© 2013 The Texas Lawbook.
By David Coale
Contributing Writer to The Texas Lawbook
(October 9) — “State or federal court?” This question is central to many disputes about the proper forum for a lawsuit, as differences between state and federal practice can become outcome-determinative.
The October 3 Fifth Circuit case of Dolgencorp v. Mississippi Band of Choctaw Indians may have added an uncharted new dimension to the question, rephrasing it as “State, federal, or Indian tribal court?” The consequences could introduce multiple wild cards – including whether the Bill of Rights even applies – into a range of business cases.
John Doe, a 13-year-old member of the Choctaw Indian tribe, had an internship at a Dollar General store on the Mississippi Choctaw reservation. He was sexually molested in the store and sued the relevant companies for damages in tribal court. After losing jurisdictional challenges in the tribal system, the companies sued in federal court to enjoin the further pursuit of the case.
The district court dismissed in favor of Choctaw jurisdiction and the Fifth Circuit affirmed in a 2-1 opinion.
Judge James Graves, joined by Judge Catharina Haynes, wrote the majority opinion. Reviewing the Supreme Court authority in the area, the Court recognized that an Indian tribe “may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” That seemingly broad power is limited, however, because “the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve tribal self-government, or control internal relations.”
Reasoning from those principles, the Court acknowledged that “[i]t is hard to imagine how a single employment relationship between a tribe member and a business could ever have such an impact [on internal relations].”
“On the other hand,” it concluded, “at a higher level of generality, the 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.”
Accordingly, the Court held that tribal court jurisdiction was appropriate.
Judge Jerry Smith began his strong dissent: “For the first time ever, a federal court of appeals upholds Indian tribal-court tort jurisdiction over a non-Indian, based on a consensual relationship, without a finding that jurisdiction is ‘necessary to protect tribal self-government or to control internal relations.’”
He argues that “[t]his ruling profoundly upsets the careful balance that the Supreme Court has struck between Indian tribal governance, on the one hand, and American sovereignty and the constitutional rights of U.S. citizens, on the other.”
The opinion notes the serious practical challenges of tribal court litigation. The majority acknowledges that “the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes,” and the companies’ concerns about Constitutional safeguards on civil punitive damages, but rejected them as a reason to stop the tribal litigation.
The dissent goes a step further, and argues that because Choctaw law is based on “customs and usages of the Tribe,” the very elements of the plaintiff’s claims “are unknown to Dolgencorp and may very well be undiscoverable by it.”
The dissent tests the boundaries of the majority’s analysis by questioning when tribal jurisdiction becomes foreseeable to a non-tribe member: “Is the majority’s unprecedented expansion of Indian-court jurisdiction limited to only highly reprehensible acts, or only to ‘really bad’ acts, or to ‘sort of bad acts,’ or to any minor, negligent act . . . ?”
This question suggests others: Is tribal jurisdiction foreseeable to the manufacturer of an allegedly dangerous product? To the publisher of an allegedly defamatory statement, or an allegedly false advertisement?
Procedurally – given that the Fourteenth Amendment does not automatically apply — would tribal law allow a class action, or even another form of multi-party relief beyond what traditional state and federal rules permit?
Dolgencorp may prove to have limited effect, and be seen as focused mainly on fair treatment for a sympathetic young plaintiff. The dissent raises serious questions, though, about what certainty the business community can have about the scope of tribal jurisdiction, and the substantive and procedural consequences of widening it into the law of business torts.
The case is worth watching for those reasons, especially to see if the en banc Fifth Circuit or Supreme Court reviews it.
David Coale is a partner at Lynn Tillotson Pinker & Cox in Dallas and he is the editor of www.600camp.com.
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