Dollar General and the Racist Foundation of the Supreme Court’s Tribal Jurisdiction Cases

Written by: Bryan Newland

Primary Source : Turtle Talk, September 8, 2015.

It may be difficult for a tribe with a few thousand members to run a justice system on par with a state or the federal government.” Brief of Dollar General Corporation to the Supreme Court (p. 9)

Dollar General Corporation filed its opening brief with the U.S. Supreme Court last week in the case of Dollar General Corporation v. Mississippi Band of Choctaw Indians.

Indian law observers are familiar with the case by now: Dollar General leased a parcel of tribal land from a tribal entity to operate a store on the reservation. The Tribe established a youth employment program in which it placed young tribal members in different locations for job training. The store manager for Dollar General sexually molested a young tribal member during the course of his employment. The family sued Dollar General in Tribal Court under basic vicarious liability theory (which allows plaintiffs to sue an individual’s employer when the individual commits a wrongful act in the course of his employment – like molesting a teenage intern). The family won its lawsuit, and Dollar General challenged the Tribal Court’s authority to even hear the case; losing at every stage in the process.

Now, the Supreme Court has agreed to hear the case – which is usually bad news for Indian tribes (the Bay Mills Indian Community’s recent victory notwithstanding).

This case is a classic “Montana case,” as Indian law attorneys know it. The Montana case involved the Crow Tribe’s efforts to regulate hunting and fishing on its reservation in Montana. The Supreme Court ruled that Indian tribes generally cannot exercise jurisdiction over non-Indians, except where:

  1. The non-Indian has entered into a consensual relationship with the Tribe or its members through commercial dealing, contracts, leases, or other arrangements; or,
  2. Where tribal jurisdiction is necessary to protect the health, safety, welfare, or political integrity of the Tribe.

In this case, Dollar General entered into a contractual relationship with the Mississippi Band of Choctaws through a lease, engaged in commercial dealing on tribally-owned lands, and employed tribal members in its store. One could also argue with a straight face that providing a forum for civil recourse against an entity (vicariously) responsible for a sexual assault is integral to protecting the health, safety, and welfare of the Tribe and its members.

The U.S. Supreme Court has never found an exercise of tribal jurisdiction over non-Indians to be permitted under the two Montana exceptions. Not once in three and a half decades.

Dollar General’s brief recites the Supreme Court’s case law in this area right back to the Court. Its argument can be summed up by the quote at the top of this article: we can’t trust Indian courts because they aren’t as good as non-Indian courts.

That is simply smart lawyering by Dollar General’s attorneys.

The Supreme Court has a particular disdain for tribal governments and tribal courts. This line of cases can be traced back to 1978, when Justice Rehnquist held that Indian tribes gave up their authority to prosecute non-Indians when they submitted to the overriding sovereignty of the United States:

This principle would have been obvious a century ago when most Indian tribes were characterized by a want of fixed laws [and] of competent tribunals of justice. It should be no less obvious today, even though present-day Indian tribal courts embody dramatic advances over their historical antecedents.

Justice Ginsburg carried this principle forward 20 years ago, bemoaning that tribal courts may be “unfamiliar” to non-Indian litigants.  Justice Scalia built upon Justice Ginsburg’s view a decade ago, noting that, while some tribal courts “mirror American courts,” many others still rely upon (gasp) tribal law.

For the past four decades, the Supreme Court has relied on the assumption that courts run by Indians cannot possibly match their state and federal counterparts in the administration of equal justice.

Of course, a quick scan of the headlines will reveal plenty of abuses in state courts: the Ferguson, Missouri Court’s practice of treating defendants like a revenue stream; a Pennsylvania judge accepting cash in exchange for sending juvenile offenders to certain private prisons. The list goes on.

There is a flip side to the Supreme Court’s assumption: tribal courts are okay for Indians, but they are not good enough for non-Indians. At their core, these are racist assumptions.

I grew up on the Bay Mills Indian Reservation. So did my non-Indian wife. My non-Indian father lived on the Reservation for 35 years. He leased land from the Tribe. He lived in the community. He even worked for the tribal government for a spell. He has spent more time living on Indian lands than I have. According to Dollar General, the State of Oklahoma, and Michigan Attorney General Bill Schuette, and prior Supreme Court decisions, our tribal court is good enough for me, but it isn’t good enough for my father.

Under the Montana test, Dollar General should clearly be subject to tribal court jurisdiction: it consented to a relationship with the Tribe, and its employee threatened the health, safety, and welfare of the Tribe and its members. Dollar General had no problem with all of the money benefits it received under the laws of the Mississippi Band of Choctaws; but, now it has a problem with its responsibilities. As the Band’s Supreme Court restated from its earlier precedent:

[The Company] it seems, would like to secure the benefits of doing business on the Reservation without any attendant responsibility. Such an asymmetrical approach by a party would clearly be impermissible in any state or federal situation, and it should be no less so in a tribal situation. Respect and parity cannot be one sided for the state and federal sovereign but against the Tribal sovereign.

Here is to hoping that the U.S. Supreme Court uses this case to cut ties with the racist assumptions it announced so long ago, and enforces the standard it created in the Montana case.

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Bryan Newland
Bryan Newland is a citizen of the Bay Mills Indian Community (Ojibwe) in northern Michigan. He is a partner in the law firm of Fletcher Law, PLLC where he represents tribal clients on issues including the regulation of gaming facilities, negotiation of tribal-state gaming compacts, the fee-to-trust process, and leasing of Indian lands. Bryan also serves as the Chief Judge of the Bay Mills Indian Community Tribal Court and as a member of the Board of Trustees for the Michigan State University College of Law. In 2008, Bryan served as the Michigan Native Vote Coordinator for Barack Obama’s Presidential Campaign, and was a member of the Obama-Biden Presidential Transition Team. From 2009 to 2012, he served as Counselor and then Senior Policy Advisor to the Assistant Secretary of the Interior – Indian Affairs. In that capacity, he helped develop the Obama Administration’s policies on Indian gaming and Indian lands, reforming the Department of the Interior’s policy on reviewing tribal-state gaming compacts. He also led a team that reformed the BIA’s Indian leasing regulations and worked with key officials to help enact the HEARTH Act of 2012.