As hundreds of Native people protested on the front steps of the United States Supreme Court, oral arguments were heard in Dollar General v. Mississippi Band of Choctaw Indians (MBCI), which is arguably one of the most important Indian law cases to go before the high court in half a century.
The company is asking the Court to annul all civil jurisdiction over non-Indians on Indian lands, which has drawn outrage from tribes across the nation who spent decades and billions building their judicial systems and legal codes to address the jurisdictional “black holes” on Indian lands. Native women’s groups, including the National Indian Women’s Resource Center, have protested the case, who say that by removing all jurisdiction over non-Indians will give perpetrators and corporate bad actors an exemption for the crimes they commit on Indian lands.
The case originated on the Choctaw Indian Reservation in Mississippi in 2003 when a 13-year-old boy alleged that he was sexually assaulted by the store’s non-Indian manager, Dale Townsend, according to court documents. After the U.S. Attorney’s office in Jackson declined to press charges, the boy’s parents sued Townsend and the company in tribal court for $2.5 million in actual and punitive damages. Dollar General had previously signed a lease agreement with the tribe in which it had agreed to tribal jurisdiction from any claims arising from its lease.
Both Townsend and Dollar General moved to dismiss the case based on lack of jurisdiction, which was denied by the tribe’s lower court, the MBCI Supreme Court and the 5th Circuit Court of Appeals in New Orleans. In June, however, the high court granted a hearing in the case to determine whether non-Indians can be held civilly liable on Indian lands, which marks the third time in 40 years that the MBCI has gone before the high court in a case involving jurisdiction.
Arguing on behalf of Dollar General, Thomas Goldstein, who is also the publisher of SCOTUSblog, told the justices that a “neutral forum” would not be available or fair to non-Indians in tribal courts since they would be on Indian land, which by definition he claimed was not an environment of their peers.
Additionally, he posited that tort law is so encompassing that, absent broad Congressional consent, it would be near-impossible for tribal courts to fairly adjudicate civil claims. And even if Congress did grant its consent, said Goldstein, “… it would be unconstitutional.”
Immediately, Justice Ruth Bader Ginsburg challenged Goldstein by asking about his distinction as to whether tribes had legislative, but not judicial, authority to adjudicate civil claims, indicating the “ping pong” effect between Congress and the courts that Indian tribes have been forced to contend with in the last 250 years.
Justice Sonia Sotomayor, questioned Goldstein’s premise regarding the structure of the tribal court systems and whether they can be neutral forums, telling Goldstein, “You’re just assuming that the judges are not neutral.”
Justice Stephen Breyer, who has visited several tribal courts systems during his time on the Supreme Court, talked about the fact that tribal court systems deserve respect. “What’s wrong with the tribal courts?” he asked Goldstein. “In state courts you can remove from the state court and you have the choice to adjudicate in federal court if you don’t feel you’ve been treated fairly.”
Goldstein responded by reiterating that the Supreme Court is the “law of the land,” and indicated that tribes had other means to seek remedy to jurisdiction through the language of their contracts with outside corporations in regards to consenting to tribal forum.
Neal Katyal, attorney for the Mississippi Choctaw, argued that Dollar General, by setting up shop on tribal lands, signing a lease with the tribe, doing business with the tribe and agreeing to hire underage interns through the tribe’s Youth Opportunity Program, had, in fact, created a significant consensual relationship with the tribe and that the legal precedents regarding this nexus is the “unbroken rule of this court.”
Justice Anthony Kennedy, visibly angry, challenged Katyal by indicating that an “explicit consensual relationship” in regards to tort claims had not been reached in this case, then characterizing the nation’s Indian tribes as “non-Constitutional entities, whether [the State of] Mississippi or the federal government doesn’t care!” Kennedy was referring to the fact that the State of Mississippi and the United States Solicitor General had both sided with the tribe in this case.
When Goldstein returned to the podium for his final remarks, he reiterated three issues with tribal courts, including improper forum, neutral courts and the “administrability” of civil jurisdiction.
“You just want to cherrypick what sovereignty means,” said Sotomayor. “We don’t dictate to other sovereigns.”
Dollar General represents the 12th case involving Indian tribes that have gone before the Supreme Court since John Roberts became Chief Justice in 2005. The tribes have won only two of those cases.
A decision in the case is expected early next year.