Supreme Court Upholds Tribal Sovereignty in Split Decision

The Supreme Court yesterday affirmed that non-Tribal businesses and individuals can legally face civil suit in Tribal courts.

The 4-4 split decision in Dollar General v. Mississippi Band of Choctaw Indians upholds the rulings of the higher Tribal court, the District Court, and the Fifth Circuit who all recognized the inherent sovereignty and authority of the people who occupied the land before the founding of the United States.

Dollar General had signed a contract with the Mississippi Choctaw bounding the corporation to Tribal court and swearing to uphold the health and welfare of the Tribe. The civil case in question centers on the 2003 molestation of a 13 year old Tribal boy by his manager in the on-reservation Dollar General.

“I am pleased to announce that today the U.S. Supreme Court issued its long-awaited decision, and the result does not deprive the sovereign authority of our Tribal courts to hear and issue a final ruling in a lawsuit brought by Tribal members seeking to have their day in court,” said Mississippi Choctaw Tribal Chief Phyliss J. Anderson.

Sexual assault on American Indian reservations is a frighteningly common occurrence, and the limited authority of Tribal governments to enforce the laws of their land leaves little recourse for survivors. American Indian women are twice as likely to suffer a sexual assault as other women in America. According to the National Congress of American Indians, three out of five will be assaulted and 34 percent will be raped in her lifetime.  80 percent of sexual assaults are committed by non-Tribal men intruding on the land, who act with virtual impunity due to the inability of tribal courts to criminally prosecute non-Tribal members not intimately known to their victims. Federal authorities, who can step in to try serious crimes, often decline to follow through with rape cases.

This reality dates back 38 years to another era of the Supreme Court. In the case of Oliphant v. Suquamish, the Court ruled that Tribal courts cannot criminally prosecute non-tribal members even when the crime is committed on the reservation, making race a de jure factor in these cases.

“Reservations became hunting grounds,” says Amy Casselman, author and former case worker for the Washoe Tribe of California and Nevada. “This creates a lot of different types of crime—drug production, drug trafficking, human trafficking—but the people who disproportionately feel this sense of predation are Native women. Sexual assault in the US is an overwhelmingly intraracial crime, meaning that rape happens overwhelmingly between two members of the same race. Native women are the one statistical anomaly.”

When Congress reauthorized the Violence Against Women Act in 2013, there was a major debate over whether or not to extend Tribal authority to allow the courts to prosecute non-Tribal sexual predators who committed violence against American Indian women. Instead of recognizing the vulnerability of these women, Congress stipulated in the bill that Tribal courts only have the authority to prosecute non-Tribal sexual offenders who have pre-existing intimate relationships with the women they abused, purposely excluding from prosecution unknown predators who specifically seek out reservations to commit their crimes.

This leaves civil suits as one of the only avenues for justice that American Indian survivors of sexual assault have. Yesterday’s Court ruling keeps in place this measure, a fact that brings little comfort to the vulnerable women and children on reservations.

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