a dispute

arising on the reservation among

reservation Indians to a forum

other than the one they have

established for themselves.

[footnote omitted]. As the

present record illustrates, it

would create a substantial risk of

conflicting adjudications

affecting the custody of the child

and would cause a corresponding

decline in the authority of the

Tribal Court.

424 U.S. at 387-388.

B. The Social Security Act Does Not

Carolina State Courts

The petitioner argues that this case

should be reviewed because there are a

number of federal entitlement programs

which mandate the states to pursue certain

legal actions in state courts and are

silent as to the jurisdiction of these

courts over matters arising on Indian

atée

reservations. The only act in question in

this case is the Social Security Act which

requires the State to comply with the

federal requirements for the AFDC

programs. King v. Smith, 392 U.S. 309

(1968). The court below made no broad

findings which would impact other federal

programs administered by states. The court

correctly found that under 45 C.F.R. §303.5

the state could resort to the Tribal

Court. The decision does not qualify for

review by this Court.

Furthermore, the congressional intent

to authorize the intrusion of state courts

upon the jurisdiction of tribel courts must

be clear and plain. The Social Security

Act, a general federal statute, does not

meet the standard enunciated by this

Court. United States v. Dion, 476 U.S.

, 90 L.Ed.2d 767, 773 (1986).

atten

The petition

should be denied.

August 1987

CONCLUSION

for Writ of Certiorari

Respectfully submitted,

Jeanette Wolfley

Counsel of Record

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Attorney for Respondent

«tie