Tribal Communities Take Fight for Jurisdiction Rights to the Supreme Court

A lawsuit before the highest court challenges how Native Americans can seek justice on reservations.
(Photo: Flickr)
Dec 10, 2015· 2 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

For more than 200 years, the sovereignty of tribal communities in the United States was respected when it came to the legal system. Of the many things taken from Native Americans by European settlers—from land, to cultural traditions, to tribal members themselves—tribal justice systems on reservations remained a stronghold.

On Monday, an argument before the U.S. Supreme Court illustrated the steady dissolution of tribal communities’ right to determine and practice their own system of justice. At stake in Dollar General v. Mississippi Band of Choctaw Indians is the right of tribal communities to bring civil lawsuits against non–tribal members who break the law on their land. These communities are already barred from bringing criminal charges against non–tribal members.

At the core of the Dollar General case is the alleged sexual assault of a 13-year-old Choctaw boy by the non-tribal manager of a Dollar General store operated on tribal land. The boy’s case alleges that the manager, who was supervising a summer youth program in the store, assaulted the boy there during business hours. The U.S. attorney’s office in Jackson, Mississippi, declined to press charges against the manager at the request of the boy’s parents, so they pursued civil charges—their only means of justice—against the manager and the company in tribal court instead. Dollar General’s attorneys then argued that the tribe doesn’t have the authority to sue the non-tribal manager.

“When the court took this case, it really sent shock waves through Indian country,” said Stephen Pevar, an attorney for the American Civil Liberties Union specializing in Indian and tribal rights. “If the court now takes away civil jurisdiction, it will erode tribal sovereignty and make it increasingly difficult for Indian tribes to be self-governing.”

The erosion of tribal legal authority Pevar refers to has crept in through a series of cases that haven’t been found in favor of sovereignty over the past three decades. The shift began with a 1978 Supreme Court decision that stripped tribal communities of their ability to arrest, charge, or prosecute non–tribal members for criminal offenses, which according to Pevar, started a downhill spiral.

“The Supreme Court used to be the protector of tribal sovereignty against public opinion, and Congress was the enemy,” he said. “Now, it’s the reverse.”

While the 1978 decision was a blow to all Native crime victims, it left female survivors of domestic violence and sexual assault especially vulnerable when their attackers were non-Indian.

“Civil jurisdiction is so important, because that is the only recourse that [a Native person] might have to seek some kind of justice in a sexual assault case,” said Jacqueline Agtuca, policy analyst for the National Indigenous Women’s Resource Center, a nonprofit advocacy organization that filed a brief in opposition to Dollar General. According to the Justice Department, one in three Indian women reports being raped during her lifetime. Charges are very rarely brought by state or federal law enforcement in cases that involve non–tribal members, according to Agtuca.

“People ask why the rate of sexual assault is so high for Native women,” Agtuca said. “The answer is very simple: There are no criminal consequences, and [perpetrators] know that.”

In March, a provision of the Violence Against Women Act approved by Congress two years ago went into effect, permitting Indian tribes to investigate and prosecute non-tribal men for some domestic and dating violence crimes. While it was a big step for Native women, the law does not restore tribal courts’ ability to prosecute violence wrought by a stranger or rape.

That loophole makes the civil jurisdiction of tribal courts over non-Native people all the more important, and it is precisely why the 13-year-old Choctaw boy and his family are trying to seek justice through the only means left to them.

Thomas C. Goldstein, the lawyer representing Dollar General, argued on Monday that because tribal courts aren’t bound by constitutional standards, it would be unfair for non-tribal U.S. citizens to be subjected to them—in spite of the fact that legal principles have allowed this for more than 200 years. Neal K. Katyal, the attorney for the Choctaw Indians, told the court that Dollar General had accepted that risk when it chose to open its store.

“Nobody forced Dollar General to show up on the tribal lands,” Katyal said. “Nobody forced Dollar General to sell to these customers. Nobody forced Dollar General to have this Youth Opportunity Program…. When you do those things, you open yourselves up to the reasonable liability that follows.”