American Indian tribal courts will retain the authority to hear suits from tribal members against non-tribal businesses, after a 4-4 split in the Supreme Court. Dollar General v. Mississippi Band of Choctaw Indians leaves intact a decision from the Fifth Circuit of Appeals that upholds the jurisdiction of a Choctaw tribal court to hear a suit against the retailer Dollar General concerning an alleged sexual assault by one of its employees against a tribal member in a store on tribal grounds. The suit from the plaintiffs—the family of the alleged victim—will continue in tribal court.

The relatively narrow facts of the case obscure its serious implications. It revolves around the idea of sovereignty—the right of a people to govern itself—and it connects to a series of recent decisions about the ability of tribes and of United States territories to order their own affairs. Buried in the questions about jurisdiction over a $2.5 million civil suit are deeper questions about how the country recognizes tribal authority and how and where sovereignty arises.

The case began in 2003, when a Dollar General store on the tribal grounds enrolled a then-13-year-old tribal boy member into its youth-opportunity program. He accused a store employee, non-member Dale Townsend, of sexual advances and sexual harassment and his family brought the case to tribal court in 2005. Dollar General was named as a defendant through vicarious liability, and it filed to dismiss the suit on the grounds that the tribal court did not have the authority to try it.

The earlier case of Montana v. United States curtailed tribal authority in civil suits to those based on “consensual relationships” bound by contracts or to matters that directly affect the health and welfare of the tribe. A higher tribal court, a District Court, and the Fifth Circuit all recognized the jurisdiction of the lower tribal court on that basis. The Mississippi Choctaw had a contract with Dollar General that explicitly bound it to tribal court, and it argued that a sexual assault case concerned their health and welfare. If the Supreme Court had ruled against the jurisdiction of the tribal court it would have left almost no basis for jurisdiction over non-tribal entities, even those that operate on tribal grounds.

The most challenging parts of Dollar General’s case focused on the argument that Montana v. United States should be ignored because tribal courts are inherently different from state and federal courts and tribal law is based on often-unwritten customs that may be “undiscoverable” to non-tribal members and businesses. They also argued that tribal sovereignty is subordinate to Congressional authority  as a practical matter, and is inconsistent with federal concepts of sovereignty.

The Fifth Circuit clearly disagreed, offering a decision that reinforces some recent readings of sovereignty within the United States. The court held that Native Indian tribes have an inherent sovereignty that predated the foundation of the United States and has not yet been extinguished by the United States; thus that sovereignty can only be explicitly limited by congressional action. In this situation, Congress has not extinguished tribal right to try civil cases on tribal grounds.

That same reading of sovereignty was used recently to deny Puerto Rico the ability to try defendants for crimes also proceeding in federal courts in Puerto Rico v. Sanchez Valle. The Court argued that Puerto Rico, unlike tribal nations in the United States, did not have a special claim to sovereignty that existed prior to the United States, as it was granted to the country as a colony with no such rights. While organized tribes are recognized as “quasi-sovereign” entities, the United States territories are not.

Sovereignty is still a thorny concept, and it likely that further challenges from tribal courts and the territories will reach the Court. The idea that sovereignty explicitly derives from history is interesting in considering if places like Puerto Rico or Washington, D.C., can be given statehood or sovereignty equivalent to the states or tribal areas. In this case, it is the last defense for Native groups seeking to protect their rights to govern and protect themselves from the bad actions of entities seeking to do business with them.