Supreme Court seems to favor limits on tribal court lawsuits

[garbon]

https://uk.news.yahoo.com/supreme-court-seems-favor-limits-tribal-court-lawsuits-163752271--finance.html#QkBSf2X

The Supreme Court appears ready to impose limits on lawsuits in a Native American court against people who are not members of the Indian tribe.

The justices heard arguments Monday in a closely watched appeal by Dollar General Corp. over a civil lawsuit in the court of the Mississippi Band of Choctaw Indians.

The Tennessee-based company was sued in tribal court in 2005 over allegations that a store manager made sexual advances toward a 13-year-old boy placed in his store by a tribal youth employment program. Dollar General asked federal courts to block the lawsuit. The boy's family is seeking $2.5 million.

Justice Anthony Kennedy and his more conservative colleagues indicated they would side with the company partly.

The Supreme Court ruled more than 40 years ago that nonmembers can only be sued in tribal court when they have agreed to dealings with the tribe, including through a contract, lease or other business arrangement.

Lower courts ruled that such a connection exists between Dollar General and the Mississippi Choctaws. The Obama administration and Mississippi, among six states, are supporting the tribe.

But Kennedy and Chief Justice John Roberts voiced concerns about the fairness of having people who are not members of the tribe being judged by tribal courts.

"The Constitution runs to the people," Kennedy said. "People have a right to insist on the Constitution, even if the federal government or Mississippi doesn't care."

Thomas Goldstein, representing Dollar General, said the situation is akin to when a resident of one state is sued in the state court of another. The case can be moved to federal court.

But Sonia Sotomayor, among the liberal justices who appeared to favor the tribe, said the situations are not analogous because the 567 federally recognized tribes are sovereign nations.

"We don't dictate to other sovereigns what kind of system they should have," Sotomayor said.

Dollar General, also backed by six states and industry groups that do business on tribal lands, warned that a rush of lawsuits in tribal court could result from a decision favoring the Mississippi Choctaws. Goldstein said the Mississippi Choctaws may have smooth-running and generally fair courts, but many tribes do not.

But Neal Katyal, representing the tribe, said prior high court decisions already limit when a nonmember can be sued. Even when those suits are filed, the non-Indian party wins most of the time, the tribe said in its court filing. Looking at nearly 5,000 lawsuits starting in January 2013, the non-Indian party won 85 percent of the time, the tribe said.

A broad win for Dollar General could severely hamper the authority of tribal courts to resolve cases in which a member makes claims about a company that does business on tribal land, Katyal said.

A decision in Dollar General Corp. v. Mississippi Band of Choctaw Indians, 13-1496, is expected by late spring.

AP seems to be one of the few sources that reported this as news rather than opinion - with most opinion pieces making it clear it was evil for the supreme court to even be looking at this case.

[garbon]

Here's the Guardian's op-ed

Native Americans' sovereignty is at risk, and the high court must help save it

Sovereignty isn't a difficult concept. If a US citizen crosses the northern border for work and commits a crime, that person should expect to be subject to a Canadian court applying Canadian law. By simply crossing the border, the US citizen consented to the jurisdiction of another authority and is expected to follow the laws of the land.

But for Native Americans with sovereign tribal land, the concept isn't so simple, thanks to a 1978 US supreme court ruling that tribes can't prosecute non-natives who commit crimes on their sovereign land. And a new case before the high court Monday has raised fears that Native people's right to police their own territory will be even further compromised.

In 2000, the multi-billion dollar retailer Dollar General opened a store on the Mississippi Choctaw reservation. Three years later, the manager of that store, Dale Townsend, agreed to participate in a tribal program that placed tribal youth in clerkships with stores operating on the reservation. Townsend, the tribe claims, sexually assaulted a 13-year-old boy assigned to work in the store through the program.

The US attorney's office in Mississippi could have filed criminal charges against Townsend but declined to do so, meaning Townsend would never be held accountable in criminal court, because the US supreme court ruled in 1978 that Indian tribes cannot arrest and prosecute non-natives who commit crimes on Indian reservations.

