In 2003, the local store agreed to bring young tribal members to work as interns. Soon after, a 13-year-old Choctaw boy (known in the case as “Richard Roe”) alleged that the store’s non-Indian manager had repeatedly made sexual advances to him, offered him money for sex, grabbed his crotch area, and subjected him to sexually offensive remarks. Roe and his family filed suit in the tribal court against the manager, and against the corporation for alleged negligence in hiring, training, and supervising him.
If proved, of course, the manager’s behavior would be criminal. But tribes can’t prosecute non-Indians for criminal offenses, even if they are committed on tribal land. All they can do is ask the federal Justice Department to bring a case—and U.S. Attorneys are not eager to do that.
As for the case against Dollar General, it’s a fairly routine tort suit. In any state, the lease and the store’s presence would be enough. And sexual misconduct directed at Indian children, one can certainly argue, “threatens ... the health of welfare of the tribe.”
When the Choctaw Supreme Court found that the tribe had jurisdiction, Dollar General then went to federal district court seeking an injunction against the suit. The district court dismissed the case against the manager, but it held that the tribal court could hear the case against the company. The Fifth Circuit agreed, over a dissent by a conservative judge, Jerry Smith. Before the Supreme Court, Dollar General argues that its lease agreement is not enough; in the case of a tribal court, its consent must be “unambiguous,” rather than implied from its dealings with the tribe. The manager didn’t have corporate authorization to join the tribal youth-work program, so there’s been no consent by Dollar General to be sued for acts relating to the program.
This case shows the clash of two views about tribal self-government. As Ed Gehres, a tribal descendant of the Eastern Cherokee who is an experienced Washington lawyer in tribal business deals and litigation, pointed out on SCOTUSblog, Dollar General is arguing that Congress long ago stripped tribes of any power to try cases against non-Indians—“even for matters affecting tribal citizens and occurring on Indian land.” The tribe and the government argue that unless Congress explicitly takes authority from tribes, “the full reservoir of a tribe’s inherent sovereign authority existing before interaction with the United States remains.”
The National Congress of American Indians, in its amicus brief, warns that under Dollar General’s rule, tribal governments couldn’t regulate off-reservation businesses that dump waste on tribal land; lawbreakers don’t “unambiguously consent” to being sued. Tribal courts could not hear cases against abusive non-Indian spouses who live on the reservation; tribal courts couldn’t evict non-tribal members squatting in tribal housing.