America's Hysteria Over Being Judged in Native Courts

Mike Myers

An interesting case has landed in the U.S. Supreme Court: Dollar General v. Mississippi Band of Choctaw Indians. The case has churned up an interesting group of supporters of Dollar General, including the states of Oklahoma, Wyoming, Utah, Michigan, Arizona, and Alabama; the South Dakota Bankers Association; the Retail Litigation Center, Inc. a public-policy organization that identifies and contributes to legal proceedings affecting the retail industry; and the Association of American Railroads (AAR).

Obviously, there is something about this case that has brought this diverse group together. While they each have a different way of saying it, that something is what they perceive as the threat of Indigenous courts having civil regulatory jurisdiction over how business is conducted in their territories. According to the six states, “… If the decision below is affirmed, the States will become a patchwork of jurisdictions adjudicating tort claims in a disparate manner.”

The problem according to the South Dakota Bankers Association is “The proposition that uncertainty regarding the jurisdictional reach of tribal courts poses potential problems for non-Indians seeking to transact business in Indian country is well-recognized…This is also true, at least in part, because non-members generally cannot vote in tribal elections, and thus can never have a voice in changing procedural rules, substantive law or other matters involving Indian tribunals with which they disagree.”

Whoa, this is shades of Oliphant. For those who may have forgotten or have never heard of this, it is Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). This was about Indigenous governments and tribunals having criminal jurisdiction over non-members who commit a crime in their territories or realms of jurisdiction. In coming to their 6-2 decision the Supreme Court came up with an interesting list of reasons:

“Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.

That’s awfully paternalistic and colonial of them.

(a)           From the earliest treaties with Indian tribes, it was assumed that the tribes, few of which maintained any semblance of a formal court system, did not have such jurisdiction absent a congressional statute or treaty provision to that effect, and at least one court held that such jurisdiction did not exist.

These guys obviously did not read the “earliest treaties”. The 1794 Canandaigua Treaty with the Haudenosaunee has an Article 7 in which a formal complaint mechanism is established for dealing with citizens from either nation committing crimes in the other nation.

(b)           Congress' actions during the 19th century reflected that body's belief that Indian tribes do not have inherent criminal jurisdiction over non-Indians.

Absolutely, these folks were too busy trying to murder us off.

(c)            The presumption, commonly shared by Congress, the Executive Branch, and lower federal courts, that tribal courts have no power to try non-Indians, carries considerable weight.

Need I say any more?

(d)           By submitting to the overriding sovereignty of the United States, Indian tribes necessarily yield the power to try non-Indians except in a manner acceptable to Congress, a fact which seems to be recognized by the Treaty of Point Elliott, signed by the Suquamish Indian Tribe.”

Submitting? The word seems to imply that there was a choice while having a gun to your head and the threat of utter annihilation staring you in the face.

Two of America’s long running fears emerge here. The first being that we might be nations and as such might have sovereignty and inherent rights – not granted to us by Congress. And the second, being the possibility of non-Indigenous folks being tried by Indigenous folks.

Both of these re-emerge in the current arguments. According to the six states – “As a general matter, “regulation” through tort lawsuits brought by private parties should not be considered a valid “other means” of regulation by tribes…tort law is far too opaque to provide the fair notice and clarity needed to operate as a valid regulatory scheme in tribal jurisdictions. And because of that lack of clarity, it is all but impossible for a nonmember to ever knowingly consent to tribal tort law.”

In other words, Indigenous tribunals do not have the sophistication, capacity or capability to deliver solid, thoughtful and unambiguous decisions.

According to the Retail Litigation Center – “The Fifth Circuit’s approach thus ignores more than thirty years’ worth of this Court’s jurisprudence, which consistently emphasizes that a tribe’s inherent sovereignty presumptively does not extend to regulation of nonmembers.”

And then there is this from the Association of American Railroads – “For all tribal courts, there is simply no effective federal review of merits and civil rights issues. It is critical to AAR members—and, indeed, to all businesses in, or considering doing business in, areas potentially subject to tribal jurisdiction—to be able to determine efficiently which sovereign’s courts have jurisdiction over their activities and the law that will be applied.”

