Case: 12-60668 Document: 00512395560 Page: 1 Date Filed: 10/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 3, 2013
No. 12-60668 Lyle W. Cayce
Clerk
DOLGENCORP, INC. and DOLLAR GENERAL CORP.
Plaintiffs - Appellants
v.
THE MISSISSIPPI BAND OF CHOCTAW INDIANS; THE TRIBAL COURT
OF THE MISSISSIPPI BAND OF CHOCTAW INDIANS; CHRISTOPHER A.
COLLINS, in his official capacity; JOHN DOE, a minor, by and through his
parents and next friends JOHN DOE SR. AND JANE DOE
Defendants - Appellees
Appeal from the United States District Court for the
Southern District of Mississippi
Before SMITH, HAYNES, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Dolgencorp, Inc. and Dollar General Corp. (collectively “Dolgencorp”)
brought an action in the district court seeking to enjoin John Doe, a member of
the Mississippi Band of Choctaw Indians, and other defendants (collectively “the
tribal defendants”) from adjudicating tort claims against Dolgencorp in the
Choctaw tribal court. The district court denied Dolgencorp’s motion for
summary judgment and granted summary judgment in favor of the tribal
defendants, concluding that the tribal court may properly exercise jurisdiction
over Doe’s claims. Because we agree that Dolgencorp’s consensual relationship
Case: 12-60668 Document: 00512395560 Page: 2 Date Filed: 10/03/2013
No. 12-60668
with Doe gives rise to tribal court jurisdiction over Doe’s claims under Montana
v. United States, 450 U.S. 544, 564-66 (1981), we AFFIRM the district court’s
judgment.
BACKGROUND
Dolgencorp operates a Dollar General store on the Choctaw reservation in
Mississippi. The store sits on land held by the United States in trust for the
Mississippi Band of Choctaw Indians, and operates pursuant to a lease
agreement with the tribe and a business license issued by the tribe. At all
relevant times, Dale Townsend was the store’s manager. The tribe operates a
job training program known as the Youth Opportunity Program (“YOP”), which
attempts to place young tribe members in short-term, unpaid positions with local
businesses for educational purposes. In the spring of 2003, Townsend, in his
capacity as manager of the store, agreed to participate in the YOP. Pursuant to
this program, John Doe, a thirteen-year-old tribe member, was assigned to the
Dollar General store. Doe alleges that Townsend sexually molested him while
he was working at the Dollar General store.
In January 2005, Doe sued Dolgencorp and Townsend in tribal court. Doe
alleges that Dolgencorp is vicariously liable for Townsend’s actions, and that
Dolgencorp negligently hired, trained, or supervised Townsend. Doe further
alleges that the assault has caused him severe mental trauma, and seeks “actual
and punitive damages in a sum not less than 2.5 million dollars.”
Dolgencorp and Townsend filed motions in the tribal court seeking to
dismiss Doe’s claims based on lack of subject-matter jurisdiction. The tribal
court denied both motions. Both parties petitioned the Choctaw Supreme Court
for interlocutory review of the lower court’s order denying the motions to
dismiss. Under an analysis based on Montana v. United States, 450 U.S. 544
(1981), the Choctaw Supreme Court held that subject-matter jurisdiction existed
2
Case: 12-60668 Document: 00512395560 Page: 3 Date Filed: 10/03/2013
No. 12-60668
as to both Dolgencorp and Townsend and therefore dismissed the appeal,
remanding the case to the lower court.
On March 10, 2008, Dolgencorp and Townsend filed an action in the U.S.
District Court for the Southern District of Mississippi against the tribal
defendants. Dolgencorp and Townsend allege that the tribal court lacks
jurisdiction over them in the suit filed by Doe and seek to enjoin the prosecution
of Doe’s suit in tribal court. Dolgencorp and Townsend each filed a subsequent
motion for a temporary restraining order and a preliminary injunction.
The district granted Townsend’s motion but denied Dolgencorp’s motion.
The district court reasoned that “[i]f John Doe performed services for Dolgen
that had value to Dolgen such that Dolgen enjoyed a commercial benefit from its
agreement to allow his placement in its store, then it would be reasonable to
conclude that there existed the kind of consensual relationship required by
Montana’s first exception.”1 Dolgen Corp., Inc. v. Mississippi Band of Choctaw
Indians, No. 4:08CV22, 2008 WL 5381906, at *5 (S.D. Miss. Dec. 19, 2008). The
district court found no evidence as to “whether Dolgen’s participation was
essentially gratuitous or whether it received a commercial benefit from the
arrangement.” Id. at *6. Accordingly, the district court held that Dolgencorp
had not carried its burden of establishing likely success on the merits (i.e.
showing that the first Montana exception does not apply). Id. The district court
also rejected Dolgencorp’s argument that Doe’s lawsuit has no nexus to the
alleged consensual relationship between Dolgencorp and the tribe regarding the
YOP. Id. However, the district court held that because Townsend personally
1
As explained more fully below, Montana and its progeny provide two exceptions to the
general rule that Indian tribes cannot exercise civil jurisdiction over non-members. The first
Montana exception, also known as the consensual relationship exception, provides that a tribe
may regulate conduct that has a nexus to some consensual relationship between the non-
member and the tribe or its members.
