Patrick Sullivan: 'Inherent' tribal court jurisdiction still up in the air

Native women rallied at the U.S. Supreme Court on December 7, 2015, as the justices heard Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case. Photo by Indianz.Com / More on Flickr

Last year, the U.S. Supreme Court famously deadlocked on a closely-watched tribal jurisdiction case, leaving open some big questions about the inherent authority of tribal judicial systems. Attorney Patrick Sullivan looks at the landscape in light of a new lawsuit filed by the Cherokee Nation against the pharmaceutical industry:
State, county and city governments are responding to the opiate crisis by suing the national manufacturers and distributors of these dangerous drugs. For the first time, an Indian tribe has sued prescription drug wholesalers and retailers in tribal court for damages related to addiction. On April 20, 2017, the Cherokee Nation filed a complaint in the District Court of the Cherokee Nation against the drug wholesalers and retailers that operate on the Cherokee reservation in Oklahoma. The lawsuit names national pharmaceutical distributors including McKesson, Wal-Mart, Walgreens and CVS and again raises the question of tribal court tort jurisdiction over non-Indians conducting business on Indian reservations.

That issue was recently addressed by an equally divided United States Supreme Court in Dollar General Corporation v. Mississippi Band of Choctaw Indians. The stalemate decision let stand a Fifth Circuit ruling upholding a tribal court’s jurisdiction over a national retailer. Now, the same issue is once again very much in play in Cherokee Nation of Oklahoma v. McKesson Corp. et al. With a full panel, Neil Gorsuch will be the tiebreaker if this dispute reaches the Court.

In Dollar General, John Doe, a 13 year old tribal member alleged that he was sexually harassed and assaulted by Dale Townsend, an employee of Dollar General. Doe was working in an unpaid internship at the national discount retailer. The store in question was on trust land within the reservation of the Mississippi Band of Choctaw Indians. Doe sued Townsend and Dollar General in the Choctaw Tribal Court for money damages for his subsequent trauma and depression and alleged that Dollar General, through its negligent hiring of Townsend, was vicariously liable for his injuries.

Read More on the Story:
Patrick Sullivan: Will Inherent Tribal Court Authority Over Non-Members Survive Dollar General? (Sullivan Legal Counsel Blog 4/26)

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