The Trouble With Dollar General: SCOTUS Takes on Tribal Jurisdiction in Sexual Assault Case

10-26-15 Washington DC:

It was supposed to be the quintessential rite of passage. In the summer of 2003, John Doe did what a lot of teenagers do: He got a job. As a participant in the Youth Opportunity Program (YOP), the 13-year-old would be paid by his tribe, the Mississippi Band of Choctaw Indians, while he got work experience at the Dollar General store on the tribe’s reservation. In exchange, the retail giant would get free labor while training local tribal members and teaching them job skills.

But what began as a win-win for everyone went horribly wrong. During the course of his brief internship, the boy (whose real name has been changed to protect his identity) alleged that he was sexually assaulted several times during work hours by the store’s manager, Dale Townsend, according to court documents.

After the U.S. Attorney’s office, which has jurisdiction over crimes on tribal lands in Mississippi, declined to press criminal charges, John Doe and his parents then sued Townsend and Dollar General in tribal court for civil damages. Subsequently, Townsend and Dollar General sued the tribe in federal court disputing the tribal court’s jurisdiction. Although the federal district court for the Southern District of Mississippi and the Fifth Circuit Court of Appeals in New Orleans both ruled that the tribe did have jurisdiction, last June the United States Supreme Court agreed to hear Dollar General v. Mississippi Band of Choctaw Indians in what legal experts are calling the “most potentially devastating case for Indian tribes in half a century.”

The central question for Dollar General: Whether tribes have the jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

The Mississippi Choctaw, however, insist that the ability to protect their children falls squarely within the tribe’s sovereign regulatory authority on their land―and the lower courts sided with the tribe. “[T]he ability to regulate the working conditions (particularly as pertains to health and safety) of tribe members employed on reservation land is plainly central to the tribe’s power of self-government,” wrote the judges in the Fifth Circuit, rejecting Dollar General’s contention that there was “no nexus” between Dollar General and the tribe’s Youth Opportunity Program.

The Does, the Mississippi Choctaw, Dollar General and Townsend were all contacted for this story, none of whom responded by press time.

The Absence of Justice

In Mississippi, the federal government retains criminal jurisdiction over crimes committed on Indian reservations. Therefore, if the U.S. Attorney declines to prosecute a case, it cannot be tried in tribal or state court. This jurisdictional “black hole” has led to thousands of untried cases and legal dead-ends for victims, as well as grim crime statistics for Indian people, who are more than twice as likely than other racial groups to experience violent crime and sexual assault, according to the U.S. Department of Justice.

“To be perfectly frank, the U.S. Attorney typically will not prosecute crimes of a sexual nature because they take the position that unless it’s a capital murder offense or white-collar crime that they have a fairly good chance of winning, it’s not worth the time,” says one former U.S. Attorney who declined to be identified because of the sensitivity of the case. “So what you have here is a ‘he said/he said,’ which is not a home-run.”

In January 2005, righteously angry that their son’s case had slipped beneath the waves of justice, Doe’s parents took Townsend and Dollar General to court for damages in the tribal court of the Mississippi Choctaw, whose court system and legal code are nearly identical to the state of Mississippi.

In their petition, the parents alleged that not only was Dollar General liable for Townsend’s criminal conduct, but that the company was also negligent in his hiring, training and supervision, and asked for $2.5 million in actual and punitive damages. ..Continued.. by Suzette Brewer