Sovereignty isn’t a difficult concept. If a US citizen crosses the northern border for work and commits a crime, that person should expect to be subject to a Canadian court applying Canadian law. By simply crossing the border, the US citizen consented to the jurisdiction of another authority and is expected to follow the laws of the land.
But for Native Americans with sovereign tribal land, the concept isn’t so simple, thanks to a 1978 US supreme court ruling that tribes can’t prosecute non-natives who commit crimes on their sovereign land. And a new case before the high court Monday has raised fears that Native people’s right to police their own territory will be even further compromised.
In 2000, the multi-billion dollar retailer Dollar General opened a store on the Mississippi Choctaw reservation. Three years later, the manager of that store, Dale Townsend, agreed to participate in a tribal program that placed tribal youth in clerkships with stores operating on the reservation. Townsend, the tribe claims, sexually assaulted a 13-year-old boy assigned to work in the store through the program.
The US attorney’s office in Mississippi could have filed criminal charges against Townsend but declined to do so, meaning Townsend would never be held accountable in criminal court, because the US supreme court ruled in 1978 that Indian tribes cannot arrest and prosecute non-natives who commit crimes on Indian reservations.
That decision created a vacuum of law enforcement on reservations across the United States, one which has seriously impacted native women. One in three native women reports being raped at least once in her lifetime, and they are far more likely to be assaulted than any other ethnic group in the country. Over 80% of the alleged rapes or sexual assaults against native women are perpetrated by non- natives, according to Justice Department statistics, which means violent crimes go unpunished if they occur on reservations, unless victims sue civilly for damages.
This was the situation facing the boy and his family. With no possibility for a criminal conviction, the boy and his parents then decided to sue Townsend and Dollar General for civil damages in tribal court. They argued the company was liable for Townsend’s alleged crimes and negligent in his hiring, training and supervision.
Before going to trial, however, Dollar General filed suit in federal district court, seeking an order halting the tribal action. When the federal district court refused order a halt, Dollar General appealed to the US court of appeals for the fifth circuit. The appellate court also ruled against Dollar General, reasoning that the tribe’s ability to hear these types of cases in its courts is “plainly central to the tribe’s power of self-government”.
But Dollar General wasn’t done. It then asked the supreme court to hear the case. Each year, the court is asked to hear about 8,000 cases, and it accepts fewer than 100. In an ominous turn of events, the court agreed in spite of the lower courts’ rulings and over the objections of the US solicitor general, who is responsible for arguing the federal government’s cases before the high court. The case, which is scheduled to be argued on 7 December, rightly frightens native tribes all across the United States because it could trample on their right to self-government.
The brief filed by Dollar General asks the supreme court to rule that tribal courts cannot hear cases filed against non-Indians unless Congress has expressly authorized such a suit or if the non-Indian has expressly consented to such a suit, neither of which applies here. The tribe claims, on the other hand, that it has – and must retain – the authority to resolve these types of disputes in a tribal court, particularly cases involving such substantial interests as protecting tribal youth from sexual predators. Otherwise its sovereignty is a cruel joke.
The ACLU filed an amicus brief in support of the tribe. In our view, this issue should be decided based on the principle of “fair notice”. Did Dollar General and the manager have fair notice that a sexual assault by the manager could subject them to tribal court authority? We believe so on multiple grounds.
The supreme court has repeatedly recognized tribal sovereignty over the past two centuries. Prior decisions have upheld a tribe’s right to tax non-native people engaging in commerce on Indian reservations and to resolve the inevitable disputes that occur from such economic activities. And if a government can tax an individual or business, it has the power to subject them to a civil court proceeding.
Then there’s Dollar General’s deliberate decision to establish a store on Choctaw land in pursuit of profit. According to the lease agreement signed by Dollar General, the company agreed that “[e]xclusive venue and jurisdiction shall be in the Tribal Court of the Mississippi Band of Choctaw Indians” when disputes over the lease arise. The company and its store manager also agreed to the work program that put the 13-year-old in the manager’s care. Therefore, Dollar General and Townsend had fair notice that this type of misconduct could result in a lawsuit in tribal court seeking damages.
There’s a reason Dollar General Corporation v Mississippi Band of Choctaw Indians has been called the most important case in decades for native people by many Indian tribes and tribal organizations: a victory for Dollar General would be devastating for native tribes. It would mean that tribes lack the governmental authority to regulate misconduct by non-natives and protect their people.
This wouldn’t be sovereignty. It would be subservience.
Adapted from https://www.theguardian.com/commentisfree/2015/dec/07/native-american-sovereignty-at-risk-supreme-court-must-save-it