Does an Indian tribal court have jurisdiction to adjudicate civil tort claims against non-tribal members, including nonmembers who enter into a voluntary relationship with a tribe or the tribe’s members?
The Supreme Court’s ruling in this case may impact the scope of tribal sovereignty and the economic relationships between tribes and nonmembers. Dollar General argues that Indian tribal courts should not be permitted to decide tort claims involving non-tribal members, while the Mississippi Band of Choctaw Indians argues that Indian tribal courts should be permitted to decide civil tort claims. The parties support their arguments with divergent applications of the exceptions set forth in Montana v. United States. The Court, when deciding which application of Montana is proper, will consider whether any type of consent existed between the parties, whether allowing the tribal court to hear tort claims will over-broaden the Montana category exception, and whether the tribe’s inherent sovereign authority permits tribal courts to decide tort claims.
Questions as Framed for the Court by the Parties
Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members.
Petitioners Dollar General Corp. and Dolgencorp, LLC (collectively, “Dollar General”) operate a retail store on the Choctaw reservation in Mississippi, pursuant to a lease agreement and a business license with the tribe. The tribe operates the Youth Opportunity Program (“YOP”), a job-training program aimed at placing young tribe members in short-term positions with local businesses for educational purposes. In 2003, Dale Townsend, the store manager, agreed to participate in the YOP. Respondent John Doe, a thirteen-year-old tribe member, was then assigned to work at the Dollar General store. Doe alleges that, during his placement at the Dollar General Store, Townsend sexually molested him.
In 2005, Doe sued Dollar General and Townsend in Choctaw Tribal Court. Doe alleged that Dolgencorp is vicariously liable for Townsend's actions, and that Dolgencorp negligently hired, trained, or supervised Townsend. Additionally, Doe alleged that the assault caused him severe mental trauma, and he sought a minimum of 2.5 million dollars in actual and punitive damages. Dollar General and Townsend moved to dismiss Doe’s claims for lack of subject-matter jurisdiction, but the tribal court denied both motions. Dollar General and Townsend then successfully petitioned the Choctaw Supreme Court for interlocutory review of the lower court’s denial of the motions to dismiss. The Choctaw Supreme Court held that the lower court’s exercise of subject-matter jurisdiction was proper, and dismissed the appeal and remanded the case to the lower court.
In 2008, Dollar General and Townsend filed suit in the District Court for the Southern District of Mississippi against the Mississippi Band of Choctaw Indians, the Tribal Court, Tribal Court Judge Christopher A. Collins, and John Doe (collectively, “Choctaws”). Dollar General and Townsend alleged that the tribal court lacked jurisdiction to adjudicate Doe’s claims and each filed a motion for a temporary restraining order and preliminary injunction. The district court granted Townsend’s motion, holding that the tribal courts had no jurisdiction over Townsend because he did not have a sufficient consensual relationship with Doe or the Tribe. ; The district court denied Dollar General’s motion, however, holding that Dollar General implicitly consented to the tribe’s jurisdiction when it agreed to provide a position for Doe at its store.
Dollar General and the Choctaws then filed cross motions for summary judgment. The district court granted the Choctaws’ motion but denied Dollar General’s motion. The district court found that, as a result of Townsend’s agreement to participate in the YOP on Dollar General’s behalf, Dollar General implicitly consented to the jurisdiction of the tribe with respect to matters associated with this relationship. Since Doe’s tort claims “arose directly from this consensual relationship,” the district court held that the required sufficient nexus between the consensual relationship and exertion of tribal authority was satisfied.
Dollar General appealed and asserted that the district court erred in its legal determination that Dollar General satisfied the consensual relationship exception. A divided panel of the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s judgment. The Fifth Circuit denied Dollar General’s request for rehearing en banc. The Supreme Court then granted certiorari.
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.
The Supreme Court’s resolution of this case may impact the scope of tribal sovereignty and the economic relationships between tribes and nonmembers. Dollar General maintains that without the defendant’s unambiguous consent or congressional authorization, tribal courts lack jurisdiction over nonmembers. The Choctaws counter that the ability to exercise adjudicative authority over nonmembers who have implicitly or explicitly consented to jurisdiction is essential to the Indians’ right to govern themselves.
