The justices sat down and heard a case involving tribal law yesterday. And that’s got some people anxious.

Supreme Court Building
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At the heart of the issue is a how tribal courts are allowed to hold folks who aren’t members of the tribe liable, but to many this case runs deeper—and a decision against the tribe would be an “attack on tribal sovereignty” in the eyes of some.

The case centers on a 13-year-old boy who said he was repeatedly sexually assaulted by Dale Townsend, the manager of the Dollar General the boy worked at. Said store was on land belonging to the Mississippi Band of Choctaw Indians, a tribe the boy is a member of. But the manager is not. Under federal law, tribal courts have no authority to prosecute non-Native Americans who commit crimes on their reservation. Tribal courts are allowed to ask the Justice Department to bring criminal charges—something that rarely happens, as Greg Guedel writes for the Native American Legal Update:

In 2011, federal prosecutors declined to file charges in 52 percent of cases involving the most serious crimes committed on Reservations, according to figures compiled by Syracuse University. The government did not pursue rape charges on Reservations 65 percent of the time, and rejected 61 percent of cases involving charges of sexual abuse of children. By contrast, the Justice Department declined only 20 percent of drug trafficking cases nationwide, according to the federal figures.

Once federal prosecutors do decline a case, they seldom hand over evidence to Tribal Courts, according to the Government Accountability Office. A GAO office report last year also found that federal prosecutors often fail to tell Tribes that they have declined cases until after the Tribe’s statute of limitations has expired, leaving no legal authority for the Tribe to pursue its own prosecution.

In cases like these, when the Justice Department has neglected to take up the case, tribes are often left with only one option: Bringing civil charges to get some sort of compensation, which is where Townsend and Dollar General found themselves.

Of course Dollar General wasn’t too happy to be on the hook for this, and has challenged the tribal court’s jurisdiction to hear the case four times, including at the Choctaw Supreme Court and the Fifth Circuit, and lost all of them. And yet, the Supreme Court took up the case, and that has some people worried.

“The grounds on which SCOTUS has agreed to hear this case are mythical,” Jacqueline Agtuca, a policy consultant to the National Indigenous Women’s Resource Center (NIWRC), told RH Reality Check. “We were all shocked when the Court actually took the case; why would they do so unless they were planning to review decades of settled law?”

The case against the tribal court would be that the government wants its citizens to be tried in a “neutral and fair court,” which it doesn’t think the tribal court could provide. In the eyes of Dollar General, it’s not enough that they consented to tribal law when they signed their lease, since they did not consent to being held to tribal law by a tribal court. And unfortunately for the Choctaw people, the case the justices didn’t seem reflect a lot of confidence in tribal courts yesterday—whether or not that view was deserved.

It’s possible the court is using this as a chance to interject and clarify the interaction between tribal and federal law, but even so, the chance of a review—particularly one pertaining to sexual assault—is intimidating for many Native American communities.

On some reservations the murder rate of Native women is ten times the national average. Statistics show that the amount of Native women raped is more than double that of the entire country, with the NIWRC estimating about one in three Native women will be sexually assaulted in her lifetime.  According to the U.S. Department of Justice, in at least 86 percent of sexual assault or rape cases against Native women, survivors report that the perpetrators are non-Native men. And yet, between 2005 and 2009, the U.S. Attorney’s Office declined to prosecute 46 percent of assault matters and 67 percent of sexual abuse matters stemming from reservations.  

While this case could end up being basic case of the consent rule covering tort cases as some believe, it’s setting off a lot of alarm bells for the Native population that relies on these exceptions to seek some justice. If SCOTUS were to decide that tribal courts could no longer exercise their inherent civil jurisdiction over non-Native conduct on tribal lands, it would rob them of a fundamental means of protecting themselves. And after all, when was the last time you heard a defendant unambiguously consent to being sued?