Dollar General., et al. v. The Mississippi Band of Choctaw Indians, et al.

Dollar General asserts that Indian tribal courts should not have the authority to decide civil tort claims against nontribal members, even if there is a consensual relationship between the tortfeasor and the tribe or its members. Meanwhile, the Choctaws contend that Indian tribal courts should have the authority to decide civil tort claims against nontribal members. The parties disagree over the interpretation of the principles that guide courts’ application of the exceptions set forth in Montana v. United States. Specifically, the parties’ arguments focus on whether Dollar General consented to tribal-court authority, whether finding tribal-court authority to hear tort claims will over-broaden the Montana category exception, and whether the tribe’s inherent sovereign authority authorizes tribal courts to hear civil tort claims.

THE APPLICABILITY OF THE MONTANA CATEGORIES

Dollar General argues that a tribe’s legislative jurisdiction over non-tribal members is limited to the two categories the Supreme Court articulated in Montana, and that neither of these categories is applicable in this case. It further contends that the court’s application of the first Montana category is guided by three principles, and that these principles favor the Court finding against tribal-court jurisdiction for a civil tort claim. In addition, Dollar General points out that the Choctaws are not challenging this case under the second Montana category.

On the other hand, the Choctaws argue that Dollar General’s tort liability fits squarely within the first Montana category. Further, the Choctaws posit that the guiding principles of Montana will result in the Court finding that tribal courts have jurisdiction over civil torts.

PRINCIPLE ONE: THE REQUIREMENT OF EXPRESS CONSENT OR CONSENT BY ACTING

According to Dollar General, the first principle, which requires that tribal “laws and regulations may be fairly imposed on nonmembers only if the nonmember has consented either expressly or by his actions,” should be construed narrowly, and thus requires the nonmember’s commensurate consent. With this in mind, Dollar General contends that merely doing business on Choctaw land does not give the required, heightened level of commensurate consent. First, Dollar General argues that there is no express consent because there is no signed contract or similar express consent given between Dollar General and the Choctaws. Second, Dollar General argues that Dollar General could not have given implied consent, because in order for a party who is not a tribal member to give implied consent it must have clear notice of what activities will subject it to tribal authority, which in this case, Dollar General did not have. . To illustrate the lack of clear notice required for implied consent, Dollar General points to the nature of tort law in the tribal context, noting that it is often unwritten, and that precedential decisions are limited because they are hard to access and are also rarely written. In addition, Dollar General cites to various Supreme Court precedent to show that the Supreme Court has not applied the first Montana exception to tort law. Because of the lack of express or implied consent, Dollar General argues that the first principle favors the Court finding against tribal-court jurisdiction.

The Choctaws argue that express and implied consent existed in the case at hand, and thus the first principle should favor allowing civil tort liability to fit within the first Montana category. It points to Dollar General’s relationship with the tribe and Doe and the fact that numerous oral and written agreements between the two parties existed. The Choctaws posit that Doe’s participation in the YOP program is the exact type of consensual agreement Montana contemplated. The Choctaws note that Doe agreed to provide uncompensated labor while Dollar General would provide training to Doe, which the Choctaws posit constitutes an unwritten contract that satisfies the first principle of Montana’s first category. In addition, the Choctaws note that implied consent would also exist through Dollar General’s willing and voluntary participation in the YOP program. Further, the Choctaws point to the lease agreement entered into between Dollar General and the Choctaws. The Choctaws posit that because the lease agreement included choice-of-law and forum-selection provisions, Dollar General consented to the Choctaws tribal-court system. Thus, the Choctaws argue that the first principle favors finding jurisdiction.

PRINCIPLE TWO: THE FEAR OF OVER CONSTRUING THE CATEGORY

Dollar General then posits that the Montana categories should be construed in a limiting way and thus should not be construed in a way that would shrink or swallow the rule that “inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Dollar General points out that the Supreme Court in Montana required that the first Montana category should not swallow or shrink the above-mentioned rule. With this in mind, Dollar General posits that finding civil tort liability in this case will result in the above category swallowing the rule. Dollar General points out that tort law, unlike tax law, applies to nearly all of a nonmember’s conduct on a tribal reservation. Thus, Dollar General argues that because tort law applies to such a large range of conduct, allowing tribes to impose tort law liability would allow for tribal regulation of nearly all activities. Therefore, Dollar General posits that this would over-construe the Montana category and thus swallow the rule that inherent sovereign powers of an Indian tribe do not extend to nonmembers of the tribe. Out of fear of over construing the category, Dollar General posits that tribal courts should not have jurisdiction over civil tort claims.

To the contrary, the Choctaws argue that the Montana category would not be over-broadened by allowing tribal courts to hear tort claims. Instead, the Choctaws assert that tort law is no different from other forms of tribal regulation and that because tribal courts have jurisdiction over tribal regulation, a tribal court should thus have jurisdiction over a tort claim. Further, the Choctaws argue that whether tort law is pervasive is irrelevant to the question at hand because nonmembers will not be subjected to all of tribal tort law but rather only to the extent that the Montana categories would allow—in instances with the required nexus and an event that triggers the tribe’s inherent sovereign authority. Thus, the Choctaws argue that tort law would not over-construe the Montana category.

PRINCIPLE THREE: DOES THE INHERENT AUTHORITY STEM FROM THE TRIBE’S “INHERENT SOVEREIGN AUTHORITY TO SET CONDITIONS ON ENTRY, PRESERVE TRIBAL SELF-GOVERNMENT, OR CONTROL INTERNAL RELATIONS?

Dollar General posits that imposing tort law liability on nearly everything a corporation does on tribal land extends the tribes’ inherent sovereign authority well beyond what it is needed to set conditions on entry, preserve self-government, or to control internal relations. Next, Dollar General recognizes that tribes may want to govern nonmember conduct, but argues that over the course of history, tribes have been expected to turn to state and federal government law when governing nonmembers.Thus, Dollar General posits that the third principle favors the Court finding that the tribal court does not have the authority to hear the civil tort case.

On the other hand, the Choctaws contend that tribal jurisdiction over the tort claim arises from the tribe’s inherent sovereign authority to govern its territory. The Choctaws argue that conduct on tribe-owned land implicates a tribe’s inherent sovereign interest. Therefore, because the alleged sexual assault conduct occurred on tribal land, the Choctaws assert that the incident implicates the tribe’s sovereign authority. Thus, the Choctaws argue that the third principle also favors allowing tribal jurisdiction.