Analysis Violence

Advocates: Supreme Court Ruling in Favor of Dollar General ‘Will Be an Attack on Tribal Sovereignty’

Kanya D’Almeida

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 sexual assault case involving Dollar General.

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-Nativesin 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.

News Law and Policy

Supreme Court Tie in Dollar General Case ‘Clear Victory’ for Tribal Sovereignty

Nicole Knight

The case, Dollar General v. Mississippi Band of Choctaw Indians, hinged on whether the tribe had the authority to resolve civil lawsuits involving non-members—in this case, a $20 billion company—on Native lands.

A U.S. Supreme Court tie on Thursday represented a win for tribal court authority in a case involving a Dollar General employee accused of molesting a 13-year-old more than a decade ago.

The case, Dollar General v. Mississippi Band of Choctaw Indians, hinged on whether the tribe had the authority to resolve civil lawsuits involving non-members—in this case, a $20 billion company—on Native lands.

Justices deadlocked 4 to 4 in their opinion, leaving in place a federal appellate court decision that rejected Dollar General’s challenge to tribal court jurisdiction.

“It’s a clear victory,” said Mary Kathryn Nagle, counsel to the nonprofit National Indigenous Women’s Resource Center (NIWRC), in an interview with Rewire. NIWRC filed an amicus brief in the case in favor of tribal sovereignty, along with 104 other organizations. “Dollar General spent a lot of time, and lot of money, and a lot of resources attempting to completely eliminate tribal jurisdiction.”

In 2003, Dale Townsend, a Dollar General store manager, allegedly engaged in repeated acts of sexual molestation at the store on a then-13-year-old Choctaw boy, who was placed there by a youth job-training program. The Dollar General store sits on tribal trust lands, agreed to Mississippi Choctaw tribal court jurisdiction regarding its store lease, and operates under a business license issued under Choctaw code.

In 1981, the Court ruled in Montana v. United States that tribal authority extends to non-Natives entering into consensual relationships with a tribe “through commercial dealing, contracts, leases, or other arrangements,” as SCOTUSblog wrote in the case preview.

Dollar General, however, argued the tribal court had no authority. In its appeal, the Tennessee-based corporation invoked a 1978 ruling, Oliphant v. Suquamish Indian Tribe, in which the Supreme Court held that tribal courts lacked judicial power over non-members in criminal cases.

The boy’s case, however, was a civil matter. While the tribe’s attorney general took steps to bar the Dollar General manager from the reservation, the U.S. Attorney did not bring criminal charges against Townsend. The boy’s family is suing Dollar General and the store manager for damages in excess of $2.5 million, a case that can now continue in tribal court.

Advocates had called the closely watched case an “attack on tribal sovereignty.”

“Nowadays, it’s a very good thing when tribal rights and powers are freshly affirmed,” Robert Coulter, executive director of the Indian Law Resource Center, told Rewire in a phone interview Thursday. “Had Justice Scalia been sitting on the Court, this case would have depended on Scalia’s vote. That’s why there was a great deal of concern and anxiety about the outcome of the case.”

The death of conservative Justice Scalia, and Republican gridlock, has left the highest court in the land with only eight justices.

“If Dollar General had been successful … tribal governments would have been stripped of their inherent jurisdiction over the majority of individuals attempting to harm their men, women, and children,” Nagle, counsel for NIWRC, told Rewire.

“In Indian country, our men, women, and children face the highest rates of sexual assault, domestic violence, and murder—higher than any other population in the United States,” she noted. “The U.S. Department of Justice has reported that the majority of these assaults are committed by non-Indians.”

When prosecutors decline to pursue these kinds of crimes, survivors have increasingly turned to civil courts for recourse.  

More than four out of five Native women are subjected to some form of violence, and 56 percent have experienced sexual violence, according to a May 2016 National Institute of Justice Research Report.

Mississippi Choctaw Tribal Chief Phyllis Anderson told the Associated Press that the Supreme Court tie was a positive outcome “not only for our tribe, but for all of Indian country.”

News Human Rights

Advocates Cheer New Indian Child Welfare Act Regulation

Nicole Knight

The first comprehensive update issued since ICWA's implementation in 1978, it requires state courts to ask all participants in child custody proceedings whether a child is an “Indian child," legally defined as being a member of, or eligible for membership in, a federally recognized tribe.

A new federal rule issued this month under the Indian Children Welfare Act could keep more Native children in tribal communities, advocates say.

The new regulation requires state child custody proceedings to more consistently apply the federal Indian Child Welfare Act (ICWA) by imposing several new standards. The first comprehensive update issued since ICWA’s implementation in 1978, it requires state courts to ask all participants in child custody proceedings whether a child is an “Indian child,” legally defined as being a member of, or eligible for membership in, a federally recognized tribe.

The regulation, issued by the Bureau of Indian Affairs and set to go into effect in December, also clarifies when child custody cases can be transferred to tribal courts, and requires parents and the tribe to be notified when a family is involuntarily relinquishing a child, among other key provisions.

Prior to ICWA’s enactment, an estimated 25 to 35 percent of Native children had been separated from their families in what congressional testimony at the time described as an “Indian child welfare crisis of massive proportions.”

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Dr. Sarah Kastelic, executive director of the National Indian Child Welfare Association (NICWA), called the new federal rule a “historic step” in a “child welfare system [that] still falls short for our Native children.” Native children, according to Kastelic, are four times as likely as white children to be removed from their homes on their first encounter with the courts, even under identical circumstances.

American Indian and Alaskan Native children are overrepresented in the country’s foster care system at more than 1.6 times the expected level, according to a 2007 report by NICWA and the Kids Are Waiting campaign, a project of The Pew Charitable Trusts. In Alaska, for example, Native children make up 20 percent of the population, but account for about 51 percent of children in foster care, the report noted.

Proponents of the regulation point to the complex and much-publicized case of Baby Veronica. A 2013 U.S. Supreme Court decision required Cherokee Nation member Dusten Brown to turn over his biological daughter, Veronica, to a white South Carolina couple who had raised her the first two years of her life, as Rewire reported.

Critics, meanwhile, argue that ICWA’s provisions leave children to languish in foster care longer than non-Indian children.

Timothy Sandefur, vice president for litigation with the Goldwater Institute, an Arizona-based libertarian public policy organization that has ICWA-related lawsuits pending in state and federal court, said the law’s provisions ignore the “best interests of the child.”

Sandefur said he’d ultimately like the U.S. Supreme Court to find ICWA unconstitutional.

“This is a matter of racial discrimination, because this law creates a separate and unequal system for Indian children,” Sandefur said in a phone interview with Rewire.

A 2005 report by the U.S. General Accounting Office analyzing foster care in four states found “no consistent pattern” between the length of time children covered under the ICWA remain in foster care compared to children who are not.

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