On Monday (December 7) the United States Supreme Court heard oral arguments in a case that will determine whether tribal courts will continue to be a place where Native Americans can seek justice in disputes involving people who are not Native.
The dispute at the heart of Dollar General Corporation v. Mississippi Band of Choctaw Indians involves the alleged sexual assault of a 13-year-old Choctaw boy by his White manager at Dollar General, a company with a market value of $20 billion that operated a store on Choctaw land. According to the AP, the boy had been placed in the store by a tribal youth program.
In its effort to have the Supreme Court overturn the decisions of multiple lower courts, Dollar General argues that it is not bound by any process or remedy set by the Choctaw court in which the boy’s parents brought a civil claim. The Supreme Court is being asked to decide whether Dollar General—and by extension, corporations and non-Natives on tribal land more broadly—must respect the sovereignty of tribal courts.
This case could be understood as an opportunity for the pro-business Roberts court to decide that corporations are beholden to fewer regulatory bodies, and thus fewer regulations. But because the boy’s family maintains that Dollar General’s negligence allowed one of its employees to sexually assault a child, thereby contributing to an epidemic of sexual violence against Native American women and children at the hands of non-Native perpetrators, the ruling has much broader implications.
“This is a case about a non-Indian assaulting an Indian child on tribal land,” attorney and Cherokee citizen Mary Kathryn Nagle* said Monday after watching the arguments. Nagle wrote a friend of the court brief [PDF] on behalf of the National Indigenous Women’s Resource Center. In the brief she writes, “… Sexual assault and domestic violence against Native women and children have more than a ‘discernible effect on the tribe [and] its members.’ Indeed, the effect has been well documented and characterized as a crisis. Therefore, when it comes to protecting Native women and children from sexual assault and domestic violence, Tribal Governments have a great deal more than ‘a significant interest in the subject matter.’”
The use of words such as “crisis” and “epidemic” is justified. Native people experience rates of sexual assault and domestic violence higher than any other racial ethnic or racial group. According to the U.S. Department of Justice and reported in a 2007 Amnesty International Report [PDF], Native American and Alaska Native women are 2.5 times more likely to be raped or sexually assaulted than the general population of women in the United States. More than a third of Native women will be raped at some point during their life, compared to one in five U.S. women generally. Nagler’s brief reports that Native youth are 2.5 times more likely than their non-Native peers to experience trauma related to violence.
In part, these sickening statistics are a product of the already eroded power of tribal courts, advocates say. There’s a reason why what most would assume should be a criminal case—a suit involving the alleged sexual assault of a minor—is appearing before the court as a civil suit. The 1978 Supreme Court ruling, Oliphant v Suquamish Indian Tribe, stripped tribes of jurisdiction in criminal cases involving non-Indians. Because of that decision, which scholars and advocates point out relies on racist language and reasoning, the family of the alleged victim in the Dollar General case couldn’t pursue criminal charges in its tribe’s court. The U.S. Attorney’s office—the federal body that had the power to go after the Dollar General manager—decided not to press criminal charges. Turning a blind eye in such situations is common, according to a New York Times op-ed by Native American writer Louise Erdrich. As Erdrich writes, more than four out of five sex crimes on tribal lands are committed by non-Indian men, and federal prosecutors decline to prosecute two out of three sexual abuse cases.
According to Nagle, who attended yesterday’s oral arguments, Justices Breyer, Kagan, Ginsburg and Sotomayor asked questions that indicate that they understand why tribal sovereignty in such matters is important. Justice Kennedy’s questions leaned toward support for Dollar General and were grounded in the presumption that tribal courts are incapable of fairly trying someone who is not Native. But evidence supporting this position was thin. “No one could give a single example of a non-Indian’s due process rights being violated in tribal courts,” Nagle said. From her perspective, Kennedy’s line of reasoning “is wrong, offensive and based on colonial notions that tribal courts are inferior.”
If Kennedy’s position holds sway on the court, Native people will have to leave their local courts in order to seek justice. This is far easier said than done, as Nagle explains in her amicus brief:
For many Native women, forcing them to take their claims to state court will preclude them from filing their claims at all, as traveling to the nearest ‘state court entails severe inconvenience’ that they cannot economically and emotionally bear after surviving a violent assault. In some instances, the nearest state court off tribal lands is located three to five hours away. It is unconscionable to require Native women and children to drive three to five hours to file a civil action simply because their perpetrator never ‘expressly consented’ to tribal jurisdiction before sexually or physically assaulting them.
Through the 2013 reauthorization of the Violence Against Women Act (VAWA), Congress partially restored tribes’ sovereignty in criminal cases, allowing them to prosecute non-Indian perpetrators in some abuse cases. It was a moment of victory for Native American tribes and their advocates. (It also came a decade after the alleged assault of the child in the Dollar General case.) But if the Supreme Court rules in Dollar General’s favor, taking away tribes’ sovereignty in civil cases, the gains secured through VAWA may feel like one step forward followed by a giant step back.
A rally held outside the court yesterday drew hundreds of people, Nagle said. Survivors of rape and abuse shared their stories, and there was a strong spiritual element to the rally. “There was a lot of prayer today around the court,” she said. “We’ve been doing that for 500 years, and that’s why we’re still here."
The Supreme Court is expected to rule on Dollar General Corporation v. Mississippi Band of Choctaw Indians next spring.
Dani McClain reports on gender, race and policy. She is a contributing writer at The Nation and a fellow with the Nation Institue.
*Story has been updated since publication to correct the spelling of Mary Kathryn Nagle’s name and to increase precision in the explanation of Oliphant v Suquamish Indian Tribe.