ShameonDollarGeneral, group in front of the court

Courts Matter in the Lives of Native Women and Native Youth

Ed. note: this post was originally published on the Community site.

There are countless books and dramas written about presidential campaigns and television shows looking behind the scenes at the wheeling and dealing of members of Congress, but for many the judicial branch remains shrouded in mystery. This is unfortunate since the decisions that come to this Nation’s highest courts significantly impact all of our lives. This was made incredibly obvious this week as the Supreme Court considered a case that will make a huge impact on the lives of Native Women and Native Youth.

In Dollar General Corporation v. Mississippi Band of Choctaw Indians, a national chain of stores is asking for the elimination of all tribal court civil jurisdiction over non-Indian conduct on tribal lands. This would be alarming enough without also knowing that this case was originally filed in Tribal Court on behalf of a Native child who was sexually assaulted by a Dollar General supervisor for a job training program. The corporation is trying to avoid accountability for the conduct of its employee who committed sexual violence by arguing that it is unconstitutional for the Tribal Court to exercise jurisdiction over an assault perpetrated on tribal lands. This case has huge implications and yet many people don’t even know it is was heard by the Supreme Court on December 7th.

The idea of justice has been pushed out of reach far too many times for Native Women and Native Youth. In 1978, the Supreme Court stripped Tribal Governments of their criminal jurisdiction over non-Indians who commit crimes on tribal lands (United States v. Oliphant, 435 U.S. 191 (1978)). The majority of violent assaults committed against American Indians are committed by non-Indians. In fact, a 1999 report from the Department of Justice (DOJ) found that “[a]t least 70% of the violent victimizations experienced by American Indians are committed by persons not of the same race.” In cases of sexual assault, research has shown that 67% of the perpetrators are non-Native. This is in the face of an epidemic of domestic and sexual violence against our people.

DOJ reports reveal that Native women are more likely to be battered, raped, or sexually assaulted than any other racial or ethnic group in the United States. One in three Native women will be raped in her lifetime, and six in ten will be physically assaulted. On some reservations, the murder rate for Native women is ten times the national average. Native children suffer similar rates of trauma and sexual abuse, as their rates of violent victimization rank 2.5 times higher than the national average for all other children. This makes the Supreme Court’s conclusion in 1978 that Tribal Governments may no longer exercise their inherent criminal jurisdiction over non-Indians especially troubling. The Supreme Court, however, has declared numerous times that Tribal Governments may continue to exercise their inherent civil jurisdiction over non-Indians. For many Native survivors of non-Indian perpetrated sexual assault, filing a civil tort lawsuit in their own Tribal Court is their only remedy. Now Dollar General seeks to eliminate that remedy.

Instead of accepting responsibility for the cruel and injurious actions of its employee, Dollar General is trying to avoid accountability through the use of a perverse set of jurisdictional gymnastics. Dollar General asserts that non-Indians are not treated fairly in Tribal Courts, but in all of the briefs the corporation has filed in five separate courts (two Tribal and three Federal) challenging the Tribe’s jurisdiction, Dollar General has been unable to offer one single example of un-fair treatment of a non-Indian litigant in the courts of the Mississippi Choctaw Band of Indians. Instead, Dollar General has resorted to creating an atmosphere of disrespect for Tribal Courts, undermining their legitimacy and questioning their competency to render justice in comparison to the more civilized federal and state courts in the United States.

Dollar General’s main argument is against the legitimacy of Tribal Courts and tribal jurisdiction. This is not new – 185 years ago, the State of Georgia argued that Cherokee Nation, my Nation, could not exercise jurisdiction over non-Indians on Cherokee lands because the Nation’s laws were not formally written and because they claimed that the Nation’s courts were uncivilized and inferior. This was in spite of the fact that the Cherokee Nation had a written Constitution and established its Supreme Court ten years before Georgia established its own Georgia Supreme Court. Like the arguments Georgia used to support the forced removal of Cherokee Nation in the 1830s, Dollar General’s arguments today were based on a prejudicial view that Tribal Governments, Tribal Courts, Tribal Constitutions, and the entirety of tribal law must be inferior to the law created and enforced by the States and the Federal Government.

