Tribal Justice on Trial: Dollar General, Part II
This is the second in a series examining Dollar General v. Mississippi Band of Choctaw Indians, a case that arose out of an alleged sexual assault of a minor by the store’s non-Indian manager. Dollar General is asking the Supreme Court to overturn three lower court opinions that held the discount retail chain had agreed to tribal jurisdiction when it became a lessee on Choctaw land. At issue: Tribal court jurisdiction in civil tort and contract claims involving non-Indians on Indian lands.
The Hearts of the Women
By the end of last summer, outrage had turned into action. After the U.S. Supreme Court granted Dollar General’s petition to decide whether non-Indians could be sued in civil court on tribal lands, Native women began organizing a nationwide coalition to bring attention to the scourge of sexual violence on Indian reservations. On Sunday, October 18, dozens of mothers, grandmothers, sisters and aunts gathered at an early morning panel hosted by the National Indigenous Women’s Resource Center (NIWRC) at a conference in San Diego.
Having led a long, hard fight to include a jurisdictional provision for tribes in the 2013 reauthorization of the Violence Against Women Act to fix jurisdictional immunity for non-Indian perpetrators, they understood the vast, complex consequences for what had become known simply as “Dollar General.” As the discussions got underway, the packed, standing-room-only gathering began spilling out into the hallway of the convention center as Native women and tribal leaders from across the country continued to descend upon the small conference room.
The NIWRC had just submitted its amicus brief to the Supreme Court, gathering 105 signatories in support of the Mississippi Band of Choctaw Indians. But the strong consensus in the room was that filing a brief was not enough. For centuries, Native women and children have been targets of sexual violence while their perpetrators have faced little, if any, consequences.
It is time, the women agreed, to make their voices heard in a cry for justice.
That morning, the NIWRC announced plans to host the “Quilt Walk for Justice” in front of the Supreme Court building on the morning of December 7. Partnering with the Monument Quilt Project, thousands of Indian women are expected to attend the walk to bring national attention to a sexual assault case which has outraged and galvanized Native communities from Alaska to Maine. (See details below.)
“These crimes continue to be committed against Indian people and very little is done about it―and if Dollar General has its way, it will be a greenlight for pedophiles, perpetrators and bad corporate actors on our lands,” says Jacqueline Agtuca, a lawyer and policy consultant for NIWRC. (For clarity’s sake, Agtuca in no way means to imply that Dollar General supports pedophiles, etc., but a lack of jurisdiction will open the door to criminal behavior.) “It will ensure they won’t have any accountability whatsoever for the crimes they commit. That is not okay. We are dedicated to ensuring the safety of our Native sisters and our children.”
The Mississippi Choctaw and Dollar General did not respond to repeated ICTMN requests for comment for this story.
Tribal Justice on Trial
In petitioning the Supreme Court to hear its case, Dollar General asserted that tribal courts are an “unfamiliar forum” for non-Indians who would be subject to “an unwritten set of laws and customs” that would deny U.S. citizens their basic Constitutional rights. Further, they maintained that non-Indians in tribal courts are subject to adjudication without representation, concluding that tribal courts are “harmful.”
Legal experts and tribal court practitioners vigorously object to the retail giant’s position as legal grandstanding. They point out that not only did Dollar General have “fair notice” in agreeing to tribal jurisdiction when it became a lessee on Choctaw land, but that tort and contract claims are heard in tribal courts across the country every day, with little fanfare or complaint. With thousands of civil cases on tribal court dockets, tribal leaders say there is no evidence the Constitutional rights of non-Indians have been abrogated in their courts.
“Dollar General seeks to avoid accountability for the conduct of its supervisor through the use of jurisdictional gymnastics, litigious tactics that could have far-reaching and devastating consequences for the ability of Indian tribes to protect their Native women and children,” says Mary Kathryn Nagle, a partner at Pipestem Law Firm and counsel of record for NIWRC’s amicus brief.
A thorough review of federal laws and tribal justice systems by Indian Country Today Media Network reveals a far more sophisticated legal infrastructure than Dollar General and its allies have alleged―more advanced, in many cases, than their surrounding county and state courts.
“In the 1990s, Congress approved funding for the tribes under provisions of the Indian Self-Determination and Educational Assistance Act [Public Law 93-638] with the specific purpose of improving and enhancing tribal law enforcement, court systems and jurisdiction,” says Eric Reed, a former U.S. Attorney now in private practice in Dallas, Texas. “This included the construction of jails and courthouses, as well as funding for technology, communications and public safety programs. So, it’s curious that the plaintiffs in this case have postulated their argument around ‘What Congress intended,’ because Congress approved billions in federal funding to build, staff and deploy these tribal courts throughout the country for the purpose of expanding their legal systems.”
