Excerpted from: Sarah Deer and Mary Kathryn Nagle, Return to Worcester: Dollar General and the Restoration of Tribal Jurisdiction to Protect Native Women and Children, 41 Harvard Journal of Law & Gender 179 (Winter, 2018) (388 Footnotes) (Full Document)
The Supreme Court's recent 4-4 tie-vote in Dollar General Corp. v. Mississippi Band of Choctaw Indians signals a distinctive shift away from the incoherent modern framework created by Oliphant v. Suquamish Indian Tribe--a framework that stripped Tribal Nations of their inherent authority to protect Native women from non-Indian perpetrated violence. With four Justices voting for--and not against--tribal jurisdiction, Dollar General signals a return to the Court's 1832 decision in Worcester v. Georgia, wherein the Court affirmed the exclusive authority of Tribal Nations to exercise criminal jurisdiction over non-Indians who willingly enter tribal lands. For Native women--and the Tribal Nations that seek to protect them--the Court's 2016 result in Dollar General signals a significant victory.
Physical and sexual violence against Native women and children have been used as a weapon of war since 1492. From Columbus to the Sand Creek Massacre, the various colonial conquests forged on this continent have focused on destroying Tribal Nations by eliminating the women who give life to their citizens. In many instances, this strategy proved nearly successful. But as of 2017, at least 567 sovereign Tribal Nations have survived the onslaught of oppression by the United States.
Despite the survival of these sovereign Nations, non-Indian perpetrated violence against Native women and children continues. What began as a colonial conquest has transformed into a contemporary cultural norm. Native women are more likely to be battered, raped, or sexually assaulted than any other female population in the United States. Likewise, Native children suffer rates of trauma 2.5 times higher than the national average. The rates of violence that persist against Native women and children today constitute nothing less than a crisis.
Tribal Nations, however, have not merely accepted the violence that accompanied colonial conquest. Instead, during the nineteenth century, many Tribal Nations codified their pre-existing rules, values, and traditions that recognized women as sacred into written laws that rendered acts of violence against women a crime against the Nation. These laws were not limited to tribal citizens and thus applied to non-Indians and Indians alike. By the early 1800s, many Tribal Nations exercised jurisdiction over anyone who came onto their lands and committed crimes--regardless of the perpetrator's race or citizenship.
In 1832, the U.S. Supreme Court's rejection of Georgia's arguments against tribal jurisdiction on tribal lands affirmed the legitimacy of tribal laws that criminalize the conduct of non-Indians, including non-Indian American citizens. At a time when Georgia was attempting to take land and jurisdiction from the Cherokee Nation, the Court considered whether the State of Georgia, or Cherokee Nation alone, could exercise criminal jurisdiction over non-Indian American citizens who willfully enter Cherokee Nation lands. In Worcester v. Georgia, the Supreme Court concluded that Georgia could exercise no jurisdiction over non-Indians residing on Cherokee Nation's lands because the authority to exercise such jurisdiction was “exclusive” to Cherokee Nation as a sovereign nation.
The Supreme Court's decision in Worcester articulated three profound ideas. The Worcester Court: (1) concluded that the United States' colonial conquest of Indian Nations did not strip them of their inherent sovereignty; (2) departed from prior practice of describing Indian Nations, and their citizens, as racially inferior to the United States and its citizens; and (3) indicated that Indian Nations constitute the exclusive sovereign with authority over their lands. At its core, Worcester stands as a complete and total affirmation of tribal sovereignty and jurisdiction.
Nearly one hundred and fifty years later, however, the Court effectively re-wrote--or perhaps attempted to erase--the foundational tenets announced in Worcester. In the 1978 decision Oliphant v. Suquamish Indian Tribe, the Supreme Court declared that Tribal Nations could no longer exercise criminal jurisdiction over non-Indians who commit crimes on tribal lands. To circumvent the controlling precedent articulated in Worcester, the Supreme Court reached back to Johnson v. M'Intosh, an 1823 decision that preceded, and arguably was overruled by, Worcester. According to the Court in Johnson, Tribal Nations could not claim legal title to their own lands because they were uncivilized “heathens” and “fierce savages,” and thus pursuant to the “doctrine of discovery,” superior title to tribal lands vested in the white Christians who discovered it. The Oliphant Court relied on Johnson to conclude that if Tribes could not claim legal title to their land, they could not exercise criminal jurisdiction over the non-Indians who come onto it. For the first time in United States history, in 1978, the Supreme Court stripped Tribal Nations of their inherent right to exercise jurisdiction over everyone who resides on or enters their lands.
