‘A Persistent Problem’

The Supreme Court case Dollar General v. Mississippi Band of Choctaw Indians began with an alleged sexual assault of a minor by the non-Indian manager of a Dollar General store on the Choctaw Indian Reservation in Mississippi. As the plaintiff, Dollar General is asking the Supreme Court to overturn three lower court opinions that held that the discount retail chain had agreed to tribal jurisdiction, in the form of a heavily negotiated contract, when it became a lessee on Choctaw nation land.

The deeper issue, however, is whether tribal nation courts should have jurisdiction in civil tort and contract claims involving non-Indians on Indian lands. If the company is successful in overturning tribal civil jurisdiction, leading historians and legal experts say that the potential long-term impact could affect nearly every aspect of tribal life in America.

As Indian country awaits the outcome, Dollar General has laid bare a history of corporate greed, wholesale Native uprooting and empire building reaching back some 150 years—involving, of all things, the railroad industry.

In September 2015, the powerful Association of American Railroads (AAR) quietly submitted a “friend-of-the-court” brief in support of Dollar General, some three months before the high court heard the case. Founded in 1934, the AAR is a trade organization which represents the major freight railroads of the United States, Canada and Mexico, including Amtrak―which is owned by the U.S. government.

RELATED: Tribal Justice on Trial: Dollar General, Part II

While extolling the “important and beneficial working relationships” the railroads enjoy with the tribes, the AAR in its brief urged the high court to nullify tribal jurisdiction in “all civil actions” against non-members.

The problem, the railroad lobby remonstrated, is not only the multiple tribal jurisdictions with which its corporate membership must negotiate. There is also the potential, the brief argued, for “devastating” claims for injunctive relief by tribes and their members.

“[R]ail operations, like all heavy industry, entail risk of injuries that may give rise to tort claims against rail operators,” the railroad association wrote. “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.”

‘Big Game’

Leading historians and legal experts, however, say that the AAR’s intercession reveals a more ominous corporate objective in the association’s business relationships with the tribes.

“This case is big game for the railroads and corporations because it goes well beyond an alleged sexual assault in Mississippi,” said Richard White, the Margaret Byrne Professor of American History at Stanford University. “Dollar General is an important case for all these companies because it has the potential to erase any liability for anything they might do on Indian lands.”

“There is a long and deep history in the hostility of the railroads toward the tribes that goes all the way back to the 1860s,” White said. “Certainly, they will say that they’re simply concerned about jurisdiction, but Indians matter to them only insofar as they can profit from them, and environmental liabilities are a threat to their bottom line. So jurisdiction is a major obstacle in their way.”

The entrance of the railroads into the discussion about modern tribal jurisdiction recalls their notorious history in breaking up tribal lands and forcing Indians onto reservations in the 1800s, said White, a MacArthur Fellow and author of Railroaded: The Transcontinentals and the Making of Modern America (W.W. Norton, 2012), a finalist for the Pulitzer Prize in History. As land speculators, surveyors and rail companies rushed to cash in on newly acquired land titles for easements and rights-of-way, Indian tribes were viewed as an obstacle to “progress.”

To clear the way and protect their interests, the railroads depended on the U.S. military to send troops to secure their rail lines. Numerous armed clashes erupted across the western United States as tribes fought in vain to protect their homelands, launching the so-called “Indian Wars.”

“It’s not necessarily the trains or the tracks, it’s what they own: rights-of-way and easements all over the country that run through Indian lands that they took by hook or by crook or military force,” said Eric Reed, a Dallas-based attorney who is a member of the Choctaw Nation of Oklahoma. “Thousands and thousands of miles of throughways that they obtained at well below or no market value―and they own or lease it in perpetuity.”