Reed, who was Special Assistant United States Attorney and tribal prosecutor on the Cheyenne River Sioux Indian Reservation in 1990s, says that not only did the federal government approve these programs, but also provided hundreds of millions in additional funding to train tribal court judges, attorneys, paralegals, prosecutors, public defenders and courthouse personnel with the purpose of strengthening the tribe’s authority over criminal and civil jurisdiction within their territorial limits.
“We provided an enormous amount of training and technical assistance programs for courts, social services and law enforcement not only to the tribes, but also to the states as well,” says Reed. “So, to push the tribes to build and improve their justice systems, only to remove civil jurisdiction―which is one of the most vital components to the whole purpose of self-determination―is an enormous step backwards.”
The Mississippi Band of Choctaw Indians (MBCI) has been distinguished as one of the flagship tribal justice systems in the United States. In 2012, for example, the tribe was recognized by the National Council of Juvenile and Family Court Judges as a model court whose brand new, state-of-the-art justice complex handles all manner of criminal, civil, youth and peacemaking courts.
Additionally, MBCI has a three-member Supreme Court that includes the estimable Edwin R. Smith, a battle-hardened Mississippi lawyer who is no stranger to the U.S. Supreme Court. He represented the tribe in the historic United States v. Smith John . Ten years later, Smith also argued before the Supreme Court―and won―the historic Mississippi Band of Choctaw Indians v. Holyfield , a seminal case regarding tribal jurisdiction and the Indian Child Welfare Act.
“The notion that tribal courts lack legal experience and expertise and are incapable of fairly adjudicating civil torts and contract claims is not only fundamentally wrong, but demonstrates a profound lack of knowledge about the Indian law business,” says John Echohawk, co-founder of the Native American Rights Fund, which recently celebrated its 45th anniversary. “Many tribal courts across the country, including the Mississippi Choctaw, have some of the best, most experienced litigators and legal practitioners in the country.”
‘An Unfunded Mandate’
In addition to the negative consequences for tribes, observers point out the enormous impact a ruling in Dollar General’s favor could have on state courts.
Troy Eid is the former chairman of the Indian Law and Order Commission, which released its findings and recommendations to the President and Congress in A Roadmap for Making Native America Safer in 2013. As a former U.S. Attorney and an active member of the Navajo Nation Bar Association, Eid says a staggering number of civil cases involving non-Indians currently in tribal courts could create an enormous burden upon county and state courts across the country that are already bursting at the seams with caseloads.
“The Navajo Nation alone adjudicates nearly 75,000 cases a year in its court system, 10,000 of which are backlogged criminal cases,” says Eid, who is a partner at Greenberg Traurig in Denver. “So there could be a tremendous number of civil cases on the docket that state courts would have to absorb. This effectively creates an unfunded mandate the logistical and financial implications of which would be enormous. I’m not sure anyone has really pondered the unintended consequences of removing the tribes’ ability to take those cases.”
Tribes across the country have been watching the case with growing unease about the potential for judicial chaos. In particular, they are concerned about serious problems with jurisdiction, tolling statutes, forum, venue, statutes of limitation and inadequate remedies in active cases currently in tribal court systems.
“This has the potential to be very detrimental to thousands of cases,” says Chrissi Nimmo, Senior Assistant Attorney General for the Cherokee Nation. “A ruling in Dollar General’s favor could raise a jurisdictional defense in every pending case involving non-Indian defendants. All of those cases would become subject to motions to dismiss for lack of jurisdiction. Because of these procedural issues, many people may be left without any remedy whatsoever.”
Nimmo says that many cases would be left in limbo over proper forum or declared null because the statute of limitations would have expired.
“Even if a person timely filed in tribal court, the state courts may not recognize those filings for the purposes of computing statutes of limitation,” said Nimmo. “And even more important, if the Supreme Court rules that the tribe does not have jurisdiction in Dollar General, that does not necessarily mean that the state does. There very well could be situations where neither the tribe nor state have jurisdiction. The issue across the country then becomes: No one does. This leaves Indian people with no legal remedy for injury at the hands of non-Indians.”
‘Through Their Hands’
As both sides prepare for the Supreme Court hearing, Agtuca says thousands of Native women from across the country have made plans to travel to Washington, D.C.―some are even chartering buses―to carry their handmade quilt squares during the Quilt Walk for Justice in support of victims of sexual assault in Indian country.
Agtuca says that those who cannot attend have already sent quilt squares to show their support. All quilt squares received by NIWRC will be carried during the Quilt Walk for Justice to end sexual violence against American Indian and Alaska Native women and children.
“Many tribal women are quilters and so this is a project that is really close to our hearts. Native women from as far away as Alaska have sent us quilt squares to add to our quilt,” says Agtuca. “They can’t attend, but through their hands, they can make a statement about sexual violence against their sisters and mothers and children. Their quilt squares are a message to victims of sexual assault, a way of saying, ‘It’s not your fault.’ That’s powerful.”
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