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Dollar General Tries to Shake Up Tribal Law

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The idea that American Indian tribes are sovereign has a checkered history, in which it’s been both a sword for taking away Indians’ land and a shield for protecting some vestige of self-determination. Tribal sovereignty is before the U.S. Supreme Court on Monday in a case that asks whether tribal courts have authority over non-Indians in civil cases. You’d think that, more than 500 years after first contact, the question would be settled. But it isn't, or not exactly -- and therein lies a tale of big money, big principles and thorny legal details.

The facts of the case, Dollar General Corp. v. Mississippi Band of Choctaw Indians, are pretty straightforward. The corporation runs a Dollar General store in premises it leases from the Mississippi Choctaws on the tribe’s reservation. The lease says that any legal dispute over the lease and its terms shall be resolved exclusively in tribal court, subject to the tribe’s Tort Claims Act. The agreement is very similar to one the corporation would make with a foreign sovereign when leasing property to do business in the sovereign’s territory.

The store ran a “youth opportunity program,” and a 13-year-old tribal member said the store’s non-Indian manager, Dale Townsend, made sexual advances on him when he was participating in it. The boy’s family sued the store in the Choctaw tribal court. The question is whether the tribal court has authority over the store.

The stakes of the case are potentially very large: Non-Indians do billions of dollars of business -- much of it gambling business -- on reservations pursuant to commercial leases and contracts.

The controlling case -- or rather the case that is supposed to be controlling -- is a 1981 decision, Montana v. United States. It says that tribes can regulate nonmembers “who enter consensual relationships with the tribe … through commercial dealing, contracts, leases or other arrangements.” It also says that tribal courts have civil authority over non-Indians on the reservation when their “conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”

The Choctaw court said it had authority over Dollar General because the company had a commercial lease with the tribe and Townsend’s conduct threatened the tribe’s health and welfare. A federal district court then held that the tribal court had jurisdiction over the company but not over Townsend, and the U.S. Court of Appeals for the 5th Circuit agreed. Townsend was then absolved of civil liability in tribal court, but Dollar General asked the Supreme Court to take its case.

Ordinarily, you’d have predicted the Supreme Court wouldn't touch the case, because it doesn't like to hear cases where settled law is being applied to particular facts. There was also no conflict among the circuit courts of appeal on the basic legal framework.

But Dollar General’s lawyers are asking the court to create a new rule that tribal courts have no civil jurisdiction over non-Indians unless Congress specifically and clearly grants them the right. That's already the case for criminal proceedings, under a 1978 precedent.

The basis for Dollar General’s argument is that much of the U.S. Constitution doesn’t apply in tribal courts. There’s no automatic appeal to nontribal courts from the courts’ decisions. And, the company maintains, non-Indians “face distinct disadvantages” in tribal courts. In particular, some tribal law is unwritten custom that can in certain cases be ascertained only by asking tribal elders about it.

On the surface, these concerns may seem legitimate. But none of them would carry much water if made against a universally recognized sovereign nation. If you choose to do business in the United Arab Emirates, say, and agree to settle disputes under Emirati law, you assume the business risk of engaging in the UAE legal system, however arcane it may be and however much it may favor domestic actors.

So Dollar General has to go further -- which it does by asserting bluntly that “tribal court jurisdiction over nonmembers is fundamentally incompatible with the United States’ ‘overriding sovereignty’” over Indian tribes.

This claim has the virtue of being honest: The company is asking the court to say that Native American sovereignty isn't really sovereignty in a meaningful sense -- not even when a non-Indian entity has voluntarily and contractually placed itself under the tribal court’s jurisdictional authority.

So what will the court do? Will the justices be prepared to depart from precedent and tell Native Americans that a convenient legal fiction of their sovereignty lacks even this shred of plausibility? The fact that the Supreme Court agreed to hear the case strongly indicates that at least four justices, the number necessary to agree to hear it, would be prepared to do so. Before granting certiorari, the court asked the solicitor general for his views. The solicitor’s office recommended against taking the case, but the court did it anyway.

The gambling industry would love to see the court take away tribal civil sovereignty over non-Indians. That would strengthen the industry's hand when negotiating contracts with tribal authorities by taking away even the option of a promise to adjudicate disputes in tribal courts. For their part, tribes could try to lobby Congress to authorize civil jurisdiction over non-Indians. But it's highly unlikely that they could convince Congress.

Everyone understands that the ideal of tribal sovereignty has often been dishonored in U.S. law and practice. For precisely this reason, the court ought not to add further insult to historical injury. The federal government's truly shameful treatment of Native Americans is a tradition that deserves to be repudiated, not perpetuated.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net