The Law on Tribal Court Jurisdiction over Non-Members Stands with Supreme Court’s Tied Vote in Dollar General Corp. v. Mississippi Band of Choctaw Indians

June 23, 2016

John Doe, a teenage member of the Mississippi Band of Choctaw Indians, was working as an intern at a Dollar General store on the Tribe’s Reservation when he was sexually molested by the manager of the store. Doe sued Dollar General and Dale Townsend, the Dollar General employee who molested Doe, in the Mississippi Choctaw Tribal Court. Doe alleged that Dollar General was negligent in the hiring and supervision of Townsend. Dollar General argued that it was not subject to the jurisdiction of the Tribal Court.

The jurisdiction of tribal courts over non-members is governed by Montana v. United States, 450 U.S. 544 (1981), which permits tribes to exercise civil jurisdiction over nonmembers engaged in consensual relationships with the tribe or its members on tribal land if there is a nexus between the nonmember’s relationship with the tribe or tribal members and the claims pled. Montana also permits the exercise of jurisdiction over nonmembers with respect to “conduct [that] threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”¹ Applying these principles, the Fifth Circuit Court of Appeals rejected Dollar General’s arguments that the Tribal Court lacked jurisdiction. The Fifth Circuit concluded that black-letter law allowed the Tribal Court to adjudicate a dispute between a tribal member and non-member that implicated the Tribe’s self-governance rights (in this case, regulation of working conditions on the Reservation) and which arose from the non-member’s activities on the Reservation. The Supreme Court granted Dollar General’s petition for certiorari to consider the question whether tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members. Given the absence of a circuit split, and the fact that the Fifth Circuit decision was a straightforward application of the Court’s precedent, the grant of certiorari was alarming; it was widely feared that the Court might significantly restrict the scope of tribal court jurisdiction.

Dollar General urged the Court to do just that. It argued that a tribal court could exercise jurisdiction over a non-member only in very narrow circumstances—effectively asking the Court to impose a requirement that tribal court jurisdiction over a non-member required express consent to the specific exercise of jurisdiction. Notwithstanding the fact that Dollar General acknowledged the competence and fairness of the Mississippi Choctaw Tribal Courts, its arguments were based largely on an attack on the fundamental competence and fairness of tribal courts, and the fear that a hypothetical tribal court might apply tribal law to non-members even where the non-member could not access or become knowledgeable of that law. Dollar General went so far as to suggest that tribal court jurisdiction over non-members was incompatible with the sovereignty of the United States—a point squarely refuted by the Solicitor General’s position in the case that the Mississippi Choctaw Tribal Court’s exercise of jurisdiction was lawful under Montana.

In response, the Tribe argued that, under Montana, the right of tribes to self-governance includes the right to adjudicate civil disputes arising from voluntary consensual relationships between tribes and their members, on the one hand, and nonmembers, on the other. The case was squarely within the tribe’s adjudicative jurisdiction under Montana. It involved a business established on tribal land pursuant to an agreement with the Tribe. The business operated under a license issued by the Tribe. The business agreed to take on tribal-member interns, and an employee of the business sexually assaulted one of the interns. The Tribe argued that if this case did not fall under the Montana exceptions, it is hard to imagine one that would. Tribal governance would be severely weakened if tribes were not able to regulate, or their courts to adjudicate disputes involving, businesses operating on their land or employing tribal members. Furthermore, the Tribe pointed out that Dollar General had consented to tribal jurisdiction. Its lease of tribal land included choice-of-law and forum-selection clauses expressly consenting to Tribal jurisdiction for lease-related disputes. In response to Dollar General’s argument that tribal law is somehow unknowable (even though many tribes, including the Mississippi Choctaw, publish their tribal laws on the internet), the Tribe pointed out that sexual assault is an actionable tort in every jurisdiction in the country—and Dollar General therefore could not be surprised that it is a tort under Mississippi Choctaw law.

The Supreme Court affirmed the Fifth Circuit decision with a 4-4 vote and no written opinion. This is a big win for the Mississippi Band of Choctaw Indians and especially for John Doe. This also is a victory generally for Indian tribes and their right to govern their territories—even if qualified by the implications of a tied vote. The Fifth Circuit opinion stands, and Indian tribes remain secure in their right to regulate and adjudicate important public safety matters on their reservations. This is especially important for cases, like the one here, involving sexual assault—crimes that are committed far too often in Indian country with no criminal or civil consequences. It is troubling, however, that in a case involving a sophisticated tribal court system and a public safety issue of utmost interest to the Tribe, four justices were persuaded by Dollar General’s fear-based arguments against tribal court jurisdiction. Moreover, the 4-4 vote means that the decision is not precedential, and the issue may come before the Court again in the future. If it does, the views of the yet-to-be-appointed ninth justice may be decisive on this important issue.