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

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.

7 thoughts on “Dollar General and the Racist Foundation of the Supreme Court’s Tribal Jurisdiction Cases

  1. Oro Lee September 8, 2015 / 11:28 am

    Cheryl I. Harris, WHITENESS AS PROPERTY, 106 Harv. L. Rev. 1707 (1993)

    Natsu Taylor Saito, RACE AND DECOLONIZATION: WHITENESS AS PROPERTY IN THE AMERICAN SETTLER COLONIAL PROJECT, Harv. Jnl. on Racial & Ethnic Justice (forthcoming 2015)

  2. Richard Monette September 8, 2015 / 1:29 pm

    As usual, good, clear thinking from you Bryan. Couple thoughts. First, if we are to attribute the Court’s myopia to racism, then perhaps we should re-direct descriptors away from the word “tribal”, a word now used to describe every ‘petty cabal’ in the Mideast or Africa whose wealth the U.S. has either already taken or can’t yet figure how to get. Since there were ‘Anglo-saxon’ tribes, etc., perhaps the descriptors should be more appropriately directed to that which they truly hold in contempt: not tribes themselves, but the race of the people who comprise them. Second, the analogies to the judicial systems of Ferguson, etc., may be vulnerable to the argument that those systems, though relatively small (and corrupt), are nonetheless part of a larger system with which they all share a substantial measure of norms, values, and mores, and thus which affords layers of protection. One charge of ours must be to address what measure, if any, our peoples do, should, or shall also share the same norms, values, and mores, and whether that assessment will instruct a political relationship and judicial infrastructure that protects cultural distinctions, assuages their fears of the unknown, and most importantly, works.

  3. Pilar Thomas September 8, 2015 / 3:49 pm

    This is a Williams v Lee, and Merrion v Jicarilla Apache case – just like Water Wheel in the 9th Circuit. This case should be argued on Lee and Merrion grounds – not Montana grounds. If we argue on Montana grounds, we are conceding Hicks (that maybe Montana applies on Indian lands as well).

  4. bryannewland September 8, 2015 / 4:06 pm

    I’ve received a few replies, including Pilar’s above, urging that I should not be so quick to concede the point on whether the Montana case applies. I agree completely, and should have taken more effort to address the nuances of this area of the law re the Montana case and the ownership status of the land. The cases flowing out of the Montana case haven’t shut the door on tribal jurisdiction over non-Indians on tribal lands. Even if the Supreme Court were to extend its Montana opinion to cover tribal lands, the Band should still win in this case. But, Pilar and other commenters are right that it is still dangerous to concede even that point.

  5. Judy Royster September 9, 2015 / 3:18 pm

    Bryan’s analysis is excellent, but I agree fully with Pilar’s point that conceding that the Montana exceptions apply concedes too much. I have an article forthcoming in the Arizona Law Review that argues just that. I argue that cases like Dollar General, that take place on trust lands, should be decided on the basis of the treaty / treaty-substitute right of use and occupation. The Court in Montana considered and rejected that argument for fee lands, and Hicks certainly muddied every water in sight, but I think the treaty argument may still offer a way to assert tribal authority over nonmembers on trust lands without resort to the Montana exceptions.

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