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2015-2016 Issue III National

It’s a Hard Bargain: The Choctaw Tribe Takes Dollar General to the Supreme Court

Forty years after the Mississippi Burning trials rocked the United States, the town of Philadelphia, Mississippi is back in the spotlight. The dusty little town of 7,477 residents sits at the heart of the once great Choctaw nation, much reduced over the centuries by steady, state-sponsored encroachment on its land. This year, the Choctaw will go before the Supreme Court as it once again fights to preserve its autonomy, this time from the reach of corporate America.

A local Dollar General store sits on tribal trust land inside the Choctaw reservation near the town of Philadelphia, Mississippi. In late 2003, management agreed to bring young members of the tribe into the store as a part of the Choctaw job training program. The program placed young residents into various internships with the hope that the teenagers would learn valuable skills.

Soon after, a thirteen year old male, Richard Roe, alleged that the store’s non-Choctaw manager made sexual advances towards him. Roe accused the manager of soliciting sex and offering to pay Roe large sums of money in exchange for sexual acts. Roe’s family led suit against the manager and against Dollar General for negligence in hiring, training, and supervising the teen.

The suit threatens to shift the delicate balance between the government of the United States and the governments of Native American tribes that live within its borders. In essence, Dollar General seeks to demonstrate that Native American courts cannot adjudicate ordinary tort disputes involving non-Native Americans. The case could redefine interactions between the federal government and the indigenous groups that operate as sovereign nations within U.S. borders.

Relations between the federal government and Native Americans have historically been tense at best. To most Americans, the idea of a Bureau of Indian Affairs seems like a concept that belongs in the nineteenth century, and one that remains a diplomatic black mark on the nation. The delicate relationship between the indigenous peoples and the government of the United States is fluid, dependent on legal precedent and the interpretation of law rather than the letter of the law itself.

The shifting nature of capital and business investment in reservations has created ups and downs throughout the years. Native American reservations are generally poorer, more crime ridden, and more economically depressed than the rest of the country. However, at least in Philadelphia, the Choctaw reservation had shown signs of improvement. With the passage of the Indian Self-Determination and Education Assistance Act of 1975, the Choctaw tribe was provided direct grants to help develop plans for improving schools, attracting more jobs, and providing economic stimulus to the area. From 1979 to the early 2000s, the Mississippi Band of Choctaw Indians became one of the state’s largest employers, running over nineteen businesses and employing almost eight thousand people.

But Dollar General Corporation vs Mississippi Band of Choctaw Indians may mark a bleak turning point in U.S.-Native American affairs that could disrupt the growth of the previous decade. In order to understand the significance of this case, one must understand the nature of Indian reservations.

In the United States, Native American reservations are sovereign nations. The tribes themselves possess tribal sovereignty, which puts them outside the jurisdiction of the United States criminal justice system. In order for a business to operate on tribal land, they must agree to the conditions of the reservation – and so, in the case of Dollar General, the company had agreed to have legal disputes negotiated in tribal courts. In spite of this explicit agreement to comply with tribal law, Dollar General has still fought the tribe’s legal jurisdiction in the case.

While an assault case might seem like a fairly cut and dry criminal proceeding, in reality, any case involving a reservation is a far messier affair. According to the 1978 Supreme Court case Oliphant v Suquamish Indian Tribe, any crime committed by a “non-Indian,” legally defined as someone who is not a member of the tribe that governs the reservation, cannot be prosecuted in tribal court without having agreed to such conditions before the crime was committed. A 6-2 decision, Oliphant stands as the legal precedent for the limits of tribal jurisdiction.

In Oliphant, then-Associate Justice William Rehnquist argued that as “domestic dependent nations,” tribes lack complete sovereignty in criminal justice. As a result of this decision, the only action the Choctaw tribe could take against the suspected abuser was to petition the Justice Department for a criminal investigation and subsequent prosecution, something that the U.S. Attorney General’s office very rarely sees through, or even begins.

