Courtesy Mississippi Band of Choctaw Indians
“Today, all of Indian country congratulates the Mississippi Band of Choctaw Indians and shares in the good news from Washington, D.C.”

Breaking: Victory for Tribes as SCOTUS Ties in Dollar General

Suzette Brewer

In a narrow victory for the nation’s 567 federally-recognized tribal nations, the United States Supreme Court today announced a 4-4 deadlock in Dollar General v. Mississippi Band of Choctaw Indians, which allows a 5th Circuit opinion in favor of the tribe to stand. Notwithstanding a petition for rehearing the case, the retail giant will be now subject to the tribal court’s jurisdiction in a long-running case that had grave consequences for tribal civil jurisdiction for contracts and tort violations by non-Indians on Indian lands.

This case began in 2003 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 a participant in the tribe’s Youth Opportunity Program, a 13-year-old boy was allegedly sexually assaulted several times on the job by the store’s manager, Dale Townsend, according to court documents.

RELATED: Breaking: SCOTUS Overturns Ninth Circuit, Upholds Tribal Court Convictions

In Mississippi, although the federal government retains criminal jurisdiction over crimes committed on Indian reservations, the U.S. Attorney’s office in Jackson declined to press charges against Townsend. The boy’s parents sued Townsend and Dollar General for actual and punitive damages in the tribe’s civil court, whose court system and legal code are nearly identical to the state of Mississippi.

Townsend and Dollar General both immediately moved to dismiss based on their contention that the tribal court “lacked jurisdiction.” While the Mississippi Choctaw Supreme Court, the District Court for the Southern District of Mississippi and the Fifth Circuit Court of Appeals all held that the tribe had no jurisdiction over Townsend since he is non-Indian. Dollar General, on the other hand, was a different matter.

RELATED: Dollar General: Railroading the Tribes

In short, Dollar General had knowingly and willingly agreed to tribal jurisdiction when it became a lessee on Choctaw land a contract negotiated by both corporate and tribal legal teams. In asking the Supreme Court to overturn three lower court opinions that held that the discount retail chain had agreed to tribal jurisdiction, the case had far-reaching impacts for tribal courts across the country regarding the issue of civil torts and contract cases.

Today’s deadlock, while rendering no precedent, effectively reaffirms and allows the Fifth Circuit’s decision in favor of the tribe to stand. After the decision was published, the mood in at the tribe’s headquarters in Mississippi was described as “joyous.”

“I am pleased to announce that today the U.S. Supreme Court issued its long-awaited decision, and the result does not deprive sovereign authority of our tribal courts to hear and issue a final ruling in a lawsuit brought by tribal members seeking to have their day in court,” said Mississippi Choctaw Tribal Chief Phyliss J. Anderson. “Even though the Court was unable to reach a majority decision in our favor, I am grateful the result of the case nevertheless affirms the sovereign right of Indian tribes to assert civil jurisdiction against a non-Indian entity in certain circumstances. This is a positive outcome, not only for our tribe, but for all of Indian country.”

RELATED: First Impressions: Dollar General and Indian Country

As a collective sigh of relief and surprise rippled through tribal courthouses and boardrooms throughout Indian country, legal experts were guarded about the long-term legal issues regarding tribal civil jurisdiction on Indian lands.

“Today, all of Indian country congratulates the Mississippi Band of Choctaw Indians and shares in the good news from Washington, D.C.,” said John Echohawk, executive director of the Boulder, Colorado-based Native American Rights Fund. “In anticlimactic fashion, an equally divided (4-4) Supreme Court affirmed the ruling of the Fifth Circuit in Dollar General v. Mississippi Band of Choctaw Indians, which upheld tribal court jurisdiction over a non-Indian corporation doing business on the reservation.

“Although this result does not create a national precedent, it avoids another stinging loss from a Supreme Court which refuses to recognize the lawful governing authority of Indian tribes over all persons who come onto Indian lands, especially those like Dollar General who enter into and profit from business dealings with tribes and their members on their reservations.”

RELATED: The US Supreme Court Hears Arguments in Dollar General Case

Now that the case has concluded in a tie, legal experts across the country said they are cautiously optimistic about whether the court has an appetite to rehear the case again, should a petition be filed by the retail giant. Given the fact that the court is now seated with only eight justices, most observers interviewed by ICTMN say it’s unlikely the high court would grant cert on the merits of the case.

In the meantime, the tribe’s assistant attorney general said it is preparing for the case to return to tribal court.

“Now that the Supreme Court has ruled in this matter, we expect the case to be returned to the Choctaw Trial Court where the case will proceed to the merits in accordance with the Choctaw Civil Rules of Procedure,” said Cheryl Hamby, MBCI Assistant Attorney General.

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

Even in the absence of another hearing on this particular issue, however, others believe today’s decision offers the tribes important opportunities to continue building and reinforcing their court systems. Further, it also grants the federal judiciary and the Supreme Court an opportunity to begin consulting and working with the tribes and their courts to align their mutual objectives in strengthening jurisprudence in Indian country.

“The other two branches of government Congress and the President have gone a long way toward engaging and consulting with the tribes in a government-to-government relationship in the last five or six years that have been an incredibly powerful engine for change within Indian country,” said Troy Eid, former chairman of the Tribal Law and Order Commission and co-chair of the American Indian Law Practice Group at Greenberg Traurig LLP in Denver. “The idea that the Supreme Court doesn’t consult with the tribes is antiquated, because they should. The tribal courts could be an important partner in resolving some of the issues that face the tribes so it doesn’t get to the point where they’re always in litigation to resolve the issues around jurisdiction and forum.

RELATED: The Trouble With Dollar General: SCOTUS Takes on Tribal Jurisdiction in Sexual Assault Case

“So the time has come for the federal judiciary and the Supreme Court to begin working with the tribes, because we need to think bigger about these issues. Conversely, the tribes, their leaders and the national organizations need to organize a response and respectfully request that these consultations begin. Because it’s one thing for a Supreme Court justice to visit a tribal court. It’s another to actually start the process of consulting. And it needs to happen.”

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This is a good victory. One

skanon's picture
Submitted by skanon on
This is a good victory. One that we need to look at closely along with the earlier victories we've had in this arena. Being able to legislate, enforce and adjudicate issues arising in our territories is an ancient inherent right of all nations and peoples. It is most certainly not a right that we surrendered in any treaties because of its inherent and ever lasting nature. International law recognizes this important and critical asset belonging to nations and peoples. In the U.S. our inherent rights are impinged upon by the colonial and racist doctrine of "plenary power", In Canada the federal government passed an Inherent Right and Self-Government Policy specifically designed to get us to agree to their arbitrary definitions and limitations on these rights. We have spent the last 40 years learning how to be the managers of the settler's programs and have taken our eye off where the real power and sovereignty lies. This is a critical part of nation re-building. In a nutshell, inherent rights are those rights exercised by every other country in the world. We possess those same rights and they form the basis of the nation-to-nation and government-to-government relationships.

Thank goodness! What bothers

WhiteManWanting's picture
Submitted by WhiteManWanting on
Thank goodness! What bothers me is that there were four justices that voted for Dollar General. Too bad their names with opinions are not available, so far.

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Dale Townsend
Phyliss J. Anderson
john echohawk
Choctaw Trial Court
Cheryl Hamby
Tribal Law and Order Commission