Oliphant not only attempted to re-write Worcester, it also re-wrote the historical facts and narrative and that led to the Supreme Court's 1832 affirmation of tribal jurisdiction. According to the Court in Oliphant, as of 1978, the exercise of tribal jurisdiction over non-Indians was “a relatively new phenomenon.” A review of pre-removal tribal laws, however, reveals this statement to be far from the truth. What constituted a consistent exercise of jurisdiction over non-Indians as soon as they arrived on the continent in 1492 was formally codified in a series of written laws enacted by the legislatures of Tribal Nations beginning in the early 1800s--a full 150 years before the Court issued its decision in Oliphant. Indeed, tribal regulation of non-Indian conduct on tribal lands was--by the mid-nineteenth century--quite extensive and highly developed.
However, because of Oliphant, Tribal Nations today have no jurisdiction to prosecute non-Indian perpetrators who rape, abuse, or murder Native women and children on tribal lands. As a result, non-Indian perpetrated violence against Native women and children has become a crime that, for the most part, goes un-prosecuted. Many perpetrators have learned they can abuse and harm Native women and children with impunity--and they take advantage of the shield Oliphant provides them.
As a result, Native women and youth are more likely to be victims of a violent crime such as rape, robbery, or aggravated assault than any other non-Native population in the United States. The trauma in tribal communities is so significant that Native youth suffer rates of Post-Traumatic Stress Disorder (“PTSD”) at the same rate as soldiers returning from the wars in Afghanistan and Iraq. Recent studies published by the National Institute of Justice report that of all American Indians who have suffered violence, around ninety percent experienced violence perpetrated by a non-Indian. There can be no question that the inability of Tribal Nations to prosecute the non-Indians committing violent crimes against Native people contributes to their persistence. Although violence against Native women and children traces its roots to the origins of colonial conquest, its continued cultural acceptance is made possible by a specious legal framework the Supreme Court put in place in 1978.
The Court in Oliphant, however, said nothing about civil jurisdiction. That is, although the Oliphant Court eliminated tribal criminal jurisdiction over non-Indians, the Court left civil jurisdiction over non-Indians intact. While later cases did restrict tribal civil jurisdiction in certain circumstances, no decision has fully stripped Tribal Nations of civil jurisdiction over non-Indians. This authority, however, was directly challenged in 2015, when a corporation asked the Supreme Court to eliminate all forms of tribal jurisdiction over non-Indians.
In Dollar General Corp. v. Mississippi Band of Choctaw Indians, the Dollar General Corporation asked the Supreme Court to apply Oliphant to a case concerning civil jurisdiction and conclude that Tribal Nations could no longer exercise any jurisdiction over non-Indians, civil or criminal. The corporation challenged the jurisdiction of the Mississippi Band of Choctaw Indians (“MBCI”) after the parents of a MBCI youth filed a civil lawsuit in Choctaw Civil Court alleging the corporation's non-Indian store manager sexually assaulted the Choctaw youth during the youth's internship at the store. Although Oliphant precluded MBCI from prosecuting the perpetrator, the Supreme Court's preservation of tribal civil jurisdiction over non-Indians left the survivor's parents with the ability to file a lawsuit in Tribal Court seeking compensation for pain and suffering. This is precisely what the parents did.
Petitioner Dollar General's argument in response was simple and profoundly problematic: the Tribal Court could not exercise jurisdiction over the company because the company was a non-Indian and, after Oliphant, Tribal Nations have no jurisdiction over non-Indians. After four separate courts(two Tribal and two lower federal) declared the Tribe able to exercise civil jurisdiction over Dollar General, the company took its plea to the U.S. Supreme Court.
To be fair, the corporation had a good deal of weight on its side. Since Oliphant, the Court has repeatedly noted that Tribal Nations can, technically, continue to exercise civil jurisdiction over non-Indians, but every time a case reaches the Court, the Court concludes that--in that instance and under those particular facts--the Tribe cannot. Since Oliphant, non-Indian litigants have repeatedly scored victories against tribal jurisdiction in the U.S. Supreme Court over the last forty years. No precedent or authority suggested Dollar General's request could be denied--except for Worcester.
Petitioner Dollar General, however, did not cite--or even attempt to distinguish--Worcester. Instead, in its opening brief, Dollar General cited Oliphant on nearly every single page. The corporation argued that the exercise of tribal civil jurisdiction over non-Indians should be eliminated entirely because the Court should reach “the same conclusion this Court reached regarding criminal jurisdiction in Oliphant.”
For the first time in forty years, the Court declined to follow Oliphant. In a 4-4 tie, the Court denied Dollar General's request to strip Tribal Nations of their inherent civil jurisdiction over non-Indians and instead reached a result much closer to Worcester. As a result of the Supreme Court's decision in Dollar General, the company must return to Tribal Court and actually litigate the actual merits of the claims brought against it.