That decision created a vacuum of law enforcement on reservations across the United States, one which has seriously impacted native women. One in three native women reports being raped at least once in her lifetime, and they are far more likely to be assaulted than any other ethnic group in the country. Over 80% of the alleged rapes or sexual assaults against native women are perpetrated by non- natives, according to Justice Department statistics, which means violent crimes go unpunished if they occur on reservations, unless victims sue civilly for damages.

This was the situation facing the boy and his family. With no possibility for a criminal conviction, the boy and his parents then decided to sue Townsend and Dollar General for civil damages in tribal court. They argued the company was liable for Townsend's alleged crimes and negligent in his hiring, training and supervision.

Before going to trial, however, Dollar General filed suit in federal district court, seeking an order halting the tribal action. When the federal district court refused order a halt, Dollar General appealed to the US court of appeals for the fifth circuit. The appellate court also ruled against Dollar General, reasoning that the tribe's ability to hear these types of cases in its courts is "plainly central to the tribe's power of self-government".

But Dollar General wasn't done. It then asked the supreme court to hear the case. Each year, the court is asked to hear about 8,000 cases, and it accepts fewer than 100. In an ominous turn of events, the court agreed in spite of the lower courts' rulings and over the objections of the US solicitor general, who is responsible for arguing the federal government's cases before the high court. The case, which is scheduled to be argued on 7 December, rightly frightens native tribes all across the United States because it could trample on their right to self-government.

The brief filed by Dollar General asks the supreme court to rule that tribal courts cannot hear cases filed against non-Indians unless Congress has expressly authorized such a suit or if the non-Indian has expressly consented to such a suit, neither of which applies here. The tribe claims, on the other hand, that it has – and must retain – the authority to resolve these types of disputes in a tribal court, particularly cases involving such substantial interests as protecting tribal youth from sexual predators. Otherwise its sovereignty is a cruel joke.

The ACLU filed an amicus brief in support of the tribe. In our view, this issue should be decided based on the principle of "fair notice". Did Dollar General and the manager have fair notice that a sexual assault by the manager could subject them to tribal court authority? We believe so on multiple grounds.

The supreme court has repeatedly recognized tribal sovereignty over the past two centuries. Prior decisions have upheld a tribe's right to tax non-native people engaging in commerce on Indian reservations and to resolve the inevitable disputes that occur from such economic activities. And if a government can tax an individual or business, it has the power to subject them to a civil court proceeding.

Then there's Dollar General's deliberate decision to establish a store on Choctaw land in pursuit of profit. According to the lease agreement signed by Dollar General, the company agreed that "[e]xclusive venue and jurisdiction shall be in the Tribal Court of the Mississippi Band of Choctaw Indians" when disputes over the lease arise. The company and its store manager also agreed to the work program that put the 13-year-old in the manager's care. Therefore, Dollar General and Townsend had fair notice that this type of misconduct could result in a lawsuit in tribal court seeking damages.

There's a reason Dollar General Corporation v Mississippi Band of Choctaw Indians has been called the most important case in decades for native people by many Indian tribes and tribal organizations: a victory for Dollar General would be devastating for native tribes. It would mean that tribes lack the governmental authority to regulate misconduct by non-natives and protect their people.

This wouldn't be sovereignty. It would be subservience.

[celedhring]

I have a question for our US lawyers here:

The US attorney's office in Mississippi could have filed criminal charges against Townsend but declined to do so, meaning Townsend would never be held accountable in criminal court, because the US supreme court ruled in 1978 that Indian tribes cannot arrest and prosecute non-natives who commit crimes on Indian reservations.

Would that be the case anywhere else in the US, outside of a reservation? Could, say, the state attorney have brought charges instead if it happened anywhere else?

Incidentally I have always taken issue by the fact that in the US only public prosecutors can bring criminal cases to court, but that's not the focus of the debate here I guess.

[garbon]

Incidentally I have always taken issue by the fact that in the US only public prosecutors can bring criminal cases to court, but that's not the focus of the debate here I guess.

According to wiki some states still allow private prosecution but that federally right was removed by a supreme court case in 1980s.