3
Case: 12-60668 Document: 00512395560 Page: 4 Date Filed: 10/03/2013
No. 12-60668
had not entered into any consensual relationship with either the tribe or Doe,
the tribal court had no jurisdiction over him. Id. at *7.
Dolgencorp and the tribal defendants subsequently filed cross motions for
summary judgment. In its order granting the tribal defendants’ motion and
denying Dolgencorp’s motion, the district court explained:
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. Doe did not thereby become an employee of
Dolgen, but he functioned as an unpaid intern or apprentice,
receiving job training from Dolgen and in turn provid[ing] free labor
to Dolgen for the period of his assignment. In the court’s opinion, as
a consequence of this arrangement, Dolgen implicitly consented to
the jurisdiction of the Tribe with respect to matters connected to
this relationship.
Dolgencorp Inc. v. Mississippi Band of Choctaw Indians, 846 F. Supp. 2d 646,
650 (S.D. Miss. 2011) (footnote omitted). The district court further held that
Doe’s tort claims, “being based on Townsend’s alleged molestation of John Doe
during his tenure at the store, arise directly from this consensual relationship
so that the requirement of a sufficient nexus between the consensual
relationship and exertion of tribal authority is satisfied.” Id.
The district court also rejected Dolgencorp’s argument, based on Plains
Commerce Bank v. Long Family Land and Cattle Co., Inc., 554 U.S. 316 (2008),
that “the consensual relationship exception does not support tribal jurisdiction
since the nonmember conduct at issue does not implicate tribal governance or
internal relations.” Dolgencorp, 846 F. Supp. 2d at 650-51. The district court
explained:
The parties disagree as to the meaning and import of Plains
Commerce Bank with respect to the first Montana exception.
Plaintiffs submit that under the Court’s interpretation of the
exception in Plains Commerce Bank, no longer will every consensual
4
Case: 12-60668 Document: 00512395560 Page: 5 Date Filed: 10/03/2013
No. 12-60668
relationship between a nonmember and a tribal member occurring
on the reservation be sufficient to establish tribal jurisdiction over
claims with a nexus to that relationship; rather, only those
consensual relationships that are evaluated and determined to have
an impact on tribal self governance or internal relations will trigger
tribal jurisdiction. Plaintiffs contend that since the consensual
relationship here involved does not implicate tribal self-governance
or internal relations, then the exception does not apply and there
can be no basis for tribal jurisdiction.
Defendants, on the other hand, maintain that nothing in
Plains Commerce Bank altered the basic Montana framework and
that to establish applicability of the consensual relationship
exception, no showing is required to be made beyond the existence
of the consensual relationship which supports a finding of consent
to tribal jurisdiction, and the nexus between the consensual
relationship and exertion of tribal authority. According to
defendants, it is implicit in Montana and its progeny that the right
of Indian tribes to self governance includes the right to adjudicate
civil disputes arising from voluntary consensual relationships
between tribes and their members and nonmembers. That is,
disputes arising from member-nonmember or tribe-nonmember
consensual relationships are deemed as a matter of law to impact
tribal rights of self-government sufficient to permit the exercise of
tribal court jurisdiction to adjudicate such disputes.
Id. at 652-53 (footnote omitted). The district court agreed with the tribal
defendants’ position, stating that “although a number of post-Plains Commerce
Bank cases have considered the consensual relationship exception, none has
identified the additional showing advocated by plaintiffs as a prerequisite to its
application.” Id. at 653-54 & n.3. Accordingly, the district court concluded that
tribal court jurisdiction was permitted under the first Montana exception. Id.
at 654.
Dolgencorp appealed. Dolgencorp does not contend that there are disputed
questions of material fact; instead, it argues that the district court erred in its
legal determination that the Montana consensual relationship exception was
satisfied.
5
Case: 12-60668 Document: 00512395560 Page: 6 Date Filed: 10/03/2013
No. 12-60668
DISCUSSION
This case deals with the inherent sovereign authority of Indian tribes.
Indian tribes can be viewed as independent sovereign communities that have
lost some aspects of sovereignty. See, e.g., United States v. Wheeler, 435 U.S.
313, 322-23 (1978).
