The jurisdiction of tribal courts over non-members is governed by Montana v. United States, 450 U.S. 544 (1981), which permits tribes to exercise civil jurisdiction over nonmembers engaged in consensual relationships with the tribe or its members on tribal land if there is a nexus between the nonmember’s relationship with the tribe or tribal members and the claims pled. Montana also permits the exercise of jurisdiction over nonmembers with respect to “conduct [that] threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”1 Applying these principles, the Fifth Circuit Court of Appeals rejected Dollar General’s arguments that the Tribal Court lacked jurisdiction. The Fifth Circuit concluded that black-letter law allowed the Tribal Court to adjudicate a dispute between a tribal member and non-member that implicated the Tribe’s self-governance rights (in this case, regulation of working conditions on the Reservation) and which arose from the non-member’s activities on the Reservation. The Supreme Court granted Dollar General’s petition for certiorari to consider the question whether tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members. Given the absence of a circuit split, and the fact that the Fifth Circuit decision was a straightforward application of the Court’s precedent, the grant of certiorari was alarming; it was widely feared that the Court might significantly restrict the scope of tribal court jurisdiction.
The Supreme Court affirmed the Fifth Circuit decision with a 4-4 vote and no written opinion. This is a big win for the Mississippi Band of Choctaw Indians and especially for John Doe. This also is a victory generally for Indian tribes and their right to govern their territories—even if qualified by the implications of a tied vote. The Fifth Circuit opinion stands, and Indian tribes remain secure in their right to regulate and adjudicate important public safety matters on their reservations. This is especially important for cases, like the one here, involving sexual assault—crimes that are committed far too often in Indian country with no criminal or civil consequences. It is troubling, however, that in a case involving a sophisticated tribal court system and a public safety issue of utmost interest to the Tribe, four justices were persuaded by Dollar General’s fear-based arguments against tribal court jurisdiction.