The Supreme Court on December 7 will hear oral arguments in a case involving a multi-billion dollar company and a Native American minor, who claims he was sexually assaulted by a store manager on Mississippi tribal lands in the summer of 2003.
While the case is ostensibly a challenge to tribes’ ability to adjudicate civil claims involving non-Natives—in this particular instance, a corporation whose store manager is accused of repeated sexual assaults of a then 13-year-old boy—legal experts say it goes to the very heart of tribal sovereignty, established via decades of settled law.
Women’s rights organizations are particularly concerned that a favorable ruling for the company could peel away the last remaining layer of legal protection that enables Native women to seek justice for sexual violence perpetrated by non-members in tribal courts.
Several legal and advocacy groups are planning to rally on the steps of the Supreme Court Monday to express their dismay that the high court has agreed to hear the case at all, after four separate lower courts affirmed the tribal court’s right to hear the case.
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At the heart of the legal struggle are Dollar General, a nearly $20 billion company that operates many of its approximately 12,300 stores on tribal lands, and the Mississippi Band of Choctaw Indians, of which the alleged victim is a member. In 2003, a youth job-training program placed the teenager in a Dollar General store that sits in a retail plaza on tribal trust land. The young boy claims in the lawsuit that the store’s manager, Dale Townsend, molested him several times during work hours.
The tribe’s attorney general attempted to remove the accused from the reservation, according to SCOTUSblog, “but the United States Attorney never initiated criminal proceedings.” The boy’s family subsequently brought civil claims against the store manager and the corporation in tribal court, suing for damages in excess of $2.5 million.
Four times, Dollar General challenged the tribal court’s jurisdiction to hear the case—including at the Choctaw Supreme Court and at the U.S. Court of Appeals for the Fifth Circuit. In all four instances, Dollar General lost, with each court upholding the tribe’s right to adjudicate the civil claim. As the Fifth Circuit panel wrote in its decision, “Having agreed to place a minor tribe member in a position of quasi-employment on Indian land in a reservation, it would hardly be surprising for Dolgencorp [the Dollar General subsidiary that operated this particular store] to have to answer in tribal court for harm caused to the child in the course of his employment.”
In mounting an appeal with the country’s highest court, Dollar General has invoked a 1978 ruling, Oliphant v. Suquamish Indian Tribe, in which the Supreme Court held that tribal courts lacked adjudicative power over non-members in criminal cases. The corporation is now essentially asking the Court to “complete the critically important, unfinished business of defining the scope of tribal authority to adjudicate tort [civil] claims against nonmembers” as well, according to court documents.
For its part, the tribe claims its court “properly has jurisdiction under clear facts applied to existing precedents,” according to the SCOTUSblog, including important exceptions laid out in the 1981 Montana v. United States ruling, which involve “consensual relationships” and “activities that threaten the political integrity, economic security or the health and welfare of the tribe,” as a report in Indian Country Today Media Network pointed out. In his amicus brief U.S. Solicitor General Donald B. Verrilli has supported the tribe’s position.
“The grounds on which SCOTUS has agreed to hear this case are mythical,” Jacqueline Agtuca, a policy consultant to the National Indigenous Women’s Resource Center (NIWRC), told Rewire.
“We were all shocked when the Court actually took the case; why would they do so unless they were planning to review decades of settled law?”
Rewire Senior Legal Analyst Jessica Mason Pieklo agreed the Court’s decision to take up the case seemed disconcerting. “It is certainly troubling the Court took the case at all given both the underlying facts of the case and the Roberts Court’s history of hostility toward tribal sovereignty. But it doesn’t mean the Court plans on accepting Dollar General’s arguments that tribal laws and courts do not reach the corporation even on tribal lands,” Pieklo added. “Instead it could provide the Court an opportunity to clarify the interaction between federal law and tribal law.”
Should Dollar General succeed, however, the case could have grave consequences for tribal nations. “A ruling in favor of Dollar General will be an attack on tribal sovereignty and an attack on the safety of Native women and children,” Agtuca said.
The Court isn’t expected to issue a ruling on the case until this summer.
Among the case’s many potential ramifications, advocates and providers of such services as shelters are most troubled by what the outcome could mean for women seeking protection from sexual abuse and domestic violence.
NIWRC, a co-organizer of Monday’s rally, along with FORCE: Upsetting Rape Culture, the Indian Law Resource Center, and others filed an amicus brief in support of the Mississippi Choctaw Band of Indians, which has garnered the signatures of 105 organizations, many of them tribal service providers who are equally concerned about the impact of the hearing.
Agtuca says that if the Supreme Court issues a blanket ruling that strips tribal courts of the ability to adjudicate civil claims against non-members, women and children who are subject to violence at the hands of intimate partners or other non-Indians will be forced to travel miles to county courts to seek justice.
“For some women that could mean having to leave their homes, leave their tribal lands, and drive 200 miles or more to a place that is totally foreign, where they may not speak the language, and having little or no resources to begin with,” she explained in a phone interview. “This is unconscionable.”
NIWRC estimates that one in three Native women will be raped in her lifetime, while six in ten will be physically assaulted. A recent statement from the organization further revealed that the murder rate for Native women on some reservations is ten times the national average.
“Dollar General’s requested elimination of Tribes’ civil jurisdiction over non-Indians is alarming because the majority of the perpetrators of violence against our Native women and children are non-Native,” NIWRC Board Member Wendy Schlater said in the statement.
“If the Supreme Court decides tribal courts may no longer exercise their inherent civil jurisdiction over non-Indian conduct on tribal lands, our governments will lose one of the most fundamental functions they must perform to protect their women and children,” she added.