Response to a New York Times article about a challenge to Native American sovereignty
|This essay was written as part of an in-depth collegiate study of the Native American position in the modern legal system. It is a response to this article written by New York Times contributor Ned Blackhawk. I am neither Native American nor a legal scholar. Citation information is available on request.|
The Same Words Again:
Dollar Tree v. Choctaw and Native American Sovereignty
Perhaps the greatest shame for a country so proudly declaring itself “the home of the free” is, or should be, that its oldest peoples still face constant challenges to their rights and freedoms. The history of relations between the United States and the numerous Native American tribes living within its borders would make for an impressive tennis match, as treaties, legislation, and court rulings give and take, establish and retract, accept and deny in turn. Ned Blackhawk’s article “The Struggle for Justice on Tribal Lands” examines the Supreme Court case Dollar General v. Mississippi Band of Choctaw Indians, one of the latest attempts by non-Native business and governmental concerns to weaken tribal sovereignty by calling into question, in this case, their right to prosecute crimes perpetrated on tribal land by non-tribe members. Though Blackhawk argues that the decision of the Court should be clear, and in the tribe’s favor, the actual history of law surrounding Native American sovereignty and their authority over reservation land is, in reality, far more complex.
The case began as an allegation of sexual assault by the family of a 13-year-old Choctaw boy who was apprenticed in a Dollar General store on Choctaw tribal lands. Initially, the family of that child sought Dollar General’s expulsion from tribal territory, which they won; when they subsequently sued for damages, however, the company brought the case to US federal court, claiming that the tribe has no right to carry justice on non-tribe members “unless it is expressly authorized to do so by Congress”; the Choctaw hold, as does Blackhawk, that treaty and legal precedent grants them that right, because the crime occurred on tribal lands. Thus far, the lower federal courts have sided with the Choctaw, upholding their right to maintain justice within their borders. Perhaps most significant, though, is Dollar General’s application of “a thorough framework of both history and constitutional concerns that urged the Court towards a broad rule” - that is, rather than seeking judgement in its case specifically, Dollar General intends this case to set a precedent that will exclude tribal control over civil cases involving non-tribe members writ-large. The case is now appealed to the Supreme Court, who agreed to hear the case in order to answer this question: “Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members."
In his article, Blackhawk suggests that “since its inception, the United States government has recognized that tribal governments have authority over their lands, their members and, in certain situations, those who enter their territories...in nearly two centuries of Supreme Court rulings...” However, the 1978 decision Oliphant v. Suquamish Indian Tribe (which Blackhawk also makes reference to) suggested quite the opposite, with Justice Rehnquist stating in the decision of the court, “the effort by Indian tribal courts to exercise criminal jurisdiction over non-Indians, however, is a relatively new phenomenon. And where the effort has been made in the past, it has been held that the jurisdiction did not exist." Furthermore, as the Question Presented in Dollar General states, “the Court subsequently recognized in Nevada v. Hicks...that it has ‘never held that a tribal court had jurisdiction over a nonmember defendant’ in any context, so that it remains an ‘open question’ whether tribal courts may ever exercise civil jurisdiction over nonmembers.” It is clear that Dollar General will necessarily close that question. The Choctaw have argued that control of the rule of justice in tribal territory, regardless of the identities of those involved, lies “squarely in the heartland of the sovereign tribal jurisdiction.”
Though no decision has been made (Dollar Tree is still listed TBD on the Supreme Court website), it appears that the centuries split over Native American sovereignty is as wide as ever. According to court commentator Ed Gehres, writing for SCOTUSblog, “the questions of Justices Anthony Kennedy, Antonin Scalia, Samuel Alito, and, to a lesser extent, Chief Justice John Roberts reflected skepticism of both the abilities of tribal courts and the constitutionality of allowing non-Indians to be subjected to civil jurisdiction for torts in tribal courts. Conversely, the questions of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan suggested varying degrees of confidence in tribal courts and support for the argument that tribal courts are endowed with at least a degree of clear civil jurisdiction over non-Indians.” It is unsurprising that such a divide would exist, given the history of government response to Native peoples: what began with treaties for cooperation turned to assimilation and forced relocation; what began as reservation land legally guaranteed for tribal use only has been eroded and pockmarked by non-tribe mining, logging, drilling, fishing, and hunting interests; and what began as aid for tribal governments has become handouts for those with sufficient “Indian blood.” Policies of forced assimilation begun in the 1880s were reversed by laws meant to foster self-determination by 1930, and laws passed in 1946 intended to “end federal responsibilities to Indians” were subsequently terminated just a few decades later in 1974. The United States’ policies towards Native American peoples have been, in a word, opportunistic, seeking to pacify the tribes’ desires for sovereignty only up to the point that greater political and economic interests take over, and that is ultimately the question before the Supreme Court in Dollar General v. Choctaw: will the Court allow the interests of the business to supersede the rights of the tribe?
While Ned Blackhawk’s assertion that Native American tribal rights to prosecute criminals within their own borders are concrete and undeniable is an admirable one, it is clear that legal precedent is far less straightforward than he would suggest. The decision in Dollar General v. Choctaw will decide which side of that tennis court the ball lands in next: the side of Native American sovereignty or the side of federal oversight. The complexities of the Native American position in modern American society makes it difficult to state outright which is more practical, and even more difficult to argue that either decision is universally “fair,” but one thing is nonetheless obvious: the once proud cultures of the peoples native to the North American continent have been slowly stripped away by the laws of the colonial and postcolonial West, and decisions like Dollar General give the Courts and the greater United States the choice of continuing that trend or taking the morally right steps towards its reversal.