The U.S. Supreme Court will hear oral arguments in Dollar General v. Choctaw Nation of Mississippi this month. The case involves a thirteen-year old tribal member who apprenticed with Dollar General, a national retail chain that had been granted permission to operate on Choctaw land, and the accusation that this minor was sexually molested by the store’s manager. But the wider implications of the case are part of a long continuum of questions of jurisdiction that mark the often contentious history of the United States and the people of Native Nations. In this interview, Gregory Ablavsky, professor of law and a historian, discusses the case—for which he co-authored a brief in support of the Choctaw Nation exploring the legal history of tribal civil jurisdiction.

What is the Dollar General v. Choctaw Nation of Miss. about?

Ablavsky: In this case, a Choctaw family brought a civil suit in Choctaw court against Dollar General for the company’s conduct on tribal lands. The Choctaw court found that it could exercise jurisdiction over the case, and the Fifth Circuit agreed, leading to Dollar General’s appeal.

At core, the case is about a central issue concerning Native nations in the United States and the recognition of their sovereignty under federal law: the scope of their jurisdiction over non-Natives within their territory. For the past forty years, the Supreme Court has repeatedly addressed different iterations of this question. In 1978, in Oliphant v. Suquamish Indian Tribe, the Court concluded that Native nations had been implicitly divested of their criminal jurisdiction over non-Natives. But subsequently the Court explicitly declined to extend this holding to civil jurisdiction. Instead, in a series of cases beginning with United States v. Montana, the Court ruled that tribes could exercise civil jurisdiction over non-Natives in two circumstances: when the non-Natives had entered into a consensual relationship with the tribe or its members, and when non-Native conduct implicated the tribe’s political integrity, economic security, or health and welfare. Dollar General represents the Court’s latest effort to clarify the scope and meaning of this test.

What’s at stake with this case—why is it important?

Ablavsky: Questions of jurisdiction often seem abstract and technical, but for Native nations and their citizens, these are often life-and-death situations, sometimes quite literally. Removing tribal criminal jurisdiction in Oliphant contributed to a disastrous epidemic of sexual violence by non-Native men directed against Native women, because the federal government, which held sole jurisdiction on many reservations, was ill-equipped to police Native communities. Congress has only recently restored a small portion of this authority to Native nations. There’s another amicus brief in this case filed by the National Indigenous Women’s Resource Center that demonstrates that civil jurisdiction, and tribal tort law in particular, is just as vital to protecting Native women as criminal jurisdiction. This is only one example of how guarding Native self-government is essential for ensuring the safety and well-being of Native peoples.

It’s important to recognize that extending federal and state jurisdiction over Native peoples, while also trying to cabin tribes’ own jurisdictions, have long been part of the dispossession and marginalization of Native nations. There’s a deep irony in this case in which Dollar General launches a lengthy and factually unfounded attack on tribal court capacities, the general upshot of which is that non-Natives shouldn’t be subjected to an unfamiliar court system that has been imposed on them without their consent. Dollar General seems blithely unaware that that critique describes the situation of every Native nation within the United States, which had, and still have, federal and state jurisdiction thrust upon them.

This, I think, underscores the importance of a broad historical perspective more generally. The history of Native peoples in the United States is often quite tragic, marked by forcible removal, assimilation, and the government-sponsored destruction of Native cultures and religions. If we rummage around in the past, we can cherry-pick the unpalatable legal principles that federal and state governments crafted to justify these actions, and then invoke them again to try to harm tribal sovereigns in the present. I think this case presents the profound question of whether we want to recraft established doctrine so that the shameful legacy will define the legal relationship between the United States and Native nations.

Can you talk about the tension between state and tribal jurisdiction and sovereignty?

Ablavsky: There’s a tendency, particularly with tribal and state jurisdiction, to think about jurisdiction as a zero-sum situation. But that’s not the case here, or in many other instances of jurisdiction in Indian country. No one is arguing that Mississippi courts couldn’t hear this dispute. The only question is whether the tribal court can also hear this dispute—a pretty ordinary situation in a country where we have lots of instances of overlapping and concurrent jurisdictions, as when multiple states could exercise jurisdiction over the same lawsuit. When done well, tribal and state jurisdiction can reinforce one another, rather than existing at odds. It’s striking, for instance, that the state of Mississippi has filed an amicus brief supporting the Choctaw Nation and its exercise of jurisdiction in this case.

Apart from the sad circumstances of this case, the question before the Court is: Does a tribal court have jurisdiction over a civil tort suit against a nonmember (per the brief)? What does the history tell us?

Ablavsky: As in many federal Indian law cases, history plays a central role here. The federal law concerning the relationship between Native peoples and the United States has developed over centuries of interactions among tribal, state, and federal governments. As a result, judges look to history to clarify ambiguities, often because current statutory and case law leaves many questions unanswered.

This, though, isn’t really one of those ambiguous cases, because the case law on this subject seems pretty clear; the Court has already considered and rejected Dollar General’s position. Rather, Dollar General seems to be trying to use the history to make a dramatic and sweeping change to current law. It’s asking that the Court apply an Oliphant-like bar to civil jurisdiction exercised by all tribes—not just the Mississippi Choctaws—over tort claims brought against non-Natives for on-reservation conduct, based quite a bit on the historical record.

In thinking through these questions, it’s worth taking a step back and thinking critically about Native history more generally. There’s always a challenge whenever history becomes relevant to legal discussions, because there’s a temptation to try to present a tidy story based on isolated snippets of evidence. But anyone who tells you that there is a single, unambiguous, and straightforward narrative concerning the legal history of Native peoples in the United States doesn’t understand the past. There’s far too much ambiguity, contradiction, and change over time to be encapsulated into a single answer.

Let me give you an important example from this case, based on what Dollar General seems to think is its strongest historical argument. The company relies heavily on a couple of treaties with two Native nations in what is today Oklahoma—treaties that seem to strip civil jurisdiction over non-Natives from those tribes in particular. But those treaties are hardly representative of the history of even those two tribes, let alone all the histories of all of the over five hundred different federally recognized tribes. Soon after the handful of treaties referenced by Dollar General, the federal government began contemplating an Indian state in what was then Indian Territory, so it entered new treaties that explicitly granted this new Native government civil jurisdiction over non-members. Later in that century, Congress reversed course and, in creating the state of Oklahoma, abolished tribal courts there altogether. But only thirty years after that, in the 1930s, Congress changed policy again, and passed a law that permitted the re-establishment of tribal courts in Oklahoma. And this is just two Native nations over a span of eighty years. This single example, I think, suggests some of the challenges: we simply can’t distill centuries of change and contradiction into a single, unambiguous narrative.

Fortunately, federal Indian law is remarkably clear about what to do when confronting an ambiguous history. One of the most foundational principles is that Native nations retain the aspects of sovereignty that have not been explicitly removed, especially with respect to civil jurisdiction. And there’s simply no evidence of such explicit intent here; on the contrary, there’s repeated affirmations, by federal officials and even a U.S. Attorney General, that Native nations enjoyed civil jurisdiction over non-Natives.