By Dina Gilio-Whitaker

Photo credit: Mike Mozart

When a thirteen-year-old member of the Mississippi Choctaw Band of Indians entered into a job-training program with Dollar General, no one could have foreseen how it would turn out. Referred to as John Doe to protect his identity, the boy alleged that he’d been sexually molested and harassed by Dollar General manager Dale Townsend. Ordinarily, a case like this involving a major crime on an Indian reservation would fall under federal jurisdiction, but the US Attorney’s office in Jackson failed to file a lawsuit, and the boy’s parents sued Townsend and Dollar General for damages in tribal court.

Three lower courts, including the tribal Supreme Court, a Mississippi state court, and the Fifth Circuit Court of Appeals, agreed that the lawsuit against Townsend had no jurisdictional standing. Federal law holds that non-Indians cannot be tried in tribal courts. But the case against Dollar General, on the other hand, was another matter.

The lower courts all agreed that because Dollar General entered into a contractual agreement with the Mississippi Choctaw it was subject to tribal law, based on the precedent set in Montana v. The United States (1981). The issue before the Supreme Court in Dollar General v. Mississippi Band of Choctaw Indians was whether or not 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.

In a 4-4 decision, the SCOTUS affirmed that yes, tribal courts do have jurisdiction in these kinds of consensual relationships (even if the deadlock sets no precedent). Now the case can proceed in tribal court.

It was a dangerous kind of case to be in front of the Supreme Court from a Native standpoint. For the past several decades, there is a sort of unspoken rule in Indian country to avoid the Supreme Court at all costs because of the kind of damage that can be (and has been) inflicted, especially where issues of jurisdiction are concerned. Issues of jurisdiction are inevitably about sovereignty, and in a country that still asserts domination over the originally free and independent nations of this land, negative decisions have far-reaching effects.

As John Echohawk, executive director of the Native American Rights Fund, said, “Although this result does not create a national precedent, it avoids another stinging loss from a Supreme Court which refuses to recognize the lawful governing authority of Indian tribes over all persons who come onto Indian lands, especially those like Dollar General who enter into and profit from business dealings with tribes and their members on their reservations.”

One of these stinging losses came in 1978 in the case of Oliphant v. Suquamish Indian Tribe, where the court ruled that “Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.”

The problem here is twofold. Not only does the highest court of a colonial power assert its authority to decide legal matters pertaining to Indian territories, but it also affirms the power of Congress to legislate the lives and territories of indigenous peoples (known as the plenary power doctrine)—all without their consent. This is the foundation of a settler colonial system which crystallizes into a structure of domination, constantly interfering with the pre-existing sovereignty of those previously free and independent nations.

With regard to court decisions and these troubling legal doctrines—and this is something we cover in our upcoming book “All the Real Indians Died Off” and 20 Other Myths About Native Americans—it comes down to the racist and ahistoric way the Supreme Court decides cases, even today. Not only does the court rely on legal fictions such as those that construct the doctrine of discovery (discussed in Myth #3), but when it comes to Indian law, the SCOTUS has failed to evolve beyond nineteenth-century racist stereotypes and beliefs in the same way it has in other realms, such as segregation laws.

Native legal scholar Robert Williams, Jr. wrote about the racism of the Supreme Court in his book Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America. He contends that the entire body of federal Indian law that the Supreme Court helps construct is built on the concept of Indian inferiority and savagery. Regarding Oliphant, he writes: “According to Oliphant, Indian tribes, as lawless and uncivilized savage peoples, were implicitly divested of any asserted rights that might conflict with the superior sovereign interests of the United States under the discovery doctrine” (pg. 98).

Indian country has narrowly avoided another legal catastrophe only because of the absence of Scalia who was known to be virulently anti-Indian. Depending on who fills the empty seat, we might not be so lucky next time.

About the Author

Dina Gilio-Whitaker (Colville Confederated Tribes) is an independent writer and researcher in Indigenous studies, having earned a bachelor’s degree in Native American Studies and a master’s degree in American Studies from the University of New Mexico, and also holds the position of research associate and associate scholar at the Center for World Indigenous Studies. Her work focuses on issues related to Indigenous nationalism, self-determination, and environmental justice, and more recently the emerging field of critical surf studies. She is a co-author (with Roxanne Dunbar-Ortiz) of the forthcoming book from ‘All the Real Indians Died Off’ and 20 Other Myths about Native Americans. An award-winning journalist, she is a frequent contributor to Indian Country Today Media Network and Native Peoples Magazine. Follow her on Twitter at @DinaGWhit and visit her website.