By Jared Miller
Last week, U.S. Attorney General Loretta E. Lynch remarked on the success of a pilot program allowing select tribes to prosecute non-Indians for domestic violence under the reauthorized Violence Against Women Act (VAWA).
“[Y]ou demonstrated that with greater control over your own lands and closer partnership with the federal government, justice can and will be done,” Lynch said of the Tulalip and Pascua Yaqui tribes for their efforts during the test period. The comments are remarkable for at least two reasons.
First, they acknowledge that tribes are prosecuting non-Indians for the first time since the Supreme Court stripped away that power in Oliphant v. Suquamish Tribe in 1978. Second, because at this very moment the Supreme Court is poised to hear a case, Dollar General v. Mississippi Band of Choctaw Indians, in which the Court could eliminate tribal court civil jurisdiction over non-Indians.
In other words, just as Congress and the Executive Branch embrace expanded tribal court jurisdiction over non-Indian criminals, the Supreme Court is considering whether to end tribal jurisdiction over civil offenders.
Dollar involves a Native American plaintiff suing a Dollar General store in tort for an alleged sexual assault by a store manager. At the time, Dollar had an agreement with the Choctaws to operate on tribal land.
The Fifth Circuit upheld tribal court jurisdiction under the restrictive “consensual relationship” exception to the general prohibition on jurisdiction over non-Indians created in Montana v. United States. Ignoring the advice of the Solicitor General, the Supreme Court granted certiorari in June.
Dollar’s arguments rely heavily on the holding in Oliphant, which diminished criminal justice in much of Indian country, and which is based on racist notions about Indians and tribes.
“[T]he policy of Congress had been to allow the inhabitants of the Indian country ‘such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization,” Chief Justice William Rehnquist wrote to support of his holding in Oliphant.
Importantly, Oliphant created a safe haven for non-Indians who victimize Indians on tribal land. Tribal officers lack jurisdiction to make arrests and federal authorities often don’t prioritize criminal investigations on Indian land, even in serious cases involving rape, assault, and drugs.
For example, members of a Mexican drug gang moved to the Wind River Reservation in Wyoming in the early 2000s, married into tribal families, and then began distributing meth manufactured in Mexican “super labs.” Federal authorities allowed the problem to metastasize until a crackdown in 2006 crippled the organization. Deep damage had already been done.
If Dollar prevails before the Supreme Court, non-Indian corporations could see similar opportunities to cut liability by operating in Indian country. The last thing most Indian reservations need is a loophole allowing corporate abuses.
Of course Dollar argues that, like all Americans, tribal members have a right to sue in state court. But that ignores the fact that some tribal members won’t turn to the state system for help, not to mention deterrents like higher costs and potential bias by non-Indian judges and juries.
At the very least, the Supreme Court should leave in place the highly restrictive Montana standard or tribal court jurisdiction. A wiser decision by the Court would expand tribal civil jurisdiction over non-Indians. We know from the VAWA pilot projects prove that this approach can work.
But as the Supreme Court made clear in Nevada v. Hicks: "we have never held that a tribal court had jurisdiction over a nonmember defendant." Sadly, I think the Justices will double down against tribal court authority in Dollar General.
Jared Miller’s practice focuses on tribal court litigation and representing businesses and tribal governments in public affairs. Jared is licensed in more than a dozen tribal jurisdictions, where he litigates civil matters. He can be reached at (206) 919-5044 and firstname.lastname@example.org.