SCOTUS Takes on Tribal Jurisdiction in Sexual Assault Case

“Dollar General is seeking a ruling that tribal courts can never exercise civil jurisdiction over a non-Indian unless Congress has given its express consent.”

The Trouble With Dollar General: SCOTUS Takes on Tribal Jurisdiction in Sexual Assault Case.

It was supposed to be the quintessential rite of passage. In the summer of 2003, John Doe did what a lot of teenagers do: He got a job. As a participant in the Youth Opportunity Program (YOP), the 13-year-old would be paid by his tribe, the Mississippi Band of Choctaw Indians, while he got work experience at the Dollar General store on the tribe’s reservation. In exchange, the retail giant would get free labor while training local tribal members and teaching them job skills.

But what began as a win-win for everyone went horribly wrong. During the course of his brief internship, the boy (whose real name has been changed to protect his identity) alleged that he was sexually assaulted several times during work hours by the store’s manager, Dale Townsend, according to court documents.

After the U.S. Attorney’s office, which has jurisdiction over crimes on tribal lands in Mississippi, declined to press criminal charges, John Doe and his parents then sued Townsend and Dollar General in tribal court for civil damages. Subsequently, Townsend and Dollar General sued the tribe in federal court disputing the tribal court’s jurisdiction. Although the federal district court for the Southern District of Mississippi and the Fifth Circuit Court of Appeals in New Orleans both ruled that the tribe did have jurisdiction, last June the United States Supreme Court agreed to hear Dollar General v. Mississippi Band of Choctaw Indians in what legal experts are calling the “most potentially devastating case for Indian tribes in half a century.”

The central question for Dollar General: Whether tribes have the jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

The Mississippi Choctaw, however, insist that the ability to protect their children falls squarely within the tribe’s sovereign regulatory authority on their land?and the lower courts sided with the tribe. “[T]he ability to regulate the working conditions (particularly as pertains to health and safety) of tribe members employed on reservation land is plainly central to the tribe’s power of self-government,” wrote the judges in the Fifth Circuit, rejecting Dollar General’s contention that there was “no nexus” between Dollar General and the tribe’s Youth Opportunity Program.

The Does, the Mississippi Choctaw, Dollar General and Townsend were all contacted for this story, none of whom responded by press time.

The Absence of Justice

In Mississippi, the federal government retains criminal jurisdiction over crimes committed on Indian reservations. Therefore, if the U.S. Attorney declines to prosecute a case, it cannot be tried in tribal or state court. This jurisdictional “black hole” has led to thousands of untried cases and legal dead-ends for victims, as well as grim crime statistics for Indian people, who are more than twice as likely than other racial groups to experience violent crime and sexual assault, according to the U.S. Department of Justice.

“To be perfectly frank, the U.S. Attorney typically will not prosecute crimes of a sexual nature because they take the position that unless it’s a capital murder offense or white-collar crime that they have a fairly good chance of winning, it’s not worth the time,” says one former U.S. Attorney who declined to be identified because of the sensitivity of the case. “So what you have here is a ‘he said/he said,’ which is not a home-run.”

In January 2005, righteously angry that their son’s case had slipped beneath the waves of justice, Doe’s parents took Townsend and Dollar General to court for damages in the tribal court of the Mississippi Choctaw, whose court system and legal code are nearly identical to the state of Mississippi.

In their petition, the parents alleged that not only was Dollar General liable for Townsend’s criminal conduct, but that the company was also negligent in his hiring, training and supervision, and asked for $2.5 million in actual and punitive damages.

Townsend and Dollar General both immediately moved to dismiss based on their contention that the tribal court “lacked jurisdiction.” In 2008, the District Court for the Southern District of Mississippi held that the tribal courts had no jurisdiction over the alleged perpetrator Townsend. Dollar General, on the other hand, had knowingly consented to the jurisdiction of the tribe when it became a lessee on Choctaw land, the judges wrote, and should therefore be subject to tribal court jurisdiction.

No Stranger to Indian Country

In 2000, Dollar General entered into an agreement with the Mississippi Choctaw that the company would open a store on the tribe’s reservation land located about 90 miles northeast of the Mississippi state capitol in Jackson. The language in the leasing agreement was unambiguous in regards to tribal jurisdiction and governing law: “This agreement and any related documents shall be construed according to the laws of the Mississippi Band of Choctaw Indians and the state of Mississippi (pursuant to Section 1-1-4, Choctaw Tribal Code). Exclusive venue and jurisdiction shall be in the Tribal Court of the Mississippi Band of Choctaw Indians. [Emphasis added.] This agreement and any related documents is subject to the Choctaw Tort Claims Act…”

But as soon as the case against Townsend and the retail giant began working its way through the Mississippi Choctaw legal system and into federal court, Dollar General began bristling at the notion of tribal jurisdiction.

Among its various claims, the company has stated in court documents that it is a “stranger” to tribal court jurisdiction; that permitting tribal courts to exercise tort (or non-criminal) jurisdiction could “impose ruinous punitive damages … [with] the same purpose and effect” as criminal punishment; and that Dollar General should not be bound to rules in an “unfamiliar court.”

