Mississippi Band of Choctaws in front of the Supreme Court

Katherine M. B. Osburn is an associate professor of history at Arizona State University. She is the author of Choctaw Resurgence in Mississippi: Race, Class, and Nation Building in the Jim Crow South, 1830-1977 (Nebraska, 2014).

On December 7^th the U. S. Supreme Court will take up what some legal experts are calling the “most potentially devastating case for Indian tribes in half a century”—Dollar General v. Mississippi Band of Choctaw Indians (No. 13-1496). The legal issue is the right of the Mississippi Choctaws to claim jurisdiction over civil tort claims against a company that is not owned by the tribe.[1] The moral issue is the right of Indigenous nations to protect their citizens from sexual assault, the alleged crime at the heart of this case.

In 2003 a young Choctaw man of 13 (John Doe) accepted an internship at a Dollar General store on tribal lands in Mississippi. The job was part of a program where the tribe paid the wages of young Choctaw trainees while Dollar General trained them. The youth claimed that his manager molested him. Sexual assault on Indigenous lands is a federal matter, but the U.S. Attorney’s office in Mississippi declined to prosecute. This prompted the young man’s parents to sue for damages in tribal court, which ordered the company to pay. Dollar General then filed suit in federal court arguing that the tribal court’s decision was invalid because the Choctaws had no jurisdiction over the conduct of non-Indians on tribal lands. Both the federal district court for the Southern District of Mississippi and the Fifth Circuit Court of Appeals in New Orleans upheld the Choctaws’ rights to adjudicate this issue. Despite the urging of the U.S. Solicitor General not to hear Dollar General’s appeal, however, the High Court will take it up next Monday. True to their historical pattern of savvy activism, Choctaw attorneys have constructed a robust defense of what is known in legal circles as the doctrine of retained sovereignty.

In their Brief for Amici Curiae Historians and Legal Scholars, several prominent legal scholars and historians build a tightly constructed argument for the inherent right of the Mississippi Choctaws to regulate the conduct of non-Indians on the reservation. [2] The brief opens by chastising the research provided by attorneys for Dollar General: “Its law office history—stripped of the critical context that informs scholarship in the discipline—seriously distorts the actual historical record.”[3] They then refute this “law office history” with deep historical research. Challenging Dollar General’s claim that “the federal government has never expressly granted tribes the power to exercise civil jurisdiction over nonmembers,” these scholars assert that “the relevant question is whether the federal government has withdrawn such power, see, e.g., Bay Mills, 134 S. Ct. at 2030, and the historical record shows that it has not.” [Emphasis in original.][4] Indian law is founded on the proposition that Indian nations retain all of the sovereign powers over their lands that they held before conquest unless the federal government specifically rescinds those powers. The Choctaw’s scholarly team effectively establishes that the right to civil jurisdiction over non-Indians entering into contracts with Indian governments has never been revoked. Moreover, they engage the notion of historical tribal sovereignty in Mississippi, the subject of my book Choctaw Resurgence in Mississippi: Race, Class, and Nation Building in the Jim Crow South, 1830-1977, which the University of Nebraska Press published in 2014.

The Mississippi Choctaw Indians struggled for recognition as a distinct Indian polity separate from the Choctaw Nation of Oklahoma for over a century following the removal of the Five Tribes from the Southeast in the early nineteenth century. During that time, federal and state officials regarded Indians remaining in the southeast as “remnants” of the nations who had once occupied the land. These officials argued over the legal status of Choctaws in Mississippi, but the federal government recognized only one Choctaw polity—the nation in Oklahoma. This position stood until the landmark Supreme Court case, U.S. v. John, which also tested the Choctaws’ rights to police conduct on the reservation. In this case, the issue was whether a crime committed on the reservation was subject to state jurisdiction. Initially, the Southern District of Mississippi and the Fifth Circuit Court of Appeals held that it was—that the Choctaws were not a “real” Indian nation. In 1977 the Supreme Court overturned that ruling, recognizing the Mississippi Choctaws as an Indian nation with inherent sovereignty over their lands.[5] Attorneys for Dollar General, however, apparently neglected to read Choctaw Resurgence. Their brief cites an 1855 treaty with the Choctaw nation of Oklahoma that apparently limited tribal jurisdiction with no acknowledgment that the Oklahoma Choctaws and the Mississippi Choctaws were two separate entities.

Dollar General v. Mississippi Band of Choctaw Indians is one of the most momentous cases of the twenty-first century. At stake is the very existence of Indigenous polities as separate and sovereign nations with the power to protect their citizens from non-Indian aggression. The prevalence of sexual violence in Indian country makes this authority especially salient. A spokeswoman for the National Indigenous Women’s Resource Center (NIWRC) noted, “One in three Native women will be raped in her lifetime, and six in ten will be physically assaulted. [Indeed], on some reservations, the murder rate for Native women is ten times the national average.”[6] The majority of perpetrators of this violence are non-Indians.[7] For the sake of these victims and for the continued existence of Indian nations as sovereign polities, let us hope that the Supreme Court pays close attention to the historical reality of Indigenous sovereignty.

1. http://www.scotusblog.com/case-files/cases/dollar-general-corporation-v-mississippi-band-of-choctaw-indians/ Quotation from http://newamericamedia.org/2015/10/the-trouble-with-dollar-general-scotus-takes-on-tribal-jurisdiction-in-sexual-assault-case-read.php
2. See 13-1496 bsac Historians and Legal Scholars, at: https://turtletalk.wordpress.com/2015/10/23/complete-listing-of-amicus-briefs-supporting-respondent-in-dollar-general-v-mississippi-choctaw/.
3. 13-1496 bsac Historians and Legal Scholars, p. 5.
4. 13-1496 bsac Historians and Legal Scholars, p. 21.
5. Osburn, Choctaw Resurgence in Mississippi, pp. 2015-210
6. http://nativenewsonline.net/currents/american-indians-unite-to-fight-dollar-generals-attack-on-tribal-sovereignty/
7. See the website of the National Indigenous Women’s Resource Center for more information on violence against Indian women and children. http://www.niwrc.org/content/4983