Dolgencorp Inc. v. Miss. Bank of Choctaw Indians

846 F.Supp.2d 646

DOLGENCORP INC., Dollar General Corporation and Dale Townsend, Plaintiffs

v.The MISSISSIPPI BAND OF CHOCTAW INDIANS, The Tribal Court of the Mississippi Band of Choctaw Indians, The Honorable Christopher A. Collins (In his Official Capacity), and John Doe, A Minor, By and through his Parents and Next Friends John Doe, Sr. and Jane Doe, Defendants.

Civil Action No. 4:08CV22TSL–FKB.

United States District Court,

S.D. Mississippi,

Jackson Division.

Dec. 21, 2011.

Edward F. Harold, Fisher & Phillips, LLP, New Orleans, LA, for Plaintiffs.

Carl Bryant Rogers, Van Amberg, Rogers, Yepa, Abeita and Gomez, LLP, Santa Fe, NM, Donald L. Kilgore, Mississippi Band of Choctaw Indians, Choctaw, MS, Brian D. Dover, Brian D. Dover, Attorney, Jonesboro, AR, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of plaintiffs Dolgencorp Inc. and Dollar General Corporation (Dolgen) for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and the separate cross-motions of defendants The Mississippi Band of Choctaw Indians, The Tribal Court of the Mississippi Band of Choctaw Indians and the Honorable Christopher A. Collins (in his official capacity) (collectively the Tribal defendants), and of John Doe, a minor, by and through his parents and next friends, for summary judgment. The court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that Dollar General's motion should be denied, and the cross-motions of defendants granted.

Plaintiff Dolgen operates a Dollar General store on trust land on the Choctaw Indian Reservation in Choctaw, Mississippi. Dolgen occupies the premises pursuant to a lease agreement with the Mississippi Band of Choctaw Indians (the Tribe) and a business license issued by the Tribe. At all relevant times, Dale Townsend was employed as a store manager. According to defendants, in 2003, defendant John Doe, a minor tribe member, was molested by Townsend during a time when Doe was assigned to work at the Dollar General store as part of the Tribe's Youth Opportunity Program (TYOP), a work experience program run by the Tribe pursuant to which tribal youth were placed with local businesses to gain work experience. Doe and his parents filed suit in Choctaw Tribal court against Townsend, and against Dolgen, seeking actual and punitive damages. In that action, they seek to hold Dolgen vicariously liable for Townsend's actions and directly liable for its own alleged negligence in the hiring, training and supervision of Townsend.

In the tribal courts, Dolgen and Townsend challenged tribal jurisdiction. Their challenge was rejected, following which Dolgen instituted the present action seeking a determination that there is no tribal jurisdiction over the Does' complaint. See Williams–Willis v. Carmel Financial Corp., 139 F.Supp.2d 773, 777 (S.D.Miss.2001) (tribal courts are to be given first opportunity to determine their own jurisdiction where colorable basis for such jurisdiction exists but federal courts ultimately have jurisdiction to determine the limits of a tribal court's jurisdiction) (citations omitted). Initially, they sought a preliminary injunction against further proceedings in Tribal Court pending a final determination by this court of the Tribal Court's jurisdiction over the Does' claims against them. The court denied that motion based on its conclusion as to the potential for tribal jurisdiction under the Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), “consensual relationship” exception. See Dolgen Corp., Inc. v. The Mississippi Band of Choctaw Indians, Civ. Action No. 4:08cv22TSL-FKB, 2008 WL 5381906, 6 (S.D.Miss. Dec. 19, 2008). Dolgen has now moved for summary judgment, contending that as a matter of law, in light of the Supreme Court's explication of Montana's “consensual relationship” exception in Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 554 U.S. 316, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008), the Tribe cannot establish the existence of tribal jurisdiction over the Does' claims. The Tribe, and separately the Does, oppose plaintiffs' motion, and have moved for summary judgment, contending that the evidence and law establish that the Tribal Court does have jurisdiction over the Does' tort claims under Montana's consensual relationship exception.