Indian law experts across the country, however, have decried Dollar General’s position as a disingenuous double standard. Many companies do business with Indian tribes every day, they argue, with no qualms about suing tribal members in tribal courts for a variety of tort claims?as long as they are the plaintiff. Being a defendant, however, is a different story, even though they knowingly consented to such a relationship with the full knowledge of their legal departments.

“Dollar General is no stranger to Indian country, they’re in nearly every Native community,” says Richard Guest, director of the Tribal Supreme Court Project for the Native American Rights Fund. “When these non-Indian companies come on to the reservation to do business with the tribe or a tribal member, they have fair notice that they will be subject to the civil jurisdiction of tribal courts for any harm they cause to the tribe or its members on tribal lands. That should not be a ‘surprise’ to these companies—it is the well-established law of tribal civil jurisdiction over the activities of non-Indians on tribal lands within the reservation.”

As a matter of course, tribes and their courts do not have authority over non-Indians, but for two exceptions laid out in Montana v. United States [1981], which include “consensual relationships” and “activities that threaten the political integrity, economic security or the health and welfare of the tribe.”

In June 2014, the Fifth Circuit Court of Appeals ruled that the “consensual relationship” exception applied in this case, holding that “[Townsend’s conduct] has an obvious nexus” in relationship to Dollar General and the tribe’s Youth Opportunity Program. “A tribe that has agreed to place a minor tribe member as an unpaid intern in a business located on tribal land on a reservation is attempting to regulate the safety of the child’s workplace. Simply put, the tribe is protecting its own children on its own land.”

What is Dollar General?

According to the company’s website, Dollar General is “one of the fastest-growing retailers in America,” with 12,198 stores in 43 states and over 105,000 employees. The Tennessee-based, publicly traded discount retailer [NYSE: DG] reported nearly $19 billion in sales last year, with a market capitalization of just over $20 billion, according to the New York Stock Exchange. The company’s main competitors include Walmart, Dollar Tree and Family Dollar. Many of its stores are in small towns and poor areas, including a sizeable number of Indian reservations and high-Indian tribal jurisdictional areas (TJAs).

Over the years, the company has been embroiled in numerous legal disputes and altercations with federal agencies, which include: making false statements or failing to disclose adverse facts in its financial statements with the Securities and Exchange Commission, resulting in a $162 million settlement in 2001; numerous violations with the Occupational Safety and Health Administration (OSHA), which resulted in nearly 40 citations out of 72 inspections since 2009; a class action suit for unpaid overtime resulting in an $8.3 million settlement in 2014; and numerous lawsuits for racial and disability and gender discrimination.

In 2006, Dollar General was also the subject of a class action lawsuit by over 2,100 female employees citing the company’s pay system which discriminated against female store managers who were paid less than their male counterparts. The company settled out of court for $18.75 million in 2012.

Last year, the company was forced to pay nearly $4 million to settle another class action suit for violations of the Fair Credit Reporting Act (FCRA), in which the company “willfully failed to comply with the disclosure and authorization requirements in [the FCRA],” including failing to inform applicants that a background check would be done, as well as failure to obtain their consent.

No Justice for John Doe

In June, over the objections of the Solicitor General, and despite the fact that there was no circuit split on this matter, the Supreme Court granted Dollar General’s petition for certiorari. The case has rattled Indian tribes and their legal teams across the country, who view the high court’s intervention as an ominous indicator of its intentions.

For John Doe, what started as a desire to gain job experience and earn a little extra spending money has become the latest clash over tribal sovereignty and corporate influence on Indian lands. With a Supreme Court showdown looming, Indian country is preparing for what legal experts are calling “the most important Indian law case in decades.”

“Dollar General is seeking a ruling that tribal courts can never exercise civil jurisdiction over a non-Indian unless Congress has given its express consent,” says Stephen Pevar, senior counsel for the American Civil Liberties Union, which filed its amicus brief in support of the Mississippi Choctaw on October 21. “The Solicitor General urged the Court not to take the case, essentially saying that this is a run-of-the-mill case that presents no new or difficult or conflicting issues and that surely the tribe has jurisdiction. Therefore, the fact that [SCOTUS] took this case is troubling.

“[Dollar General] wants to wipe out all civil adjudicatory jurisdiction of tribes over non-Indians. Until now, the question had only been whether the non-Indian had sufficient causal connections with the tribe or had done something (or threatened to do something) particularly serious to the tribe to allow the tribe to subject that person to the tribe’s judicial authority. But Dollar General wants to have a blanket prohibition of such authority unless Congress has consented or the person being sued has consented. The implications are enormous because it would strip tribes of the rights that landowners typically have.”

Oral arguments for Dollar General v. The Mississippi Band of Choctaw Indians have been set for December 7, 2015.

Coming soon: The Trouble With Dollar General: Part 2

Suzette Brewer is a writer specializing in federal Indian law and social justice issues, having written extensively on the Indian Child Welfare Act for Indian Country Today Media Network. Her published books include Real Indians: Portraits of Contemporary Native Americans and America’s Tribal Colleges; Sovereign: An Oral History of Indian Gaming in America. She is the 2015 recipient of the Richard LaCourse-Gannett Foundation Al Neuharth Investigative Journalism Award for her work on the Indian Child Welfare Act.

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