For Native women and children, and the Tribal Nations that seek to protect them, the outcome in Dollar General is a victory. In 1978, the Supreme Court replaced Worcester with Oliphant, but in 2016, when asked to affirm the doctrine espoused in Oliphant, the Court declined to do so. By declining to extend and affirm Oliphant, the Supreme Court has turned away from Oliphant's affirmation of the Johnson colonial conquest framework and, ultimately, signaled a shift back to Worcester. This Article also considers how contemporary threats to tribal sovereignty, including violence and trauma, require the Court to wholly re-consider Oliphant and its progeny as unworkable in addition to being inconsistent with long-established law. To this end, we seek to employ a fresh critique of Oliphant in light of Dollar General and the concurrent emergent activism by Native women to change federal law. We tell the story of tribal jurisdiction over non-Indians from the perspective of Native women, a perspective often overlooked in contemporary Indian law scholarship.
We also note that, in recent decades, both the executive branch and the legislative branch have shown a trend toward a restoration of inherent tribal authority. New federal legislation, including the Tribal Law and Order Act of 2010 and the 2013 reauthorization of the Violence Against Women Act (VAWA), affirms the sovereign-to-sovereign framework articulated in Worcester in the context of tribal criminal jurisdiction. When combined with the Court's outcome in Dollar General, we postulate that Oliphant's days are numbered.
This Article proceeds in six parts. Part I examines the introduction of non-Indian perpetrated violence against Native women as a strategic and purposeful means to destroy tribal sovereignty and eradicate Tribal Nations, detailing the history of violence committed against Native women and children by Europeans and Americans dating back over 500 years. This foundation allows us to consider cases like Worcester, Oliphant, and Dollar General through a gendered lens wherein tribal sovereignty constitutes more than mere rhetoric; for Native women, sovereignty often marks the difference between life and death.
Part II reveals that the exercise of modern forms of tribal criminal jurisdiction over non-Indians is not a “relatively new phenomenon” as Justice Rehnquist wrote in Oliphant--but rather, tribal jurisdiction constitutes a practice that was firmly entrenched almost 200 years ago, well before Andrew Jackson's forced Indian Removal and other federal policies attempted to eliminate the governmental functions of Tribal Nations altogether.
Part III of this Article details the Supreme Court's decision in Worcester v. Georgia, wherein the Court upheld the exercise of tribal criminal jurisdiction as the “exclusive” authority over non-Indians who willingly enter tribal lands.
In Part IV, we explain how the Oliphant Court relied on the 1823 decision in Johnson v M'Intosh to effectively--although not blatantly--overturn Worcester.
Part V examines the ways in which Oliphant's elimination of tribal criminal jurisdiction over non-Indians has contributed to the current crisis of non-Indian perpetrated violence against Native women and children, and ultimately threatened the continued sovereignty of Tribal Nations.
Finally, in Part VI, we consider Dollar General's request that the Supreme Court rely on Oliphant to eliminate Tribes' civil jurisdiction over non-Indians--and the Court's refusal to do so. When placed in its proper historical and contemporary contexts, it is clear that Dollar General signals a return to Worcester.
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To be sure, the arguments against tribal jurisdiction have not changed. The Supreme Court's stance on them, however, has. One hundred and eighty years ago in Worcester, the Supreme Court proclaimed Tribal Nations to be the “exclusive authority” exercising jurisdiction over anyone who came onto their lands. One hundred and forty-five years later, in Oliphant, the Supreme Court relied on the colonialist doctrine announced in Johnson to circumvent Worcester and conclude that Tribal Nations cannot today--and never could before--exercise jurisdiction over non-Indians. For Native women and children--and the Tribal Nations that seek to exercise their inherent right to protect them--Oliphant and its racist reasoning is our Plessy v. Ferguson. It just happened to come one hundred and forty years after our Brown v. Board of Education: Worcester v. Georgia.
Dollar General's departure from Oliphant, therefore, should give us hope. After forty years of living under a framework that prohibits Tribes from exercising their inherent jurisdiction to protect their women and children from the majority of the individuals who assault, rape, murder, and/or abuse them, restoration lies on the horizon. As the inevitable constitutional challenge against the partial restoration of tribal jurisdiction in the 2013 reauthorization of VAWA makes its way up to the Supreme Court, the recent doubt cast on Oliphant's standing as legitimate precedent signals the restoration of Chief Justice Marshall's judicial understanding that tribal jurisdiction over non-Indians is not given by Congress or even the United States--but rather, tribal jurisdiction constitutes an inherent attribute of sovereignty that the Supreme Court never had the constitutional power to take.
For Native women and children--and their Tribal Nations that seek to protect them--the Court's decision in Dollar General signals a restoration of sovereignty--and ultimately, safety. According to four Justices sitting on the Court in 2016, Oliphant no longer commands their unwavering respect and obedience. While this is not yet a full restoration of Worcester, it is a start. It is the beginning of a return. A return to Worcester.