Supreme Court Deadlocks on Tribal Jurisdiction

     (CN) – The U.S. Supreme Court deadlocked Thursday on Dollar General’s efforts to avoid a teenager’s molestation claim in tribal court.
     Divided 4-4, the Dollar General case is one of many in which the court has affirmed by default, one justice short after the death in February of conservative stalwart Antonin Scalia.
     Dollar General’s challenge stemmed from its employment in 2005 of a 13-year-old member of the Mississippi Band of Choctaw Indians at its store on the Choctaw reservation.
     The Choctaw place young members of its tribe in short-term, unpaid internships with local businesses that participate in the Youth Opportunity Program.
     John Doe, as the boy is named in the court record, sued the retailer for negligence in tribal court, claiming that a store manager had sexually assaulted him.
     After the Choctaw Supreme Court agreed that the tribal court had jurisdiction over a nonmember like Dollar General, parent company Dolgencorp filed a federal action to block those tribal proceedings.
     A federal judge ruled for the tribe, however, and Dolgen looked to the Supreme Court for relief when the Fifth Circuit affirmed last year.
     There is no opinion or dissents with today’s deadlock order, but a transcript of the hearing in December illuminated several issues in the case.
     “Nobody forced Dollar General to show up on the tribal lands,” Neal Katyal with the D.C. firm Hogan Lovells told the court. “Nobody forced Dollar General to sell to these customers. Nobody forced Dollar General to have this Youth Opportunity Program.”
     Justice Anthony Kennedy pushed Katyal on whether a company opens itself to punitive damages all tribes by sending its goods into every state.
     “Yes, like every employer in this country, Justice Kennedy, when you do those things, you open yourselves up to the reasonable liability that follows,” Katyal said, according to a transcript of the hearing.
     Dollar General’s attorney Thomas Goldstein emphasized that tribal court jurisdiction over tort claims such as this one is not mandatory.
     “With respect to nonmembers, the tribes do not have the authority to subject us to such sweeping tort law duties,” said Goldstein of the firm Goldstein & Russell. “It’s not that there aren’t tort-law duties. The plaintiff here is a citizen of the state of Mississippi. … And the plaintiff has a remedy in state court.”
     Justice Sonia Sotomayor questioned whether Goldstein thinks a nonmember cannot get a fair trial in tribal court.
     “States appoint judges,” she said. “We don’t think it lacks being a neutral forum because the state can sue a citizen there. We think of it as neutral because the judges are neutral. You’re just assuming that these judges are not neutral.”
     Bethesda, Md.-based Goldstein replied that some tribal courts – although not the Choctaw courts in question – have a history of improper process, and federal courts rarely overturn tribal decisions, though they do not treat tribal courts as sovereign.
     Katyal meanwhile waffled on the question of whether an all-tribe-member jury could provide a fair civil trial to a nonmember.
     Arguing that the Indian Civil Rights Act has a due-process clause, Katyal said Congress could thus intervene if it perceived a violation.
     Deputy Solicitor General Edwin Kneedler relayed the position of the United States, as a friend of the court for the Choctaw.
     Kneedler noted that Congress allocated additional funding and training to tribal courts and judges, to encourage them as “expressions of tribal sovereignty,” after decisions in two other tort cases concerning jurisdiction.
     “So what we have here is not congressional silence but congressional approval of that, here in particular,” Kneedler said.
     During Dollar General’s rebuttal, Goldstein argued that jurisdiction for disputes between members and nonmembers should be written down in a contract before they start doing business.
     U.S. District Judge Tom Lee wrote the underlying decision that the Fifth Circuit affirmed by a 2-1 vote.
     Judge Jerry Smith had written last year in dissent that, “for the first time ever,” a federal appeals court had upheld “Indian tribal-court tort jurisdiction over a non-Indian, based on a consensual relationship, without finding that jurisdiction is ‘necessary to protect tribal self-government or to control internal relations.'”
     “The majority’s alarming and unprecedented holding far outpaces the Supreme Court, which has never upheld Indian jurisdiction over a nonmember defendant,” Smith wrote.

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