Should Native-American courts have jurisdiction over non-tribe members?

A U.S. Supreme Court case about Native American tribal jurisdiction could redefine the way tribe members bring civil suits against non-tribe members.

The case came before the Supreme Court in December after 10 years of legal wrangling. It started at a Dollar General retail store on a Choctaw reservation in Mississippi that leases space from the tribe.

A 13-year-old boy claimed the non-Choctaw store manager molested him in 2003 while he was an intern in a youth opportunity program the tribe started to teach work skills.

The boy’s parents sued both the store manager and the Dollar General chain in tribal court. They accused Dollar General of failing to vet and oversee its manager. Dollar General wants the case resolved in U.S. courts, not tribal courts. The retailer’s lawyers argue tribal courts are biased against outsiders.

Many, but not all, of the 566 federally recognized Native American tribes in this country have constitutions that mirror that of the United States when it comes to due-process rights. Tribal governance pre-dates the Constitution, and tribes are considered sovereign entities—countries within a country—in many ways.

One thing is clear: Tribal courts are not the place to go after those who are not tribe members for criminal matters. The Supreme Court made that restriction in the 1970s. So the boy and his parents in the Dollar General case brought their suit under a civil law.

But Dollar General argues the Choctaw should not have even civil jurisdiction over non-Native Americans. Attorney Thomas Goldstein said someone who’s not a member of the tribe would have a hard time getting a neutral hearing in tribal court because only tribal members decide cases. But the tribe argues Dollar General signed a lease consenting to tribal law.

“Nobody forced Dollar General to show up on the tribal lands,” said lawyer Neil Katyal. “Nobody forced Dollar General to sell to these customers. Nobody forced Dollar General to have this Youth Opportunity Program. When you do these things, you open yourself to liability.”

Another lawyer in the mix, Deputy Solicitor General Edwin Kneedler, argued for the Obama administration in support of the tribe’s jurisdiction over non-Indians. He emphasized the Tribal Justice Act passed in 1993 that funded expansion of tribal courts, showing Congress’ desire to strengthen tribal justice systems.

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