Supreme Court case draws Tulalip’s attention

TULALIP — Officials at the Tulalip Tribes will have their eyes on Washington, D.C., Monday when the U.S. Supreme Court takes up a case that has significant ramifications for sovereignty for every Native American tribe in the United States.

If the court rules one way, it could severely limit the tribes’ ability to enforce its contracts with nonnative businesses on the reservation in tribal court. In addition, the effect of such a decision could affect the rights of Native American crime victims seeking redress through civil courts.

The case is Dollar General Corporation v. Mississippi Band of Choctaw Indians. The Tulalip Tribes have joined the National Congress of American Indians and 55 other tribes and tribal organization asking the court to rule in the Choctaws’ favor.

It’s so important that representatives from many tribes, including Tulalip Board Member Bonnie Juneau, plan a demonstration on the steps of the Supreme Court on Monday and to march around the U.S. Capitol building.

The key legal issue is whether tribal governments have the authority to bring civil litigation against a nontribal corporation that operates a business on an Indian reservation.

But the ramifications of the case are much more wide-ranging. In this case, a nontribal manager at a Dollar General store on the Choctaw reservation in 2003 was alleged to have sexually abused a 13-year-old tribal member who was an intern at the store.

The Tulalip Tribes also have an internship program that sometimes places tribal youth in nontribal businesses, such as those in the Quil Ceda Village shopping center.

“At the heart of this case is our inherent right as tribes to self-governance,” Tulalip chairman Mel Sheldon Jr. said in a statement. “The Dollar General Corporation seeks to evade tribal civil jurisdiction after the fact. We find it surprising the case has made it to the Supreme Court given federal policy and precedents in case law that have clearly sought to promote tribal self-governance and economic development.”

Criminal charges were not filed in the Choctaw case, so the victim’s parents filed a civil suit in tribal court against both the manager and the store. Dollar General then sued the tribe in federal court, arguing that the tribal court did not have jurisdiction to bring the suit against the company.

The Tulalip brief notes that tribes often turn to tribal courts to pursue civil remedies because tribal courts are generally prohibited from bringing criminal charges against nontribal members.

The problem for many tribes, said Michelle Demmert, reservation attorney for the Tulalip Tribes, “is that they are in rural areas and they lack a strong nontribal police presence to govern the conduct of non-Indians.”

Nontribal businesses often operate on many Indian reservations under contracts in which they consent to tribal jurisdiction. That’s the case with both Choctaw and Tulalip, and those agreements have had the support of the law since a 1981 Supreme Court decision.

According to the brief from the National Congress and other tribal groups, if the court rules in favor of Dollar General, tribal members could lose the ability to sue nontribal people or businesses without their express consent, despite the terms of those agreements.

That consent would never be given, the brief states.

“In no other jurisdiction would accountability for such heinous acts be conditioned on the express consent of the perpetrator, and for obvious reasons,” the brief says.

Indian tribes already have a tough time enforcing laws against nontribal perpetrators. Criminal cases routinely get referred to outside courts.

For example, Demmert said, there have been about 850 police calls on the Tulalip reservation so far this year, 60 percent of which involved non-Indian perpetrators. Almost all of those cases must be filed with Snohomish County, or in the case with certain major crimes, with the U.S. District Court.

Among those cases, Tulalip prosecutors have filed just 11 criminal charges in tribal court against nine non-Indian defendants, she said.

That is only because the Tulalips are part of a program that allows them to prosecute domestic violence cases against nontribal members under the Violence Against Women Act. The Tulalips were one of the first tribes in the U.S. to pilot that program.

That power is limited to charging intimate partners of the victims, and only the domestic violence charge can be tried, Demmert said. Any other charges related to the case, such as assault on a child or threats, have to be referred to an outside court.

“We just really need to create a safe community for native women and victims, and to be effective, we really need full jurisdiction and equal access to resources,” Demmert said.

Also signing onto the amicus brief are several prominent Northwest tribes, including the Swinomish Indian Tribal Community and the Confederated Tribes of the Colville Reservation.

Approximately two dozen more tribes, including the Puyallup Tribe of Indians, also have weighed in on the case. State Attorney General Bob Ferguson also has joined the case along five other states with their own amicus filing.

In the Choctaw case, the federal district court in Mississippi ruled in favor of the tribe, and the Fifth Circuit upheld that decision after Dollar General appealed.

In May, the U.S. Solicitor General filed a brief to the Supreme Court arguing that the appeals court ruling should stand, stating that tribal courts clearly had jurisdiction under the precedent and that there was no conflict among circuit courts on the issue that warrants the Supreme Court to review it. The Supreme Court decided to hear the case anyway.

Oral arguments are scheduled for Monday, with a ruling expected sometime next year.

Chris Winters: 425-374-4165; Twitter: @Chris_At_Herald.

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