And then there’s the polite way of saying ugly things such as this piece from the six states – “And to the extent there are concerns about local biases, those concerns can be alleviated for state court litigation through either (1) diversity jurisdiction, which allows a non-citizen litigant to remove the case to the neutral tribunal of a federal court, or (2) alternative venues and geographically removed appellate courts, which are available when both litigants are citizens. A nonmember hauled into a local tribal court is afforded neither of these safeguards. The nonmember cannot remove the case to a neutral forum, cannot request transfer to an alternative forum (most tribal courts offer only a single venue), and cannot appeal to a separate and removed appellate court system – to the extent that a tribe has an appellate court system (many do not), those appellate courts are typically housed in the same location as the trial court, often sharing a single courtroom.”

The South Dakota Bankers chime in with the following: “This is also true, at least in part, because non-members generally cannot vote in tribal elections, and thus can never have a voice in changing procedural rules, substantive law or other matters involving Indian tribunals with which they disagree.” This harkens back to Oliphant in which it was argued that as non-citizens of the Suquamish Nation they had no venue that they could participate in to effectively protect their rights.

Dollar General mixes two issues together. The first being what rights do individual non-citizens have when they are in an Indigenous territory, and, the second being what rights does a corporation have when conducting business in an Indigenous territory?

They are both present because an employee of Dollar General sexually molested a teenage Choctaw citizen. No one is arguing that this didn’t happen. What they are arguing is the civil suit brought by the young man and his family against Dollar General. This raises the issue of corporate liability for their employee’s actions while conducting business in an Indigenous territory. That’s what has the Retail Litigation Center, South Dakota Bankers and the Railroads are most afraid.

The railroads make the clearest statement of this fear – “While the safest mode of surface transportation, rail operations, like all heavy industry, entail risk of injuries that may give rise to tort claims against rail operators. Congress has unambiguously insulated interstate railroads from certain state law based tort claims, but it has not directly addressed whether those protections apply to tribal law or in tribal courts. For these and other reasons, uncertainty as to whether tribal courts may have jurisdiction, or what laws and procedures may apply, is a persistent problem for AAR’s member railroads.”

Given the increasing number of derailments and toxic spills, they need to be worried. As attorney Peter d’Errico points out, “They apparently want to look at the issue of Indian jurisdiction. They may also want to look at the issue of corporate freedom from regulation.”

Six states - Mississippi, Colorado, New Mexico, North Dakota, Oregon, and Washington – have filed in support of Choctaw. They join the other supporters who include: the United States of America, 13 Tribal Courts and organizations, the Five Civilized Tribes of Oklahoma, the National Indigenous Women’s Resource Center, the ACLU, historians and legal scholars, and NCAI.

The states make a very succinct point which is reiterated in different language in all of the briefs. That point being: “The lease requires Dolgencorp to ‘comply with all codes and requirements of all tribal and federal laws and regulations, now in force, or which may hereafter be in force, which are applicable and pertain to [Dolgencorp’s] specific use of the demised premises.’ It also expressly provides for jurisdiction in tribal courts and subjects the agreement to tribal laws, including “the Choctaw Tribal Tort Claims Act”

You can’t get any clearer than that. Myself and my partners have negotiated business agreements for thirty years with small to large foreign business entities wanting to do business in an Indigenous territory. We have always been quite clear about the terms and conditions and have repeatedly asked if the business and their attorneys understand what they are entering into? Some backed out, but the majority affirmed that they understood and were prepared to move forward.

The bottom line: Some of us have been doing this since the 1500’s. This is nothing new except for the non-Indigenous who don’t want to come under our jurisdiction.

Mike Myers is the founder and CEO of Network for Native Futures, a Native non-profit that works with Indigenous nations, communities and organizations internationally. The network's mission is to support sustainable development and nation re-building through providing of technical assistance, training and consulting.

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