Feministing
June 28, 2016

Supreme Court Deadlock Affirms Tribal Sovereignty

Kelsey Hill

The United States Supreme Court reached a 4-4 deadlock last Thursday in the case Dollar General v. Mississippi Band of Choctaw Indians, heralding a victory for tribal sovereignty in the criminal justice system.

Because of the tie, the Fifth Circuit Court of Appeals ruling on the case affirms the right of the Choctaw to try their case against the retailer Dollar General in their own tribal court.

The deadlock did not create a national precedent, but the Fifth Circuit’s ruling remains a triumph for the country’s 567 federally-recognized tribes as it respects their right to hear suits against non-tribal entities. For the Choctaw Tribal Band, the announcement ensures that the plaintiffs will finally—and rightfully—see their day in court.

"This is a positive outcome, not only for our tribe, but for all of Indian country."

– Mississippi Choctaw Tribal Chief Phyliss J. Anderson

The case unfortunately began over alleged sexual violence that occurred on the Choctaw Reservation in 2003. Dave Townsend, a store manager at a Dollar General located on native land, was accused of sexually assaulting a 13-year-old Choctaw boy on multiple occasions. Despite the fact that the state of Mississippi has the right to try crimes committed on Native American reservations, the Attorney General declined to press any charges against Townsend or the company.

This led to the parents of the boy filing for a suit in the local Choctaw court, whose legal codes are nearly identical to that of the state. When the boy’s family moved to sue Townsend and Dollar General in 2005, injunctions were immediately filed to dismiss the case, claiming that the tribe had no legal authority in the matter.

Dollar General’s representatives argued that the Choctaw courts’ sovereignty did not supersede constitutional authority and there was little basis for the suit to move forward under Choctaw law. However, the Fifth Circuit court disagreed with Dollar General’s argument and instead asserted that the boy’s case should be held within the Choctaw’s sovereign justice system.

There is precedent for the circuit court’s ruling. In Montana v. United States (1981), the Supreme Court recognized that consensual agreements between non-tribal members and tribes — as well as matters relating to the welfare of the tribe — may be tried under tribal jurisdiction.

While the Mississippi Choctaw Supreme Court, the District Court for the Southern District of Mississippi and the Fifth Circuit Court of Appeals all ruled that Townsend himself cannot be tried as a non-member, it places vicarious liability on Dollar General for the alleged sexual violence and exploitation that occurred on tribal grounds. The retail-giant knowingly bound itself to tribal jurisdiction when it signed a contract in 2000, and because of that, it must answer to the accusations placed on their employee in a Choctaw court.

Even though Townsend is not the defendant, the announcement of the Supreme Court ruling brokers in a welcomed precedent regarding inherent sovereignty and tribal right to self-determination, especially in regard to incidents of this caliber.

In a country where sexual violence against Native Americans is far too rampant, the ruling sends a clear message that exploitation of tribes at the hands of commerce is unacceptable. It invites other tribes to act on the sovereignty of the their own self-governing entities to address injustices and criminal behavior on behalf of non-native, corporate interests.

The Court’s deadlock on the matter is not ideal, but the referral back to the Fifth Circuit opinion is nonetheless a watershed moment in the battle for tribal authority in matters pertaining to their land and their members.

“Even though the Court was unable to reach a majority decision in our favor, I am grateful the result of the case nevertheless affirms the sovereign right of Indian tribes to assert civil jurisdiction against a non-Indian entity in certain circumstances,” said Mississippi Choctaw Tribal Chief Phyliss J. Anderson. “This is a positive outcome, not only for our tribe, but for all of Indian country.”

Sovereignty of tribal lands and their framework of justice predate the United States, the Constitution, and the Supreme Court. It is a natural right of tribal communities that they may seek justice following grievances committed on their land. Moving forward, tribal sovereignty must be prioritized and courts should uphold the right for Native American communities to legally protect themselves from non-members’ criminal impunity.