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June 01, 2017 HUMAN RIGHTS

[dis]Respecting the Role of Tribal Courts?

by Stacy L. Leeds

Tribal courts in the United States are referred to as the third branch of the third sovereign, placing them, by stature, at the bottom of the hierarchy of judicial systems within our federal union. Tribal judges remain nearly invisible as part of the American judicial fraternity with the role of tribal judiciary often misunderstood, undervalued, or simply unknown within mainstream legal circles.

In the formal judicial opinions of state and federal courts, tribal court power and autonomy cause trepidation. The U.S. Supreme Court has questioned, in not-so-subtle terms, the fairness and objectivity of tribal justice systems. These cautionary approaches to tribal court power are rarely based on allegations of due process violations in the cases at hand, but on speculation that future litigants might someday encounter civil liberty infringements, should judicial authority be fully embraced.

The lack of faith in tribal courts is typically limited to situations involving non-Indian litigants. Tribal court jurisdiction is generally respected when the underlying controversies are considered wholly intra-tribal. For instance, tribal courts are perceived to be the appropriate judicial forum for tribal political questions or internal family law questions. When tribes attempt to exercise civil adjudicatory jurisdiction over contracts disputes and commercial dealings involving non-Indians or non-Indian business entities, very little deference is afforded. Protracted legal battles challenging tribal jurisdiction is the norm, leaving cases in limbo for years as the cases are fully exhausted.

Due to myriad federal laws that span two centuries, tribal courts routinely exercise a limited form of criminal jurisdiction over American Indians, including individuals who are not tribal citizens of the prosecuting tribal government. In the prosecution of these cases, defendants in tribal forums enjoy both the due process protections of the relevant tribal law and the federal due process protections of the Indian Civil Rights Act of 1968, as amended. Challenges to tribal authority include the right to federal habeas review, and tribal sentencing powers are generally limited to incarceration of one year or less, with increased sentencing capacity recently being recognized in very limited situations.

When non-Indians commit crimes within a tribe’s jurisdiction, federal courts have imposed a blanket prohibition on the exercise of tribal criminal jurisdiction over non-Indians, regardless of circumstances. This prohibition has been in effect since 1978 with the Oliphant v. Suquamish Indian Tribes decision of the U.S. Supreme Court when a tribe made arrest of two non-Indians for the crimes of assaulting a police officer and reckless endangerment on tribal lands. Following the Oliphant decision, the only two options within the United States legal system for tribes to address non-Indian conduct within their jurisdiction was to (1) lobby Congress for a restoration of tribal power, or (2) rely on civil remedies and hope the federal courts stop short of a categorical blanket prohibition of tribal civil jurisdiction over non-Indians.

Last term, the U.S. Supreme Court affirmed tribal court civil jurisdiction in a 4–4 decision of an equally divided Court in Dollar General v. Mississippi Band of Choctaw Indians. Dollar General left intact a Fifth Circuit affirmation of tribal court jurisdiction in what is considered to be a significant win for tribal interests in federal Indian law circles. 

Leading up to Dollar General, the outlook was stark. In the more than three decades since Oliphant, the U.S. Supreme Court had never upheld the valid exercise of tribal court jurisdiction over a non-Indian. Oliphant divested tribal authority to prosecute non-Indians for crimes committed on tribal lands, but a de facto prohibition seemed to be emerging from the Supreme Court with respect to civil remedies, despite the fact that civil remedies remain the only viable means for tribes to redress violence in their local communities. Supreme Court jurisprudence created a test for demonstrating that a non-Indian had consented to tribal civil jurisdiction, but the test has yet to meet a fact pattern that passes the test. The threat of a categorical prohibition of jurisdiction over non-Indians, even in the civil context, remains in a precarious balance as the next appointment to the U.S. Supreme Court looms large.

The Dollar General facts are straightforward and serve as the perfect example of the current struggle tribes are engaged in for the basic right of self-determination to protect their own communities from violence. In this case, sexual violence against children.

Dollar General operated a retail store pursuant to a tribal business license on a parcel of tribal land within tribal territory. Dollar General as lessee, entered into a standard commercial lease with a tribally owned business entity as the landlord. The lease contained a standard choice of law provision electing the application of both the laws of the Mississippi Band of Choctaw Indians and the laws of Mississippi. Both parties expressly agreed to exclusive venue and jurisdiction in the tribal court.

As one of the local business partners in a tribal government administered youth job training program, Dollar General agreed to serve as host to the placement of a youth intern. During the course of the internship, the Dollar General store manager sexually molested the intern, leading to a civil lawsuit by the victim’s family against Dollar General under vicarious liability theories.

Dollar General challenged the tribal court’s authority to hear a tort claim involving a non-Indian defendant on the ground that the corporation did not expressly consent to any tribal laws, venue, or jurisdiction in agreeing to accept the tribal youth worker as part of the internship program. Dollar General’s arguments against tribal court jurisdiction also played to perceptions of distrust of tribal courts and tribal judges as being inferior to their state and federal counterparts. Many observers of this case point out the double-standard and asymmetrical approach taken by Dollar General, as a corporation that reaps the benefits of doing business in a particular jurisdiction without the consequences of being governed by, and reviewed in, the courts of that same jurisdiction.

Because Dollar General focused only on the narrow jurisdictional questions of the tribal court’s ability to entertain the case, the case now returns to the trial court of the Mississippi Band of Choctaw Indians for review on the merits.

In the best of times, the federal, state, and tribal governments interact well with each other to weave a seamless tripartite that ensures all individuals and entities within the United States have access to a local and/or predictable judicial forum to redress wrongs and to ensure community safety. In recent years, there has been significant and positive intergovernmental movement, at least in the realm of reducing domestic violence and sexual assault crimes within Indian country. Central to this progress has been the empowerment of tribal institutions. When these institutions are supported and respected as active players, there is a better chance of healthier, safer communities.

Congress has paved the way in recent years with two significant pieces of legislation that empower tribal institutions: the Tribal Law and Order Act of 2010 (TOLA) and the 2013 reauthorization of the Violence Against Women Act (VAWA). Both legislative actions were responsive to disproportionate rates of violence in tribal communities with an emphasis on reducing victimization rates for indigenous women. A key component of the TOLA legislation was the enhancement of tribal court sentencing authority from one-year to three-year maximums, provided felony due process guarantees are preserved in the tribal judicial process.

The VAWA reauthorization included special domestic violence criminal jurisdiction for tribal courts as a first step to curtailing the outright prohibition of tribal court criminal jurisdiction over non-Indians from Oliphant. The partially restored tribal jurisdiction is limited to domestic violence and dating violence offenses. Criminal enforcement powers for violations of protective orders is also recognized as an appropriate tribal power over Indians and non-Indians alike. The provisions represent a big step, with a modest reach. This creates a small class of non-Indian offenders that will now come within tribal court jurisdiction, a class of offenders that should be fairly noncontroversial, as it is limited to parties that reside, work, or enter into domestic relations inside Indian country.

Tribal jurisdictions have moved cautiously and with great deliberation in the implementation of this restored tribal court authority. A few tribal prosecutions of a small class of non-Indians are moving forward like any other prosecution in any other court system would. In this context, tribal governments have federal legislative assurances that their judicial functions will be respected. These assurances are small, but incredibly hard-fought victories of critical importance to basic human rights notions of community self-determination.

Stacy L. Leeds is dean and professor of law at the University of Arkansas School of Law. She has served on the Cherokee Nation Supreme Court and as a tribal judge of seven indigenous nations governments. She is a citizen of the Cherokee Nation and the only native woman to have served as a law school dean in the United States.