Under Montana, and its progeny, there is a presumption against tribal civil jurisdiction over non-Indians. See Montana, 450 U.S. at 565, 101 S.Ct. 1245 (setting forth “general proposition” that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe”); Plains Commerce Bank, 554 U.S. at 329–30, 128 S.Ct. 2709. This is so because while the tribes have authority to exercise civil jurisdiction over their own members, “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” Montana, 450 U.S. at 564, 101 S.Ct. 1245 (citations omitted). Generally, therefore, “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Id. at 565, 101 S.Ct. 1245.

The Court in Montana identified two exceptions to this general rule against tribal authority over nonmembers. First, “[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Id. Second, “[a] tribe may ... exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id. at 566, 101 S.Ct. 1245. The parties agree that under Montana, because both Dolgen and Townsend are nonmembers of the Tribe, one of Montana's two exceptions must apply in order for the Tribe to assert regulatory authority over their actions.

In its previous opinion holding the second Montana exception inapplicable, the court wrote that the Tribal Court's assuming jurisdiction over the Does' claim against Dolgen or Townsend could not reasonably be said to be necessary to protect tribal self-government or control internal relations. Dolgen, 2008 WL 5381906 (citing County of Lewis v. Allen, 163 F.3d 509, 515 (9th Cir.1998) (en banc) (observing that “the tribal court plaintiff's status as a tribal member alone cannot satisfy the second exception. Nor is it sufficient to argue ... that the exception applies because the tribe has an interest in the safety of its members.”)). While the court's ultimate conclusion that the second exception is not a basis for jurisdiction in this case stands, the court's characterization of the basis for this conclusion was inaccurate. Discussing the second exception, the Court in Plains Commerce Bank wrote:

The second exception authorizes the tribe to exercise civil jurisdiction when non-Indians' “conduct” menaces the “political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U.S., at 566, 101 S.Ct. 1245. The conduct must do more than injure the tribe, it must “imperil the subsistence” of the tribal community. Ibid. One commentator has noted that “th[e] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences.” Cohen § 4.02[3][c], at 232, n. 220.

554 U.S. 316, 341, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008). The tort claims at issue in the case at bar do not fit within this exception. As the court in Philip Morris USA, Inc. v. King Mountain Tobacco Co., Inc. observed,

To some extent, it can be argued that torts committed by or against Indians on Indian land always “threaten[ ] or ha[ve] some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” [Montana, 450 U.S. at 566, 101 S.Ct. 1245]. But this generalized threat that torts by or against its members pose for any society, is not what the second Montana exception is intended to capture. See Atkinson, 532 U.S. at 657 n. 12, 121 S.Ct. 1825 (“Montana's second exception can be misperceived. The exception is only triggered by nonmember conduct that threatens the Indian tribe; it does not broadly permit the exercise of civil authority wherever it might be considered necessary to self-government.” (internal quotations omitted)). Rather, the second exception envisions situations where the conduct of the nonmember poses a direct threat to tribal sovereignty. Id.

569 F.3d 932, 943 (9th Cir.2009).

In this case, tribal jurisdiction over the Does' claims cannot be sustained under the second Montana exception, not because tribal jurisdiction is not necessary to protect tribal self-government or control internal relations, but rather because the nonmember conduct at issue does not “ ‘imperil the subsistence’ of the tribal community” and tribal jurisdiction thus cannot be necessary to avert catastrophic consequences.

As to the first Montana exception, the court previously indicated that while it appeared a consensual relationship existed between Dolgen and the Tribe and John Doe by virtue of their participation in the Tribal Youth Opportunity Program, it was not clear whether it was the type of consensual relationship contemplated by Montana's first exception. It now appears undisputed that Dale Townsend, purportedly on behalf of Dolgen, agreed with the Tribe to participate in the Tribal Youth Opportunity Program, and that based on such agreement, John Doe was placed in the Dollar General store under Townsend's direct supervision.¹ Doe did not thereby become an employee of...