A tied 4–4 decision in the Supreme Court yesterday allows a sexual assault case filed against a non-Native defendant to move forward in tribal courts.
“This is a powerful victory for tribal sovereignty and Native women and children!” Jacqueline Agtuca, a lawyer and policy consultant for the National Indigenous Women’s Resource Center, wrote in an email.
“It would have been devastating had … tribal civil jurisdiction not been upheld,” said Rebecca Nagle, an anti-rape activist. “[It] would have been the most devastating case to Native American rights in half a century.”
The lawsuit began back in 2003, when Dale Townsend, a manager at the Dollar General on a Choctaw reservation, allegedly molested a thirteen-year-old Choctaw boy participating in the company’s youth-opportunity program. The boy’s family sued Townsend, who is non-Native, and Dollar General in the Mississippi Band of Choctaw Indians tribal court. The defendants argued that the tribe didn’t have jurisdiction over them and filed injunctions.
“It would have been devastating had … tribal civil jurisdiction not been upheld.”
An attorney speaking on behalf of Dollar General suggested that the tribal courts could not exist as a “neutral forum” for non-Native Americans. Similarly, a supplemental brief submitted by Dollar General states that “it is particularly concerning that the jurors and judges in tribal courts belong to the same polity as the plaintiff, while the defendant is an outsider who has ‘no part in tribal government’ and ‘no say in the laws and regulations that govern tribal territory.’”
Mary Kathryn Nagle, an attorney with the National Indigenous Women’s Resource Center, believes these sorts of arguments are blatantly racist.
“There’s an inherent prejudice and bias that somehow tribal courts are inferior or incompetent or simply incapable of fairly rendering justice,” she said. “It’s incredible to me how people consider these arguments without any fact or evidence to support them.”
By default, the Supreme Court’s tie upholds a federal circuit court’s decision that Dollar General is subject to tribal jurisdiction, because they agreed to participate in the youth-opportunity program. Under a 1981 Supreme Court ruling, Montana v. United States, tribal courts have the authority to prosecute a non-Native defendant in civil cases based on “consensual relationships” or cases that concern matters that directly affect the health and welfare of the tribe.
Although Townsend and Dollar General will face a civil suit, they will never be tried for criminal charges. This is because legally, tribal courts can’t hold criminal trials with non-Native defendants — only the U.S. Attorney’s Office can do that. That’s a problem, since between 2005 and 2009, the attorney’s office declined not to prosecute 67 percent of sexual abuse cases by a non-Native perpetrator with a Native victim. The boy’s family asked the attorney’s office to press criminal charges against Townsend and Dollar General, and the federal government, once again, declined.
“For victims on tribal lands to truly have access to justice, Congress must take action to untie the hands of tribal courts and allow them to prosecute offenders who commit crimes against our children regardless of their race,” Brian Cladoosby, president of the National Congress of American Indians, said in a press release.
The Supreme Court Could Further Strip Native Communities Of Their Once-Promised PowersJustice by CREDIT: AP Photo, Manuel Balce Ceneta The Supreme Court will hear a case on Monday that could significantly…thinkprogress.orgIn order for tribal courts to have the full criminal jurisdiction that they need, Mary Kathryn Nagle believes advocates will have to overcome a major hurdle: ignorance.
“So often our issues aren’t covered in the media or in the press, and we aren’t given the platform that other people are given,” she said.
Mary Kathryn and Rebecca Nagle agreed that the media attention this Supreme Court case garnered — from a segment on the late-night comedy show Full Frontal to op-eds in the New York Times and The Guardian — helped educate the American public on issues tribal nations face today. However, much more work remains to be done.
“I believe in progress, I believe our Supreme Court is an institution that has become more in line with the U.S. democratic values over time, and I believe that it is possible.”
“I think we have a long way to go in terms of educating [the American public],” Mary Kathryn Nagle said. “… If you just walked down the street and asked your average American, ‘Do you know Plessy v. Ferguson,’ a lot of people would. ‘Do you know Brown v. Board of Education?’ A lot of people would. ‘Do you know Oliphant?’ ‘What’s that? I’ve never heard of that?’ Oliphant is our Plessy v. Ferguson.”
The Supreme Court’s 1978 ruling in Oliphant v. Suquamish Indian Tribe states that tribal courts cannot try nonmembers for criminal offenses. This set the precedent for why Townsend and Dollar General can only be tried with a civil suit.
A full restoration of tribal sovereignty could happen if Congress passes a law, or if the Supreme Court decides to overturn Oliphant. And Mary Kathryn Nagle is hopeful that will happen.
“I believe in progress, I believe our Supreme Court is an institution that has become more in line with the U.S. democratic values over time, and I believe that it is possible,” she said.
Rachel Cain is an intern at ThinkProgress.