. . . And Justice for All? The Necessity of Native Civil Jurisdiction in Tribal Courts

By: Rachel Bond

In December, the Supreme Court (SCOTUS) heard arguments in Dollar General v. Mississippi Band of Choctaw Indians,[1] a case that could have huge effects on the rights and dignity of Native women all over the country.  Depending on how SCOTUS rules, this case could either help to preserve the dignity of Native women in this nation, or could strip away some of the rights and safety these victims need and deserve.  Dollar General is arguing that Tribal Nations have no civil jurisdiction over non-Natives who commit offenses on Tribal land.[2]  The framework of the arguments and circumstances surrounding the case highlight the many biases Native Americans face.[3]  Now a 4-4 tie is possible to uphold the lower courts’ decision with the death of Justice Antonin Scalia, but unfortunately the Roberts Court is likely to decide against the Tribe. The issue in this case is important, and its impact on women is drastic and cannot be overstated – if the Court takes away Tribes’ civil jurisdiction, Native women would almost never see any sort of justice after being sexually assaulted by non-Native Americans.[4]

This case arises out of a sexual assault case that allegedly occurred in a Dollar General store on Tribal land.[5] Federal prosecutors failed to bring criminal charges.[6]  The boy’s family then sued Dollar General in Tribal court under civil tort law, and Dollar General sued the Tribe in federal district court to stop the suit for lack of subject matter jurisdiction, which is how the case reached SCOTUS.[7]  So far, Dollar General has been unsuccessful in convincing a court that Tribal courts lack civil jurisdiction over non-Natives.[8]  Its case has relied mostly on antiquated notions of Tribal courts and their justice systems.[9]  Not only does Dollar General claim that non-Natives who are “hauled into [T]ribal court” will be subject to an “unwritten set of laws and customs to be determined and applied by the [T]ribe,”[10] it also claims that “Tribal courts . . . are poorly organized and badly run; lack independence from tribal governments; don’t respect constitutional rights; and enforce tribal law, custom, and traditions rather than actual law.”[11]  These arguments are not new – in fact, the state of Georgia made strikingly similar arguments 185 years ago.[12]  “Like the arguments Georgia used to support the forced removal of Cherokee Nation in the 1830s, Dollar General’s arguments are not accurate, nor are they based on a justifiable doctrine or law.”[13]

Tribal courts and justice systems are similar to the overall American justice system in many ways – Congress and the executive have encouraged them to be.[14]  Tribes have succeeded in modernizing and creating justice systems similar to the American one, including the Mississippi Choctaw.[15]

However, one thing Tribes can no longer do is prosecute non-Natives who commit crimes on their land because the Supreme Court has systematically been cutting back tribal jurisdiction since the late 1970s.[16]  SCOTUS handed down Oliphant v. Suquamish Indian Tribe in 1978, ruling that Tribes could no longer exercise criminal jurisdiction over non-Natives.[17]  Since then, SCOTUS has handed down a series of cases that have further cut back on Tribal jurisdiction.[18] Additionally in Montana v. United States, SCOTUS said that “the inherent sovereign powers of an Indian [T]ribe do not extend to the activities of nonmembers of the [T]ribe,” regardless of the location.[19]  Montana did allow for two exceptions: (1) cases arising from “consensual relationships with the [T]ribe or its members,” and (2) cases where non-Natives’ on-reservation “conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”[20]

The exceptions under Montana clearly apply here. The store was present on Tribal land and had a lease on that land, which is clearly a consensual relationship with the Tribe.[21]  Additionally, “sexual misconduct directed at Indian children, one can certainly argue threatens . . . the health or welfare of the [T]ribe.”[22]  Due to the high rates of violence against Native children and women,[23] Tribes’ civil jurisdiction over these crimes is essential to their ability to self-govern and their ability to protect the women and children in the Tribe.[24]

This ability to self-govern and ability to protect women and the Tribe is only part of the reason why Tribes should be able to retain this sort of civil jurisdiction. This kind of civil tort suit is often the only avenue that victims and their families have left to seek justice.[25]  Native women are more likely to be battered, raped, or sexually assaulted than any other population in the United States[26] and Native children suffer rates of trauma 2.5 times higher than the national average.[27]  Additionally, 70% of perpetrators of violence against Native women are non-Natives, and much of the violence is committed on the reservations on which the Native women and children live.[28]  Federal prosecutors then refuse to prosecute these cases 67% of the time.[29]  When federal prosecutors refuse to go forward with a case, Tribes do not have the choice to prosecute the cases themselves.[30]  These civil tort suits are often all that the victims and their families have left as an avenue to seek justice for wrongs committed against them.[31]  To take this jurisdiction away from the Tribes would necessarily take away the opportunity for an entire subset of the population to seek justice.[32]  Without it, Native survivors would rarely see any form of justice for wrongs committed against them.[33]

The Roberts Court has a shaky past with Native Tribes – this is the 12th case involving Tribes to come before SCOTUS since John Roberts became Chief Justice in 2005, and the Court has ruled in favor of the Tribes only twice.[34]  However, the Roberts Court is well known for “enthusiastically insulat[ing] giant companies from meddlesome plaintiffs and juries.”[35]  The recent death of Justice Antonin Scalia may significantly change the outcome of this case, because it could allow a 4-4 tie.  This would allow the 5th Circuit’s decision to be upheld, and at least those Tribes within the 5th Circuit would definitely retain their civil jurisdiction,[36] and the other Circuits would be able to interpret the exceptions under Montana before SCOTUS hears another case regarding Tribal civil jurisdiction.

