Sasser v. Beck, 788SC589

• Decision Date: 17 April 1979
• Docket Number: No. 788SC589,788SC589
• Citation: 40 N.C.App. 668,253 S.E.2d 577
• Court: North Carolina Court of Appeals
• Parties: James Graham SASSER, by his guardian ad litem, H. Bruce Hulse v. Sam BECK and wife, Mrs. Sam Beck, t/a the Princess Motel.

Page 577

253 S.E.2d 577

40 N.C.App. 668

James Graham SASSER, by his guardian ad litem, H. Bruce Hulse v. Sam BECK and wife, Mrs. Sam Beck, t/a the Princess Motel.

No. 788SC589.

Court of Appeals of North Carolina.

April 17, 1979.

Duke & Brown, by John E. Duke, and Hulse & Hulse, by Herbert B. Hulse, Goldsboro, for plaintiff appellee.

Smith, Anderson, Blount & Mitchell, by Samuel G. Thompson, Raleigh, and Van Winkle, Buck, Wall, Starnes, Hyde & Davis, by Herbert L. Hyde, Asheville, for defendant appellant.

ARNOLD, Judge.

The question of first impression presented by this appeal is whether the courts of this State have jurisdiction over a member of the Eastern Band of Cherokee Indians in a tort claim by a non-Indian arising from an occurrence on land within the Qualla Boundary.

The history of the Cherokee Indians is set out at length in Eastern Band of Cherokee Indians v. United States, 117 U.S. 288, 6 S.Ct. 718, 29 L.Ed. 880 (1886), and United States v. Wright, 4th Cir., 53 F.2d 300, Cert. den. 285 U.S. 539, 52 S.Ct. 312, 76 L.Ed. 932 (1931). The Cherokee originally occupied the territory that is now North and South Carolina, Georgia, Alabama and Tennessee. When this country was settled by Europeans, England claimed sovereignty over this territory, subject to the possessory right of the Indians over the lands they occupied. By treaties enacted in the period between 1785 and 1835, the possessory right of the Cherokee over North Carolina lands was gradually extinguished. By treaty of 1785, the United States was given the exclusive right to manage all Indian affairs, and the Cherokee Nation was brought under federal jurisdiction. In 1817, the Cherokee by treaty ceded to the federal government certain lands east of the Mississippi and received in exchange land on the Arkansas and White Rivers. Approximately one-third of the Cherokees emigrated to these western lands.

Under the Treaty of New Echota, made in 1835, the remaining Cherokees ceded to the United States all their land east of the Mississippi and agreed to move to the western lands. Many of the eastern Cherokees were reluctant to emigrate, however, and eventually eleven or twelve hundred remained behind. The Supreme Court said in Eastern Band of Cherokee Indians v. United States, supra, that those who remained "ceased to be part of the Cherokee Nation, and henceforth they became citizens of and were subject to the laws of the state in which they resided." Id., 117 U.S. at 303, 6 S.Ct. at 724, 29 L.Ed. at 884.

The United States first recognized the rights of the Indians who had remained in North Carolina by an Act of 1848, establishing a fund for their benefit. The Qualla Boundary lands were purchased partly with money from this fund. In 1866 the North Carolina legislature passed a statute granting the Cherokee permission to remain in the State, and in 1868 Congress provided that the Secretary of the Interior should "take the same supervisory charge of the Eastern or North Carolina Cherokees as of other tribes of Indians." U. S. v. Wright, supra, 53 F.2d at 303. In 1889 the eastern Cherokees were incorporated under the laws of North Carolina, and in 1897 their charter was amended to give the Cherokee limited power of government, with special reference to control of tribal property. The title to the Qualla Boundary lands, which had been held by the Commissioner of Indian Affairs, was conveyed to the corporation but remained subject to the supervision of the Commissioner. This title was conveyed to the United States in trust in 1925.

It is against this historical background that we consider the limited case law dealing with civil jurisdiction over the Eastern Band of Cherokee. Prior to the 1885 Supreme Court decision in Eastern Band of Cherokee Indians v. United States, supra, dicta in two North Carolina cases had indicated that the Cherokee were subject to our civil jurisdiction. In State v. Ta-Cha-Na-Tah, 64 N.C. 614, 615 (1870), a criminal prosecution, the court noted that "(o)n examination of the Treaty of New Echotah, . . . we find, that, Article XII, it was provided, that individuals and families who were averse to moving West of the Mississippi River, might remain, and become citizens of the States where they resided. Our civil laws have been extended over these Indians, at least, ever since 1838: Rev. Code, ch. 50, sec. 16." (This Code section dealt with fraudulent conveyances, creating a statute of frauds requirement for any contract made with an Indian.) In Rollins v. Eastern Band of Cherokee Indians, 87 N.C. 229 (1882), the court held that a federal statute controlled the effect of contracts made with Indians, but noted that the Act of Congress of 1868 which gave the Commissioner of Indian Affairs "the same supervisory charge of the Eastern or North Carolina Cherokees as of other tribes of Indians" gave him authority to establish schools, appoint agents, and organize local government and public administration, "but of course in subordination to the state government." Id. at 242. This view was reaffirmed by the court in 1907 in State v. Wolf, 145 N.C. 441, 444, 59 S.E. 40, 42: "Indians are subject to the general laws of the State, unless specially excepted."

Subsequent to these early North Carolina decisions, United States v. Wright, supra, was decided by the Fourth Circuit Court of Appeals. That court, holding that Congress could exempt Indian lands from taxation, noted in often-quoted dicta Congress' limited authority, and the existence of state jurisdiction over the Eastern Band of Cherokee:

(W)e think there can be no doubt that Congress has the power to legislate for the protection of the Eastern Band of Cherokee Indians and for the regulation of the affairs of the band. It is clear, however, that not every act of Congress with relation to the band would come within the power. . . . (T)he members of the band, by separation from the original tribe, have become subject to the laws of the state of North Carolina; and clearly no act of Congress in their behalf would be valid which interfered with the exercise of the police power of the state. . . . (A) law to be sustained must have relation to the purpose for which the federal government exercises guardianship and protection over a people subject to the laws of one of the states; I. e., It must have reasonable relation to their economic welfare.

Id., 53 F.2d at 307. This language was relied upon by our Supreme Court in finding state jurisdiction in a criminal case. State v. McAlhaney, 220 N.C. 387, 17 S.E.2d 352 (1941).

In 1953, Congress enacted Public Law 280, 28 U.S.C. 1360, giving to five states, not including North Carolina, "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 . . . ." Sec. 7 of this law, now repealed, gave the consent of the United States "to any other State not having jurisdiction with respect to . . . civil causes of action . . . to assume jurisdiction . . . ." North Carolina did not assume jurisdiction under this law, but in 1957 the Fourth Circuit found state tort jurisdiction in a case closely analogous to the one before us. The non-Indian plaintiff in Haile v. Saunooke, 4th Cir., 246 F.2d 293, Cert. den. 355 U.S....