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Dolgencorp v. Choctaw: The Anti-Indian Wars Continue

Dollar General corporation (Dolgencorp) wants to escape the jurisdiction of the Mississippi Band of Choctaw Indians, where the parents of a youth intern are suing Dolgen for sexual abuse of their child by the manager of a Dollar General store on Choctaw land.

The lower courts, from the Choctaw to the federal circuit, all held Dolgencorp subject to Choctaw jurisdiction. Dolgen petitioned the US Supreme Court to review these decisions. The court granted the petition.

Dolgen's attack on Choctaw jurisdiction aims not only at exempting itself from Choctaw courts, but also at exempting all corporations from all Indian courts. Dolgen argues that no Indian Nation has civil jurisdiction over any non-Indian.

Corporations obsess about escaping law. The recent Trans-Pacific Partnership contains a provision allowing multinational corporations to protect corporate "investment expectations" from laws that might interfere with their profit. Companies insert arbitration clauses into consumer contracts, to block consumers from using courts to resolve disputes.

Dolgencorp's effort to escape Choctaw jurisdiction reflects this wider, global corporate agenda that calls itself "free market" economics. The agenda translates into the proposition that the managers of capital may do whatever they want, "free" of any legalities except those that support their power.

The State of Mississippi recognized the broader implications of Dolgencorp's attack on Choctaw jurisdiction. In an amicus brief filed together with five other states supporting the Choctaw, Mississippi stated its view: "reversing the decision below would not only constitute an unwarranted assault on the Choctaw tribal court system, but also cast doubt on the inherent rights of all interdependent sovereigns like the State of Mississippi itself. "

No one disputes that the Choctaw maintain a well-developed court system. Dollar General's petition instead focuses on the diversity of Indian court systems. Dolgen asserts that while some Indian Nations have "sophisticated legal systems," others are "small, working with limited resources."

Dolgen also criticizes the fact that many Indian court systems—sophisticated ones included—rely on "tribal customs and traditions" in making decisions. These factors, Dolgen argues, make it wrong to subject non-Indians to Indian courts.

Dolgen says that unless a corporation explicitly agrees to it, Indian courts have no jurisdiction over non-Indians for any reason, no matter how egregious the actions of the non-Indian, no matter how serious a violation of Indian law.

Dolgencorp bases this argument on three premises. First, "Tribal court jurisdiction over nonmembers is fundamentally incompatible with the United States' 'overriding sovereignty.'" Second, Dolgen says Indians can have jurisdiction over non-Indians only if the US Congress "restores" it. Third, Dolgen argues that the case against them in Choctaw court does not come within the decision in Montana v. United States, a US Supreme Court ruling that permitted Indian jurisdiction in certain circumstances.

Dolgen's three premises rest on one foundation. The Montana ruling stated it this way: "Indian tribes cannot exercise power inconsistent with their diminished status as sovereigns." According to Montana, "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation."

This language echoes the rhetoric of U.S. supremacy that flows from the infamous Doctrine of Christian Discovery. People may think the doctrine is a relic of the past, but Dolgencorp's argument and even the Montana case itself have no other foundation.

The arguments in the case do not dig into the underlying doctrine, but focus on what the Montana decision said and didn't say. Montana didn't close the door to all Indian jurisdiction. The decision described two situations where "Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands." These two "exceptions" are the focus of both Dolgencorp and Choctaw arguments.

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 The first "exception" states, "A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements."

The second: "A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

Dolgencorp argues that neither exception applies, and that the basic rule in Montana—exercise of tribal power is limited—blocks Choctaw jurisdiction.

The Choctaw argue that both exceptions apply. First, "the Tribe’s assertion of … jurisdiction … is within the limits of a tribe’s civil authority under Montana" because Dolgen "consented to the exercise of tribal jurisdiction over a workplace sexual assault suit arising … from [its] participation" in a youth employment program at its store on Choctaw land.

Second, the Choctaw point to the circumstances of the case—an alleged sexual assault by the Dolgen manager on a youth employee—and argue these allegations "indisputably implicate the Tribe’s sovereign interest in protecting its members on its land."

Why did the US Supreme Court agree to review this case? The court had no obligation to grant Dolgen's petition. As the US Courts website explains, the court grants a petition for certiorari "if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value." The court grants fewer than 200 of the more than 7000 petitions it receives each year.

The first consideration under the rules of the court for deciding to review a case points to the need for the court to resolve conflicts between circuit courts. But, as both the Choctaw Brief and the US amicus brief pointed out in arguing against Dolgen's petition, there is no conflict among circuit court decisions on the issue in this case. The lower courts have ruled the same way, favoring Indian jurisdiction in similar circumstances.

Dolgencorp framed its petition on a different consideration: that this case presents "an important question of federal law that has not been, but should be, settled by [the Supreme] Court." Dolgen argued that the question of Choctaw jurisdiction over the Dollar General store and its manager involves an "open question" of Indian jurisdiction over non-Indians in civil cases.

The fact that the court granted Dolgen's petition for certiorari indicates that at least four of the nine judges voted in favor. These judge apparently want to look at the issue of Indian jurisdiction. They may also want to look at the issue of corporate freedom from regulation. Together, these two issues cut to the heart of Indigenous self-determination in a global economy.

The Supreme Court wants to expand corporate power. In a long series of cases going back to 1886, the court has treated corporations as if they are people and has expanded corporate rights to political action. The 2010 case of Citizens United v. FEC is a recent example.

The US Supreme Court also wants to undermine or eliminate what remains of Indian sovereignty. The 2013 case of Adoptive Couple v. Baby Girl,in which the court restricted the reach of the Indian Child Welfare Act, is a recent example.

The anti-Indian wars continue. The battlefield is in court.

Peter d’Errico graduated from Yale Law School in 1968. He was staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.