Supreme Court tie reinforces tribal sovereignty in Dollar General case

The case, Dollar General v. Mississippi Band of Choctaw Indians, focused squarely on whether native tribal courts have the power to review civil cases involving the activities of nonmembers on native trust lands.

In a 4-4 tie, the Supreme Court leaves room for non-native members to face their day in tribal courts.

The Dollar General case has been 13 years in the making, in part because the line between federal and tribal court jurisdiction over cases involving non-native members remains unclear.

The manager of a Dollar General store, Dale Townsend, on the Mississippi Choctaw reservation was accused of molesting a 13-year-old Choctaw boy, who worked at the store in 2003.

Sexual assault is far too common on reservations: The Justice Department reported that one in three native women reported rape or attempted rape, which is twice the national average. There is very little data available on sexual abuse that involves native children. Eighty-six percent of sexual assaults are committed by non-native men, like Townsend.

Yet justice for these victims of sexual assaults remains fleeting, in part, because of issues around tribal court jurisdiction. In 1978, the Supreme Court ruling in Oliphant v. Suquamish Indian Tribe prohibited tribal courts from reviewing criminal offenses committed by nonmembers.

In general, pursuing criminal charges for reservation cases is up to the discretion of the United States attorney, who, in this case, did not. In response, the parents filed civil charges against Townsend and Dollar General in tribal court two years later. The company was specifically charged with negligence for hiring, training, and supervising Townsend, and the parents were seeking $2.5 million in damages.

Townsend and Dollar General both immediately filed injunctions to have the charges dismissed on the grounds that tribal court had no jurisdiction. The district court for the Southern District of Mississippi granted the injunction for Townsend in 2008. But the district court denied Dollar General’s request citing that it was “meritless.”

In Montana v. United States in 1981, the Court ruled that native tribes generally do not have inherent sovereignty over nonmembers on their reservations with two exceptions: if nonmembers enter into “consensual relations with the tribe or its members” and if a nonmember’s conduct threatens the tribe’s “political integrity, economic security, or health or welfare.”

Based on Dollar General’s lease, which began in 2000, the Court ruled the retailer had, in fact, consented to tribal jurisdiction.

The lower tribal court, the Choctaw Supreme Court, and the Fifth Circuit Court of Appeals also refused to challenge the Choctaw tribal court’s jurisdiction.

Dollar General’s defense largely rested on whether tribal courts have “inherent sovereignty” over non-tribal members.

According to the company, tribal courts do not. The precedent: the Oliphant case. The Court found that native tribal courts do not have inherent jurisdiction to try nonmembers for criminal offenses, because no treaties with native groups ever intended to give them power without congressional approval. The company argued that civil matters should fall under the same rubric.

The Mississippi Band of Choctaw Indians, however, argued that their inherent sovereignty existed before there was any interaction with the United States. Congress does not grant them inherent sovereignty. Instead, it was incumbent upon Congress to explicitly curtail their sovereignty.

With Dollar General, the Court’s tie helps affirm native groups’ rights to self-determination. This enables federally recognized groups to continue developing their own governmental bodies, and possibly sets a welcome precedent to stop non-native members from exploiting native members, particularly in cases of sexual abuse, by questioning tribal court jurisdiction.