Business | Law | National

Native women defend tribal jurisdiction in Supreme Court case

Monday, October 26, 2015

Tribal leaders hear an update from the Tribal Supreme Court Project at the National Congress of American Indians annual convention in San Diego, California, on October 19, 2015. Photo by Indianz.Com

Native women are standing up for tribal sovereignty in a critical U.S. Supreme Court case that is attracting a flurry of attention across the country.

With oral arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians less than two months away, the National Indigenous Women’s Resource Center joined Indian Country in filing a brief in the closely-watched case. The outcome will determine whether a non-Indian defendant who is accused of sexual abuse can avoid the jurisdiction of the Mississippi Band of Choctaw Indians.

Two lower courts have sided with the tribe. But Native women advocates are worried that the justices will overturn those victories and send the wrong message to Native women and Native children, who are victimized at rates far higher than their counterparts.

“NIWRC’s mission is to end violence against Native women,” Cherrah Giles, the president of the board of the Montana-based organization, said in a press release. “NIWRC recognizes, however, that safety is not possible when tribal governments are stripped of the jurisdiction necessary to protect their women and children.”

Dollar General opened its 11,000th store in Murfreesboro, Tennessee in 2012. Photo from Facebook

The dispute arose after the non-Indian manager of the Dollar General store on the reservation was accused of sexually abusing a minor tribal member who was assigned to work there as part of a tribal intern program. The company, however, claims it has not consented to the tribe's jurisdiction even though it entered into an agreement to operate on trust land.

In its brief, Dollar General -- a publicly-traded company with $17.5 billion in revenues -- argues that the minor member and his parents could have filed their claims against the manager in Mississippi state court. Native women say that puts a heavy burden on victims who should be able to turn to their local governments for justice.

“Dollar General’s requested elimination of tribes’ civil jurisdiction over non-Indians is alarming because the majority of the perpetrators of violence against our Native women and children are non-Native,” observed Wendy Schlater, a NIWRC board member. “If the Supreme Court decides tribal courts may no longer exercise their inherent civil jurisdiction over non-Indian conduct on tribal lands, our governments will lose one of the most fundamental functions they must perform to protect their women and children.”

Members of the organization are headed to Washington, D.C., to attend oral arguments in the case on December 7. They plan to gather in front of the Supreme Court to call attention to the struggles facing Native women and children.

A view of the U.S. Supreme Court. Photo by Indianz.Com

“For far too long our voices have been silenced,” said Lucy Rain Simpson, the group's executive director. “We will not accept a non-Indian corporation’s attack on our Nations’ inherent authority to protect its women and children.”

NIWRC's brief wasn't the only one filed last week. The National Congress of American Indians, the Department of Justice, five Oklahoma tribes, six states, the American Civil Liberties Union, a group of scholars and historians and a slew of tribes are hoping to convince the Supreme Court to ignore a competing set of briefs from the commercial industry and a handful of other states.

"This is an extremely important case for tribal sovereignty," NCAI general counsel John Dossett said at the organization's annual conference in San Diego, California, last week.

More than 50 tribes and several other tribal organizations, representing nearly 80 tribes, signed onto NCAI's brief. Another twelve tribes and several groups representing tribal courts joined a different brief in support of the Mississippi Band. NIWRC's brief was joined by 104 organizations that work to prevent domestic violence and provide services to victims.

Representatives of the National Indigenous Women’s Resource Center at a Dollar General store. Photo from NIWRC

"When a tribal government cannot protect its women, the entire nation is in jeopardy," the filing states.

The last time tribal jurisdiction came before the high court was in Plains Commerce Bank v. Long, a case from 2008. By 5-4 vote, the justices held that a non-Indian bank did not have to answer to a lawsuit filed by two members of the Cheyenne River Sioux Tribe despite having entered into a consensual agreement with the couple.

Generally, tribes can't exercise authority over non-Indians. But the Supreme Court decision in Montana v. US lays out two exceptions -- one for "consensual relationships" and another for activities that threaten the political integrity, economic security or the health or welfare of a tribe.

Dollar General's case, like the Plains Commerce one, centered on the "consensual relationships" exception. In both instances, lower courts ruled that the non-Indian entities must answer to tribal jurisdiction only to see those victories overturned by the justices.

Turtle Talk and SCOTUSBlog, a widely-read blog about the Supreme Court, have posted briefs from the case. SCOTUSBlog is written in part by members of a law firm that's representing Dollar General.

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)