Argument in the Supreme Court on December 7 revealed a distinct possibility that the Court will restrict the reach of tribal courts to hear certain civil matters involving non-Indians (or nonmembers), namely civil tort claims brought against nonmembers. In Dollar General v. Mississippi Band of Choctaw Indians, the tribal member plaintiffs sought a $2.5 million civil judgment in tribal court against the store alleging the store manager made sexual advances toward a 13-year old boy working there under a tribal youth employment program. The civil action was brought after the U.S. Attorney declined to seek criminal charges. The mere fact that the Court took the case has shaken Indian country, where it has been assumed this tribal adjudicatory power is neither controversial nor in question. Granting certiorari without a split in the circuits, the Court has raised fears in the tribal community that it will significantly limit civil adjudicatory power over nonmembers, or at least as to civil disputes between members and nonmembers.

To be sure, the Court will examine the reach of Montana’s first exception to the general rule that tribes do not have legislative authority over nonmembers on the reservation (and thus adjudicatory jurisdiction). That exception allows such jurisdiction when non-Indians enter into consensual relationships with a tribe or its members “through commercial dealing, contracts, leases, or other arrangements.” Does this include a general adjudicatory power to hear civil tort actions against a nonmember? Dollar General argued it does not, unless Congress authorizes it or the defendant explicitly has consented to it. While counsel for the tribe stated a significant consensual relationship arose from the company’s lease and involvement with the tribal youth program, Justice Kennedy challenged this, stating he did not see an “explicit consensual relationship,” and could not imply one. The argument hit on the tough questions of whether tribal courts can be neutral forums, whether they require explicit consent because they are “non-Constitutional entities,” and whether it is necessary for tort liability to be included in the contractual provisions in a lease or other contract with the tribe or tribal member. Counsel for the tribe suggested that is not necessary under Montana and other decisions of the Court.

Nonetheless, it appears that Justice Kennedy may swing a majority over to limiting the tort jurisdiction over non-consenting defendants in tribal court. This possibility has raised concerns with those who have pressed for, and succeeded, in expanding the criminal jurisdiction of tribes over non-Indians, especially for rape, sexual assault and related crimes. That expansion came with the Violence Against Women Act (VAWA) Amendments, passed in 2012. If federal prosecutors continue to decline a large number of prosecution of Indian country sexual crimes, assault and non-capital crimes, tribal victims increasingly will look to civil remedies in tribal court. The Court appears to be on the cusp of cutting that remedy off in Dollar General.