Amici in support of Dollar General believe that tribes can still retain sovereignty sufficient to govern their own internal affairs without asserting jurisdiction over nonmembers who have not expressed their clear and unequivocal consent. The Association of American Railroads (“AAR”) contends that, without a rule requiring clear and unequivocal consent from nonmembers, those nonmember litigants would be at risk of prejudice. AAR asserts that the great variation in tribal courts and their legal systems, as well as the absence of federal review of federal questions arising from tribal court determinations, could deprive nonmember litigants of their federally protected civil rights. Additionally, the States of Oklahoma, Wyoming, Utah, Michigan, Arizona, and Alabama (“Oklahoma”) assert that tribal courts do not offer nonmember litigants the same “jurisprudential certainty” that they would have in state or federal courts. For instance, Oklahoma notes that less than half of Oklahoma’s tribes have a full, written legal code, which would make it difficult for a nonmember litigant to defend against a civil tort claim.
In opposition, amici in support of the Choctaws contend that Dollar General’s narrow reading of the consensual relationship exception would severely constrain tribal sovereignty. ; The Puyallup Tribe of Indians, joined by several other tribes and tribal courts, contend that supporting tribal courts is an essential part of the modern federal policy of tribal self-determination. . Additionally, the States of Mississippi, Colorado, New Mexico, North Dakota, Oregon, and Washington (“Mississippi”) argue that a tribe’s ability to regulate the conduct of nonmembers who enter into a consensual relationship with a tribe or its members is essential for that tribe to function as an interdependent sovereign. Additionally, the United States claims that petitioner’s concerns about prejudice against nonmember litigants are without merit. The United States notes that many tribal courts, including the Mississippi Band of Choctaw Indians’ Tribal Court, have developed into effective institutions for administering justice that are respected by federal, state, and local governments.
Amici in support of Dollar General assert that expanding tribal court jurisdiction will chill companies’ willingness to invest in tribal communities. . The South Dakota Bankers Association (“SDBA”) contends that broader interpretation of the consensual relationship exception adds another layer of uncertainty to the legal landscape of tribal courts. This uncertainty increases the risks of doing business with tribes or tribal members, SDBA asserts, which will lead to further economic hardships for those living on and near Indian reservations. The Retail Litigation Center, Inc. (“RLC”) echoed these concerns, maintaining that a straightforward test of “clear and unequivocal express consent” will limit needless litigation in both tribal and federal courts over which system has jurisdiction.. Moreover, RLC notes that since this test will avoid the uncertainty caused by a test that infers consent by evaluating parties’ conduct, more retailers will feel comfortable investing in tribal communities.
Amici in support of the Choctaws counter that the express consent standard proposed by Dollar General will cause adverse effects that harm tribal communities and their ability to regulate their economy. The National Congress of American Indians (“NCAI”) contends that a less stringent standard is needed to protect against trespass and related conduct on tribal lands that harms tribal natural and cultural resources. NCAI claims that trespass is often accompanied by vandalism of sacred sites, theft of cultural artifacts and natural resources, illegal cultivation of marijuana, illegal dumping of hazardous waste, and illegal hunting, fishing and poaching. Moreover, NCAI argues that an express consent requirement would undermine the ability of tribes to exercise their regulatory powers over nonmembers permitted on tribal land for commercial and recreational purposes. Tribes often impose licensing or taxation requirements on such nonmembers, but NCAI maintains that an express consent requirement would provide a perverse incentive for nonmembers to “withhold consent” by engaging in the regulated activity without a license or permit.
In this case, the Supreme Court will decide whether Indian tribal courts have jurisdiction over civil tort claims against non-tribal members, including nonmembers who enter into consensual relationships with the tribe or the tribe’s members. To resolve this issue, the Court will consider whether it finds Dollar General’s or Choctaw’s argument more persuasive with respect to the application of the Montana categories. This ruling will impact the scope of tribal sovereignty and the economic relationships between tribes and nonmembers.
- Suzette Brewer: The Trouble With Dollar General: SCOTUS Takes on Tribal Jurisdiction in Sexual Assault Case, Indian Country (Oct. 26, 2015).
- Cass Madden: Dollar General Corporation v. Mississippi Band of Choctaw Indians. Cultural Survival (June 23, 2015).