On June 15, 2015, the U.S. Supreme Court agreed to review the case of Dollar General Corp. v. Mississippi Band of Choctaw Indians, in which the Fifth Circuit upheld tribal court jurisdiction over tort claims against a nonmember corporation doing business on the reservation. The case could have significant and wide-ranging repercussions for tribal court jurisdiction over nonmembers in civil cases and will be closely watched by Indian Country.
In this case, a 13-year-old tribal member of the Mississippi Band of Choctaw Indians and his family brought suit in tribal court against Dolgencorp, operator of a Dollar General store where the youth interned, which was located on tribal trust land on the reservation. The claim was that a manager at the store sexually molested the youth during the course of his internship. The youth was placed at the store under a tribal internship program in which the manager had agreed to participate. The youth and his family brought suit against Dolgencorp seeking damages.
The Choctaw Supreme Court ruled it had jurisdiction under the U.S. Supreme Court’s 1981 decision in Montana v. United States. Dolgencorp then filed an action in the U.S. District Court. The District Court likewise held that the tribal court had jurisdiction under the Montana case. Dolgencorp then appealed the District Court’s ruling to the U.S. Appeals Court for the Fifth Circuit, which affirmed.1
The Fifth Circuit, like the Choctaw Supreme Court and the District Court, based its opinion on an analysis of Montana, in which the U.S. Supreme Court held the Crow Tribe lacked jurisdiction to regulate nonmembers’ hunting and fishing on non-Indian fee land located within the reservation. In discussing non-Indian fee land, the U.S. Supreme Court held that as a “general proposition . . . the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” However, the Court wrote two exceptions into that general rule, the first being that “[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 Fifth Circuit held that the tribal court had jurisdiction pursuant to the first Montana exception, finding that Dolgencorp entered into a consensual relationship with the Tribe by participating in the internship program. Dolgencorp argued that the Supreme Court’s opinion in the 2008 Plains Commerce Bank case, another case also involving tribal jurisdiction over nonmembers, required an additional showing that the specific consensual relationship interferes with tribal governance and internal relations. The Fifth Circuit disagreed, holding that such a showing was not required for the first Montana exception. It also held that application of tribal civil law is a permissible means of regulating conduct for purposes of the first Montana exception.
One of the three Fifth Circuit judges filed a forceful dissent, asserting that the Supreme Court “has never upheld Indian jurisdiction over a nonmember defendant.” He believed that a consensual relationship must interfere with tribal governance and internal relations. He also asserted that a sufficient connection between the consensual relationship and regulation of the conduct was lacking.
Dolencorp asked the U.S. Supreme Court to review the Fifth Circuit’s decision. It urged the Supreme Court to consider broadly whether tribal courts may ever exercise civil jurisdiction over nonmembers, regardless of the Montana exceptions. The Supreme Court granted review, despite the fact that the U.S. Department of Justice filed a brief recommending that the Court not review the case because the Department believed the Fifth Circuit was correct that the tribal court had jurisdiction. The Department also asserted that the Tribe had jurisdiction on the separate basis that the improper conduct occurred on tribal trust land, so that the Montana exceptions do not come into play.
The Court will probably publish its decision late this year or early in 2016. It is of course too soon to tell how far-reaching a Supreme Court opinion might be. Hopefully, it will affirm the Fifth Circuit decision, holding that tribes have civil jurisdiction over nonmembers who enter into consensual relationships with the tribe. However, given the broad scope of the question presented as framed in Dolgencorp’s petition for Supreme Court review, and the generally conservative views of a majority of the Supreme Court, and the fact that at least some of the justices seemingly had problems with the Fifth Circuit decision, the Court could make the existing rules governing tribal court civil jurisdiction over nonmembers even tighter than they are now.
Please let us know if you would like additional information regarding this potentially important case.
1The Fifth Circuit later denied Dolencorp’s request for a rehearing en banc, although five judges dissented from that decision.