Equally Divided United States Supreme Court Affirms Tribal Jurisdiction over Tort Claims Against Nonmembers

On June 23, 2016 the Supreme Court issued its much anticipated decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians.1 The one sentence per curiam opinion by an equally divided Court affirmed the opinion of the United States Court of Appeals for the Fifth Circuit which concluded that a tribal court had jurisdiction over tribal members' tort action against a nonmember defendant.2 The per curiam affirmance leaves in place the Fifth Circuit's decision. The Court's decision does not give the Fifth Circuit's decision greater precedential authority, but it stands as a marker of what divides the current eight-member Court.

Background: Dollar General arose from the alleged abuse of a tribal youth by a manager of a Dollar General store located on the Mississippi Band of Choctaw Indians' (the Band) Reservation in Mississippi. The alleged victim was a participant in the Band's internship program, which placed tribal youth in local businesses to get work experience. The accused store manager had agreed on behalf of Dollar General to participate in the internship program with the Band. The youth, "John Doe" in the pleadings, filed suit in tribal court seeking compensatory and punitive damages. Dollar General moved to dismiss on grounds that the tribal court lacked subject matter jurisdiction over the case under the Supreme Court's decision in Montana v. United States.3 The tribal court denied the motion to dismiss, and the tribal court of appeals affirmed. Dollar General then filed suit in the District Court for the Southern District of Mississippi which denied Dollar General's motion to dismiss under Montana. A divided Fifth Circuit affirmed.

The Fifth Circuit Decision: The Fifth Circuit recognized that "generally" a Tribe's inherent power does not extend to nonmember activities and that tribal court jurisdiction over Dollar General under Montana turned on whether one of the two "exceptions" to Montana'sgeneral rule applied.4 The Fifth Circuit majority found that Dollar General's decision to participate in the Band's internship program was a sufficient basis under Montana's first exception to subject Dollar General to tribal tort law and tribal court jurisdiction. The majority held that the store's agreeing to participate in the Band's program and hiring Doe as an "unpaid intern" created a "commercial" relationship and satisfied Montana's "nexus" requirement, that there be a "nexus" between the consensual relationship and the assertion of jurisdiction, because it is foreseeable that an agreement to hire minor tribal members could give rise to tort claims. The majority found protection of youth from abuse is a legitimate tribal interest and that the Band had an interest in regulating "the working conditions… of Tribe members employed on reservation land."5 

In a footnote, the majority referenced provisions of the store's lease agreement with the Band for the tribal land for the store in which the tort occurred. In the lease Dollar General agreed to "comply with all codes and requirements of all tribal . . . laws and regulations pertaining to the leased premises," including the Choctaw Tribal Tort Claim Act, and agreed to "exclusive" dispute resolution in tribal court, though those agreements arguably were limited to "lease disputes."6 However, the Fifth Circuit expressly declined to decide whether the lease agreement "would have a sufficient nexus to support tribal court jurisdiction over Doe's tort claims."

Take Away:  The Supreme Court's affirmance of the Fifth Circuit decision could be read to support future assertions of tribal jurisdiction, even without express consent to tribal law and jurisdiction. It does not provide guidance on whether lease agreements pertaining generally to the lease that do not expressly provide consent to jurisdiction over activities occurring on the lease can support tribal law and court jurisdiction.7

A Further Note: Interestingly, just days after issuing its per curiam affirmance in Dollar General the Supreme Court denied certiorari in EXC Inc. v. Jensen,8 a case in which the Court of Appeals for the Ninth Circuit narrowly construed the Montana exceptions in a case arising from injury to Navajo Nation members in a vehicular collision with a nonmember charter bus on a state highway on the Navajo Nation Reservation.

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1 Dollar Gen. Corp. v. Mississippi Band of Choctaw Indians, 579 U.S. ___ , 135 S. Ct. 2159 (June 23, 2016) (per curiam).

2 Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167, (5th Cir. 2014).

3 450 U.S. 544 (1981).

4 Under the first Montana exception, "[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." 450 U.S. at 565. Under the second exception (not at issue here), "[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id. at 566.  The significance of fee versus trust land status in Montana determinations continues to provoke debate. See, e.g., Strate v. A-1 Contractors, 520 U.S. 438 (1997); Nevada v. Hicks,533 U.S. 353 (2001).

5 Dolgencorp, Inc., 746 F.3d at 173-75.

6 Id. at 174 n.4.

7 Modrall Sperling filed a brief amicus curiae in Dollar General on behalf of the Association of American Railroads.

8 EXC Inc. v. Jensen, 588 Fed. Appx. 720 (9th Cir. 2014) (unpublished), cert. denied, U.S.L.W. 84 USLW 3062 (June 28, 2016).

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