Opinion analysis: Dollar General, the Court’s longest pending case of the 2015 Term is a four-four per curiam opinion
on Jun 25, 2016 at 9:28 am
Court watchers and lawyers from many walks of life waited many weeks for the Court’s decision in Dollar General Stores v. Mississippi Band of Choctaw Indians. When the Justices took the bench this last Thursday it was the longest pending case of the Term, with six months and seventeen days having elapsed from its argument to the release of the Court’s single-page per curiam opinion. If and when the work papers of Justices sitting at the argument of this case are released, legal historians may be able to tell us why the Court took so long to announce a tie in this case. But until that day arrives, all that remains from a jurisprudential perspective is the now-affirmed ruling of the United States Court of Appeals for the Fifth Circuit.
This case involved a civil tort claim by a youth who is a tribal member of the Mississippi Band of Choctaw Indians. The youth participated in a job training program sponsored by the tribe, and was assigned to work at the Dollar General store located on trust land, in a building owned by the tribe, within the boundaries of the Mississippi Choctaw reservation. Alleging that he was sexually molested during the course of his work assignment, and the youth asserted a civil tort claim for damages in tribal court. Dollar General had expressly consented to the application of tribal law and a tribal court jurisdiction in its lease documents, and it operated pursuant to a business license issued by the tribe. But Dollar General did not expressly consent to any tribal laws or regulations in agreeing to accept a tribal youth into its store for a work assignment as part of the tribal job training program. Tribal court jurisdiction over non-Indian entities is limited already, but the test announced in Montana v. United States provides for tribal regulatory power over non-Indians when the party consents to tribal jurisdiction. On one level, this case focused on the question of what exactly constitutes enough consent. But beyond that more fact-specific question concerning the contracts and conduct of the parties lay questions of whether Montana consent could apply to tribal judiciary powers as well as legislative authority; and whether tribal courts presented inherently unconstitutional due process problems that make tribal jurisdiction unfair.
None of these weighty legal questions have been answered with the Court’s result. The young tribal member’s action now returns to the trial court of the Mississippi Band of Choctaw Indians. If the case goes forward, and either party pursues an appeal, it could potentially wind its way back to the appellate courts raising similar questions. The Fifth Circuit’s decision finding sufficient indicia of Dollar General’s consent to tribal court jurisdiction (upholding each of the tribal courts and the federal district court below) remains guiding precedent in the Fifth Circuit states – Louisiana, Mississippi, and Texas.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to Dollar General. The author of this post is not affiliated with that firm; however, this post was drafted to conform with the blog’s policy regarding cases in which Goldstein & Russell represents a party.]