Due to the rates of violence against Native women, the sheer amount of this violence committed by non-Natives, and the fact that federal prosecutors usually refuse to bring charges, the Roberts Court needs to do the right thing.  Rather than rely on archaic arguments and let Native women and children get abused and assaulted with no accountability for the non-Natives who come onto reservation land to do it, SCOTUS needs to uphold the Tribal courts’ civil jurisdiction over those who commit assaults and other torts on their land.  In the absence of criminal jurisdiction, it is often the only form of justice many women and children will ever see.


[1] Dollar General Corporation v. Mississippi Band of Choctaw Indians, SCOTUSblog (2016), http://www.scotusblog.com/case-files/cases/dollar-general-corporation-v-mississippi-band-of-choctaw-indians/.

[2] Andrew Bard Epstein, Dollar General Takes Its Case Against Indigenous Sovereignty to the Supreme Court, The Nation (Dec. 7, 2015), http://www.thenation.com/article/dollar-general-takes-its-case-against-indigenous-sovereignty-to-the-supreme-court/.

[3] Rebecca Nagle, The US Supreme Court Is About To Consider the Most Potentially Devastating Case For Native Nations, Everyday Feminism Magazine (Dec. 4, 2015), http://everydayfeminism.com/2015/12/dollar-general-native-justice/; Epstein, supra note 2; Garrett Epps, Who Can Tribal Courts Try?, The Atlantic (Dec. 7, 2015), http://www.theatlantic.com/politics/archive/2015/12/who-can-tribal-courts-try/419037/.

[4] Brief for National Indigenous Women’s Resource Center as Amicus Curiae Supporting Respondents, Dollar General Corp. v. Miss. Band of Choctaw Indians, No. 13-1496 at 33, http://www.scotusblog.com/wp-content/uploads/2015/10/13-1496bsacnationalindigenouswomensresourcecenter.pdf; Nagle, supra note 3; Epstein, supra note 2.

[5] Dollar General Corporation v. Mississippi Band of Choctaw Indians, Oyez, https://www.oyez.org/cases/2015/13-1496.

[6] Epstein, supra note 2.

[7] Oyez, supra note 5.

[8] Epstein, supra note 2; Epps, supra note 3.

[9] Epstein, supra note 2; Epps, supra note 3.

[10] Epstein, supra note 2.

[11] Epps, supra note 3.

[12] Nagle, supra note 2 (recounting that the state of Georgia argued 185 years ago that the Cherokee Tribe could not exercise jurisdiction over non-Natives on Tribal land because the Tribe’s laws were not written and its courts were uncivilized and inferior, when in fact the Tribe had a written Constitution and had established its Supreme Court ten years before Georgia had established its own State Supreme Court).

[13] Id.

[14] Epps, supra note 3 (stating that Congress and the executive have long encouraged Tribes to recruit professional judges, train professional staff, write codes, and train lawyers).

[15] Id.

[16] Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); Epps, supra note 3.

[17] Epstein, supra note 2 (stating that the opinion “cast Native Americans as fundamentally lawless and uncivilized, incapable of affording justice to people outside their communities”).

[18] Epps, supra note 3 (Tribes also can no longer adjudicate civil disputes between two non-Tribal members when the dispute arises out of something that happened on Tribal land).

[19] Montana v. United States, 450 U.S. 544 (1981).

[20] Id.

[21] Epps, supra note 3.

[22] Id.

[23] Brief for National Indigenous Women’s Resource Center, supra note 4 at 2; Nagle, supra note 2.

[24] Brief for National Indigenous Women’s Resource Center, supra note 4 at 3.

[25] Id. at 33.

[26] Id. at 2; Nagle, supra note 2 (Native women are 10 times more likely to be murdered, 2.5 times more likely to be raped, 2 times more likely to be stalked, and 60% of them will be victims of domestic violence).

[27] Brief for National Indigenous Women’s Resource Center, supra note 4 at 2.

[28] Nagle, supra note 2.

[29] Epstein, supra note 2.

[30] Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

[31] Brief for National Indigenous Women’s Resource Center, supra note 4 at 33; Epstein, supra note 2.

[32] Brief for National Indigenous Women’s Resource Center, supra note 4 at 33.

[33] Nagle, supra note 2.

[34] Suzette Brewer, The US Supreme Court Hears Arguments in Dollar General Case, Indian Country Today (Dec. 7, 2015), http://indiancountrytodaymedianetwork.com/2015/12/07/us-supreme-court-hears-arguments-dollar-general-case-162677.

[35] Epps, supra note 3.

[36] Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014).