Supreme Court Splits 4-4 on Tribal Jurisdiction Case
The Supreme Court issued a 4-4 ruling in Dollar General Corporation v. Mississippi Band of Choctaw Indians. The Court’s decision leaves in place the Fifth Circuit’s ruling that in some instances nonmembers of Indian tribes (including state and local governments) can be sued in tribal court (as opposed to state or federal court) for tort (civil wrongdoing) claims.
John Doe, a thirteen-year-old tribe member, alleges that his supervisor sexually molested him while he was working as part of a job training program at a Dollar General located on a reservation. Doe sued Dollar General in tribal court alleging a variety of torts including negligent hiring, training, and supervision.
In Montana v. United States (1981), the Court held that generally nonmembers may not be sued in tribal court except that “tribe[s] 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.” The question in this case is whether “other means” include suing nonmembers for civil tort claims in tribal court.
In Nevada v. Hicks (2001), the Court noted that it has “never held that a tribal court had jurisdiction over a nonmember defendant” in any context, so it remains an “open question” whether tribal courts may ever exercise civil jurisdiction over nonmembers. In Oliphant v. Suquamish Indian Tribe (1978) the Court held that tribal courts do not have jurisdiction over criminal cases involving nonmembers.
The Fifth Circuit determined that the tribal court had jurisdiction in this case, looking only at whether there was a commercial relationship between Dollar General and the tribe, and a whether there was a nexus between Dollar General’s participation in the job training program and Doe’s tort claim. The Fifth Circuit concluded that even an unpaid internship creates a commercial relationship. As for a nexus the Court reasoned, “[i]t is surely within the tribe’s regulatory authority to insist that a child working for a local business not be sexually assaulted by the employees of the business.”
While this case involved a tort claim against a corporation, state and local governments also may be regularly involved in civil disputes with tribes and would prefer that those claims be adjudicated in the state or federal court system.
Interestingly, the Supreme Court tried to resolve this issue in 2008 in Plains Commerce Bank v. Long Family Land & Cattle Co., but the Court resolved the case on other grounds. The Court is more than likely to take this issue up again when it has nine Justices.