But it’s not. And we’re not. Nothing about us, or our governments, is inferior. In fact, the United States Constitution was based on democratic principles developed by the Iroquois confederacy. Dollar General’s arguments that Indian Nations cannot exercise jurisdiction over non-Indians only find support in antiquated, archaic colonial notions that Indian Nations are inferior, and as such, Dollar General’s arguments against tribal jurisdiction must be dismissed as no longer applicable in a 21st Century American democracy.

The Supreme Court heard arguments from both the attorney for the Mississippi Band of Choctaw Indians as well as the attorney for Dollar General. Dollar General stated that Native survivors should only be permitted to bring civil claims against non-Indian perpetrators in Tribal Court if the perpetrator issued his “express consent” to tribal jurisdiction, presumably before committing the assault. Let’s make this clear – the assailant has to give permission to be held accountable, but the survivor who did not give consent to being violated would have no legal recourse in the lands where she has been violated. This is not just ridiculous and infuriating, it is downright terrifying.

While the consequences are far reaching, let us not forget the individual case we are addressing today. The perpetrator in this case is benefiting from the Supreme Court’s 1978 decision prohibiting Tribes from exercising their inherent criminal jurisdiction. He has not been, nor will he ever be, prosecuted. Now his corporate employer wants to withhold the ability of the victim’s parents to bring a civil tort claim in Tribal Court against Dollar General in order to seek compensation for the victim’s pain and suffering.

Until the Supreme Court and our Federal Government acknowledge the inherent sovereignty of all Indian Nations, until the Supreme Court preserves the right of our Tribes to protect the women and children on our tribal lands, many of us will remain in a kind of legal limbo where justice remains far from our grasp. As a Cherokee woman, an attorney, and an advocate on behalf of survivors, I will be watching this case. I hope that you will, too. Do not turn away and ignore the pain of this young person and the pain of the thousands of Native Women and Youth who have survived domestic and sexual violence. As the Court considers this case, I hope not only as an attorney, but also as a Native Woman that the justices will uphold honor tribal jurisdiction. The Court must uphold Tribal Sovereignty if we are to ever begin to rectify the horrific legacy of violence and oppression against Native people and our sovereign Tribal Governments in this country.

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Mary Kathryn Nagle was born in Oklahoma City, Oklahoma, and is a citizen of the Cherokee Nation of Oklahoma, and an honorary member of the Ponca Tribe of Nebraska. She studied theatre at Georgetown University, and went on to study law at Tulane Law School, where she graduated summa cum laude and was the recipient of the Judge John Minor Wisdom Award. Mary Kathryn joined Pipestem Law in 2015 from Quinn Emanuel Urquhart & Sullivan in New York City, where she specialized in complex commercial litigation related to structured finance, bankruptcy, and federal qui tam actions. She has drafted numerous appellate briefs in federal courts, including federal appellate courts and the United States Supreme Court. In 2013, she represented seventeen current and former Members of Congress in an amicus brief submitted in Adoptive Couple v. Baby Girl (the “Baby Veronica case”), before the United States Supreme Court. This amicus brief explained the legislative history of the Indian Child Welfare Act (“ICWA”) and argued why the ICWA constitutes an exercise of Congress’s constitutional authority under the Indian Commerce Clause. She is a frequent speaker at law schools and symposia on issues related to restoration of tribal sovereignty, tribal self-determination, Indian civil and constitutional rights, and safety of Native Women. She also represents the National Indigenous Women’s Resource Center (NIWRC) in support of the NIWRC’s work to end violence against Native Women. Mary Kathryn is an accomplished playwright who has written and produced several plays relating to Indians and the law, including Waaxe’s Law, Manahatta, My Father’s Bones (with Suzan Shown Harjo), Miss Lead, Fairly Traceable, and Sliver of a Full Moon.

Read more about Mary Kathryn

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