Gregory Ablavsky, Assistant Professor of Law at Stanford Law School, told The Politic, “The U.S. and the Attorney General are not in the habit of prosecuting low level crime.” Unfortunately for Roe, he said, cases like sexual assault and criminal matters are usually deemed “low level,” and the Attorney General’s office simply does not take notice.

On the basis of these precedents, there was little the tribe could do, legally speaking, against the manager. Instead, they turned their attention towards DollarGeneral in a civil suit.

In return, Dollar General came up with a defense that is based primarily on the argument that tribal courts are subservient to the United States Department of Justice and that Native American juries are inherently biased against corporations. Unfortunately for the Mississippi Band of Choctaw Indians, Dollar General’s second claim seems to have some support, as tribal courts have a rocky history with corporations. Few have ever sided with a corporation on any matter at all.

In an interview with The Politic, Chickasaw Nation attorney and small business owner Kari Fisher remarked on the injustice of the case. Fisher called reservations a “black hole” for justice, and felt that the federal government was continuing its long history of “encroaching” on the rights of Native American tribes. She cited the Supreme Court case Montana v United States, which ruled that tribal governments have authority over non-Indians where the authority of the tribe is threatened. Fisher believes that by blocking the prosecution of the assault, the Justice Department directly threatened the sovereignty of the Nation.

The Attorney General’s office is, by all accounts, fairly removed from Indian reservations, venturing in only to break up what they judge as the most serious of offenses.

“Federal prosecution tends to be directed toward elaborate criminal enterprises, and drug cartels. They venture into terrorism and complicated cases, rather than simple criminal charges,” said Ablavsky, the professor at Stanford Law. According to him, the sheer time and procedure involved in litigation in tribal courts makes the Justice Department reluctant to get involved.

Fischer echoed this statement, citing a “breakdown of communication between the Justice Department and the Indian reservations.” She added that the lack of an established pathway for information makes it much more difficult to collect information and accurately try a case.

But Carol Goldberg, the Jonathan D. Varat Distinguished Professor of Law at the University of California Los Angeles, had a slightly different perspective on the absence of the Justice Department from most tribal cases. In an interview with The Politic, Goldberg said that witnesses and attorneys in Indian Reservations are “naturally suspicious” of U.S. prosecutors. This distrust makes it difficult for the U.S. Attorney’s Office and Native American tribes to collaborate, and usually contributes to the absence of federal prosecution, she said. President Obama’s Indian Law and Order Commission, of which Goldberg was a member, issued a report in 2013 to recommend policy changes designed to improve tribal justice. In the report, Goldberg recommended that tribal course fully exit federal and state jurisdiction. A solution like this, she argued, would prevent future cases like Dollar General.

Previously, court watchers speculated that the Supreme Court would make a 5-4 decision in the case, in favor of Dollar General and bitterly split along party lines. But, as Goldberg stated, the February 13 death of Justice Antonin Scalia dramatically “changes the balance.” If the resulting decision is 4-4, then the outcome of the cases reverts to the decision of the lower court, which in this case, sided with the Choctaw tribe. This would be a pivotal moment, as rarely is the vote of one justice enough to radically alter the decision of the court. It is even rarer that the vote of one justice is all that stands in the way of a potentially standard-setting case that would reassess hundreds of years of American policy.

The true implications of Dollar General stretch far beyond the settlement of a single case. Should Dollar General emerge victorious, Native American tribes will have lost a great deal of their sovereignty, along with their right to litigation. Should the tribe win, businesses may flee the grounds of reservations, seeking places with hospitable legal climates that are more conducive to commerce. Businesses have long been skeptical about expanding into reservations knowing that courts could rule against them.

Whatever the result, Dollar General will redefine case law and alter relations between the federal government and tribal nations. Philadelphia, Mississippi serves as the testing ground for legal precedent in a case that threatens the unstable equilibrium between Native American tribes and the government of
the United States.