The Supreme Court Could Further Strip Native Communities Of Their Once-Promised Powers

Members of the Tlingit tribe from Juneau, Alaska, and the Yaaw Tei Yi group, in Washington, Wednesday, Dec. 2, 2015, during the lighting ceremony of the U.S. Capitol Christmas tree. CREDIT: AP PHOTO, MANUEL BALCEĀ CENETA
Members of the Tlingit tribe from Juneau, Alaska, and the Yaaw Tei Yi group, in Washington, Wednesday, Dec. 2, 2015, during the lighting ceremony of the U.S. Capitol Christmas tree. CREDIT: AP PHOTO, MANUEL BALCEĀ CENETA

The Supreme Court will hear a case on Monday that could significantly damage the little power that the Native American community has to address crimes committed by someone who is not a tribal member. The case, spurred by the alleged sexual assault of a minor in Mississippi, focuses solely on how courts may prosecute cases involving indigenous people.

The original case is pretty straightforward: A 13-year-old boy, involved in a youth career skills program, said he was sexually assaulted by Dale Townsend, his manager at Dollar General, a store on land belonging to the Mississippi Band of Choctaw Indians. The boy is a member of the tribe. The manager is not. The boy’s family sued Dollar General and Townsend in tribal court.

However, Dollar General argues that the court has no power to try the case — and instead has managed, after losing in two federal courts, to bring it before the highest court in the country.

“Dollar General stands poised to become one of the century’s fiercest challengers to tribal communities,” wrote Ned Blackhawk, a Yale professor of history and American studies, in a recent New York Times editorial. “This case has the potential to jeopardize tribal governments’ ability to develop their economies, to make binding contracts, even to protect their citizens.”

The reality is, we are the exception to the rule to be treated like a citizen.

Currently, tribal courts only have jurisdiction over civil cases, not criminal, when a non-native person is accused. So instead of trying Townsend for the crime, the boy’s family filed a civil lawsuit against him and Dollar General, hoping to claim at least some kind of compensation for the boy’s trauma and recovery. In return, Dollar General sued the tribal court, declaring it had no legal jurisdiction over non-natives, even as a civil case.

This wasn’t the family’s first action. Before filing in tribal court, the family took the case to the county, but the attorney assigned by the U.S. Attorney’s Office (USAO), which has exclusive jurisdiction to prosecute non-natives who commit crimes against natives in tribal territories, declined to prosecute.

This is far from unusual. Between 2005 and 2009, the USAO declined to prosecute 46 percent of assault matters and 67 percent of sexual abuse matters. Meanwhile, at least 67 percent of rapes against Native Americans and Alaskan Natives are committed by non-natives. Tribal courts have traditionally brought more justice — when they’re allowed to.

“It is clear [federal courts] do not have the capacity to respond to the needs and safety of our people,” said Lisa Brunner, an advocate for abuse survivors in her community, the White Earth Nation in Minnesota.

The amount of native women raped is more than double than of the entire country, according to Brunner. With a long history of rape and assault cases involving non-natives being disproportionately ignored, she calls tribal lands a literal “hunting ground” for predatory men who know they won’t be stopped. And native people have become frighteningly accustomed to it.

“For many young girls, it’s not an issue of if they’ll get raped, it’s when they’ll get raped,” she said.

After the boy’s alleged assault, Dollar General — with a market value of $20 billion — could have easily settled with the boy’s family and moved on. But instead, the company pushed the case through two different federal courts, losing each time. Why are they so adamant to prove the courts wrong?

The Monument Quilt displayed in front of the Supreme Court on Monday morning. CREDIT: FORCE
The Monument Quilt displayed in front of the Supreme Court on Monday morning. CREDIT: FORCE

“This is serious push to erode our tribal sovereignty. Who’s backing them?” asked Brunner. “This wouldn’t happen if it wasn’t one of us. They would have settled. The reality is, we are the exception to the rule to be treated like a citizen.”

Attorneys say this should have never gotten this far.

“Getting this in front of the Supreme Court is not a good thing,” said Mary Kathryn Nagle, an attorney who co-authored the amicus brief on the behalf of the National Indigenous Women’s Resource Center (NIWRC) for Monday’s case. “I can only hope it’ll attract a national outcry and get more non-native people talking about it. But it’s worrisome that the Supreme Court would even consider hearing this.”

Specifically, she said, because there’s nothing to clear up. The Choctaw tribal court is legally allowed to try civil cases. Jacqueline Agtuca, a lawyer and policy consultant to NIWRC, agrees. The Supreme Court shouldn’t be questioning cemented laws — especially ones could have devastating effects to a fragile community, she said.

“The reality…is very disappointing,” Agtuca said. “This isn’t an unsettled law that needs to be examined. This is a matter of settled law. There shouldn’t be any question about it. It’s incredibly intimidating.”

Advocates for native rights and sexual assault victims will use Monday’s case as an opportunity to shed light on a national issue with a rally on the Supreme Court steps. Activists plan to display survivors’ stories of rape and abuse by erecting a makeshift monument out of 100 quilts — part of an ongoing project called the “The Monument Quilt” — and wearing pieces of the quilt on their backs.

Agtuca, who’s joining the rally, said that while there’s no legislation on the horizon to further fight for native sovereignty, an increasing number of grassroots programs are working to create social change to spark legal action. Simply having native women speak about their stories outside of their tribal communities could bring much needed attention from the non-native majority. Agtuca hopes that a new generation of progressive activists — from members of Occupy Wall Street to Black Lives Matter — will finally shine a light on the injustices she’s seen.

“The reason we haven’t seen a case like this before is because for the first time, the Indians won,” added Nagle, alluding to the trials Dollar General lost prior to Monday’s case. “We’re actually being heard. We’re letting the government know that if they want to strip us of our rights — we’re not okay with that.”