Published June 24, 2016
Special to Native News Online
By Susan E. Huntsman and D. Michael McBride
What a difference one missing justice makes.
Tribes have avoided a ruling that could have restricted their courts’ jurisdiction, but the U.S. Supreme Court offers no certainty to either side.
In 2003, a 13-year-old boy was allegedly assaulted in a Dollar General store in Mississippi, leading to a fight over tribal court jurisdiction that could have upended decades of lower court decisions.
The boy was a member of the Mississippi Band of Choctaw Indians, who participated in his tribe’s Youth Opportunity Program. In 2003, Dollar General (Dolgencorp) had a store on leased tribal land where a store manager joined the Youth Opportunity Program and accepted the young boy as a volunteer. This same manager then allegedly sexually assaulted the boy. The tribe banished the manager, but lacked criminal jurisdiction to prosecute him, and the U.S. Attorney declined prosecution. Thus, the boy, “John Doe,” turned to his tribe’s courts, suing the manager and Dollar General for $2.5 million in damages. The parties spent years litigating the tribe’s jurisdiction, first in tribal court and then in federal court. Eventually the manager was dismissed from the case, leaving only Dollar General and the tribe to fight it out.
At issue was the tribe’s inherent sovereignty under what is now called the Montana exception. The courts generally focused on the nature of Dollar General’s consensual relationship with the tribe and the nexus between this relationship and allegations in the lawsuit.
In the tribal courts, Dollar General lost. At the federal district court, Dollar General lost. On appeal to the Fifth Circuit, it lost again. It sought rehearing, to no avail.
Dollar General continued to fight–petitioning the United States Supreme Court. This strategy was not surprising. While many lower courts had found tribal court jurisdiction over nonmembers, the Supreme Court had repeatedly avoided deciding this issue. But, the indications were not good for tribes. In 2001, Justice Scalia, speaking for six justices, stated, “we have never held that a tribal court had jurisdiction over a nonmember defendant.” This sentiment was repeated by Justice Roberts in 2008, speaking for five justices in the Plains Commerce case.
Dollar General asked the Supreme Court the question last avoided in Plains Commerce–whether Indian tribal courts could ever have jurisdiction to adjudicate civil tort claims against nonmembers. In its briefing, Dollar General broadly argued that tribes had no historic experience exercising such powers over non-Indians. The Solicitor General and several amici, in contrast, sought an expansive view of tribal jurisdiction, arguing that the mere location of the assault on tribal land decided the case. The tribe offered a measured approach, simply asking the court to uphold the application of theMontana exception.
In the end, none of this mattered. A few months after December’s intense oral argument, Justice Scalia died. It appears the court simply could not find a compromise on which a remaining majority could agree. After six months, the entirety of the court’s opinion read, “The judgment is affirmed by an equally divided court.” For everyone but the now 26-year-old John Doe, this means nothing changes. The Fifth Circuit’s opinion stands and binds courts in Texas, Louisiana and Mississippi. It has no precedential value anywhere else.
The uncertainty continues, and the wait for the next big case begins.
Susan E. Huntsman and D. Michael McBride are directors of the Crowe & Dunlevy Indian Law & Gaming Practice Group.