U.S. Supreme Court case could impact tribal sovereignty
By Rosemary Stephens, Editor-in-Chief
Cheyenne & Arapaho Tribal Tribune

The case of Dollar General vs. Mississippi Band of Choctaw Indians, et al has the potential to set precedence over future cases involving corporations who do business on tribal trust lands.

It is a case of tribal civil jurisdiction in the sexual assault case of a Mississippi Choctaw tribal youth. Dollar General operates a store on tribal trust land owned by the Mississippi Band of Choctaw Nation and is leased to Dollar General. Dollar General agreed to participate in a tribal youth job-training program operated by the tribe. The case revolves around the claims brought by two parents whose child, (all are tribal members) was sexually assaulted by the Dollar General’s store supervisor when he was working at the store.

Following the sexual assault on the tribal youth, he and his parents brought an action against Dollar General in tribal court, seeking monetary compensation for pain and suffering to cover the youth’s medical and trauma recovery expenses. Dollar General argues that the Mississippi Band of Choctaw Tribal Court could not exercise jurisdiction over Dollar General because Dollar General is a non-Indian.

The case went before the Mississippi Choctaw Supreme Court, where Dollar General lost. Dollar General around the Tribal Court by filing a collateral challenge to the tribe’s jurisdiction in the United States District Court, Northern District of Mississippi.

After both the District Court and the Fifth Circuit Court of Appeals agreed with the tribe, concluding that the Tribal Court could exercise jurisdiction over Dollar General, Dollar General filed an appeal with the United States Supreme Court.

“Dollar General seeks to avoid accountability for the conduct of its supervisor through the use of jurisdictional gymnastics, litigious tactics that could have far reaching and devastating consequences for the ability of Indian tribes to protect their Native women and children,” Mary Kathryn Nagle, attorney for the National Indigenous Women’s Resource Center (NIWRC) and a partner at Pipestem Law Firm P.C., said.

Dollar General filed its opening brief with the U.S. Supreme Court on Aug. 31, 2015, arguing that it is unconstitutional for tribes to exercise any kind of jurisdiction over non-Indians because tribal courts are unsophisticated, biased and simply not capable of fairly rendering justice.

“The majority of violent assaults against Native women and children are committed by non-Indians. Tribal jurisdiction over non-Indian conduct on tribal lands is critical to a Tribal Government’s ability to protect its women and children,” Nagle said. “Dollar General has not presented a single compelling reason as to why tribes should be stripped of their inherent sovereign authority to protect their women and children from non-Indians’ violence and sexual assault.”

Further reason for concern in this case is the Amicus Brief filed by Oklahoma Attorney General Scott Pruitt supporting Dollar General’s claim they cannot be prosecuted under the tribal court system because they are non-Indian.

In his brief, Pruitt maintains that state and federal courts, not tribal courts, should have jurisdiction over nonmember defendants in civil matters.

The brief states, in part, “Given that adjudication of tort claims involving nonmembers has traditionally occurred in state and federal courts, it is difficult to conceive how a tribe could now establish that the exercise of such jurisdiction is newly necessary to safeguard core sovereign prerogatives. In fact, the explosion in the size and diversity of tribal commercial enterprises and re- venues – an explosion driven by commerce with nonmembers – has occurred in the absence of any widespread attempt to exercise tribal jurisdiction over nonmember defendants in civil matters.”

There are many who question Pruitt’s brief supporting Dollar General.

“It’s very disturbing to read the Amicus Brief that Oklahoma’s Attorney General Scott Pruitt filed in the case of Dollar General vs. Mississippi Choctaw tribe," Dawn Stover, Native Alliance Against Violence (NAAV) executive director, said. "Oklahoma is home to 39 federally recognized tribes and the attorney general’s office is the certifying agency for our sexual and domestic violence programs in the state of Oklahoma and the idea of this Amicus Brief that he filed … he never once mentions that the case at hand, the Dollar General case was a sexual assault case of a tribal youth."

"He never mentions that in his brief and that disturbs me because that’s exactly what this case is," Stover added. "It's about a young boy who was sexually assaulted by a non-Native on tribal land and the feds did not pick up the case, so there was no prosecution at the federal level and the justice that the family chose to seek was a civil tort action against Dollar General,”

She said Dollar General’s response of, “you have no jurisdiction over me is disturbing, and that our attorney general in the state of Oklahoma that is home to 39 tribes is disturbing. It is beyond disturbing … I am at a loss for words.”

NAAV is just one organization who has signed onto an Amicus Brief authored by the NIWRC that will be filed later this month. The brief by NIWRC agrees with the Mississippi Choctaw’s brief on the merits, tribal courts have jurisdiction to adjudicate civil disputes arising from assaults committed against their members on tribal lands.

The case is set for oral arguments in the U.S. Supreme Court in Washington, D.C., on Dec. 7, 2015.

Attempts to reach Attorney General Scott Pruitt for comments regarding his brief were unsuccessful.

5th Circuit Decision:
Dollar General Corporation v. Mississippi Band of Choctaw Indians (March 14, 2014)
Dollar General Corporation v. Mississippi Band of Choctaw Indians (March 14, 2014)

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