The sovereignty that the Indian tribes retain is of a unique and
limited character. It exists only at the sufferance of Congress and
is subject to complete defeasance. But until Congress acts, the
tribes retain their existing sovereign powers. In sum, Indian tribes
still possess those aspects of sovereignty not withdrawn by treaty or
statute, or by implication as a necessary result of their dependent
status.
Id. at 323. The Supreme Court has recognized that “both the tribes and the
Federal Government are firmly committed to the goal of promoting tribal self-
government, a goal embodied in numerous federal statutes.” New Mexico v.
Mescalero Apache Tribe, 462 U.S. 324, 334-35 (1983). Moreover, “[t]ribal courts
play a vital role in tribal self-government, . . . and the Federal Government has
consistently encouraged their development.” Iowa Mut. Ins. Co. v. LaPlante, 480
U.S. 9, 14-15 (1987).
Generally, Indian tribes retain the power to govern themselves and to
control relations between members of the tribe. See Wheeler, 435 U.S. at 326.
On the other hand, “by virtue of their dependent status,” Indian tribes have been
largely divested of control over external relations; i.e. “relations between an
Indian tribe and nonmembers of the tribe.” See id. In other words, “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.
6
Case: 12-60668 Document: 00512395560 Page: 7 Date Filed: 10/03/2013
No. 12-60668
In Montana, the Supreme Court recognized that generally, “the inherent
sovereign powers of an Indian tribe do not extend to the activities of
nonmembers of the tribe.” 450 U.S. at 565. However, the Court explained:
To be sure, Indian tribes retain inherent sovereign power to exercise
some forms of civil jurisdiction over non-Indians on their
reservations, even on non-Indian fee lands. 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.2
Id. The Court later held that “Montana’s consensual relationship exception
requires that the tax or regulation imposed by the Indian tribe have a nexus to
the consensual relationship itself.” Atkinson Trading Co., Inc. v. Shirley, 532
U.S. 645, 656 (2001). Despite the limitations recognized in Montana and
subsequent cases, the Court has consistently acknowledged that “[t]ribal
authority over the activities of non-Indians on reservation lands is an important
part of tribal sovereignty.” Iowa Mut., 480 U.S. at 18.
“[W]here tribes possess authority to regulate the activities of nonmembers,
civil jurisdiction over disputes arising out of such activities presumptively lies
in the tribal courts.” Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997)
(quotation and brackets omitted). A tribe’s regulation of nonmember conduct
through tort law is analyzed under the Montana framework. See, e.g., Attorney’s
Process & Investigation Services, Inc. v. Sac & Fox Tribe, 609 F.3d 927, 938 (8th
Cir. 2010) (“If the Tribe retains the power under Montana to regulate . . .
conduct, we fail to see how it makes any difference whether it does so through
2
The Court further held that “[a] tribe may also retain inherent power to 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.” Montana, 450 U.S. at 566. Because the tribal
defendants do not argue that this second exception is applicable here, we do not consider it
further.
7
Case: 12-60668 Document: 00512395560 Page: 8 Date Filed: 10/03/2013
No. 12-60668
precisely tailored regulations or through tort claims . . . .”); Philip Morris USA,
Inc. v. King Mountain Tobacco Co., Inc., 569 F.3d 932, 939 (9th Cir. 2009) (“The
Montana framework is applicable to tribal adjudicative jurisdiction, which
extends no further than the Montana exceptions.”).3 In considering regulation
through tort law, “courts applying Montana should not simply consider the
abstract elements of the tribal claim at issue, but must focus on the specific
nonmember conduct alleged, taking a functional view of the regulatory effect of
the claim on the nonmember.” Attorney’s Process, 609 F.3d at 938.
Dolgencorp presents several arguments as to why tribal court jurisdiction
over Doe’s tort claims is not justified under the Montana consensual relationship
exception.
I. Commercial relationship
Under Montana, a tribe may regulate “the activities of nonmembers who
enter consensual relationships with the tribe or its members, through
commercial dealing, contracts, leases, or other arrangements.” 450 U.S. at 565
(emphasis added). Relying on a single repudiated appellate opinion, Dolgencorp
argues that “‘other arrangements’ . . . also must be of a commercial nature.”
Boxx v. Long Warrior, 265 F.3d 771, 776 (9th Cir. 2001); see Smith v. Salish
Kootenai College, 434 F.3d 1127, 1137 n.4 (9th Cir. 2006) (en banc) (disapproving
3
The dissenting opinion suggests that “[b]efore today, no circuit court has upheld
Indian-court jurisdiction, under Montana’s first exception, over a tort claim against a
nonmember defendant.” However, every circuit court to consider the question – including the
Fifth Circuit – has either held or assumed that tribal courts may exercise jurisdiction over tort
claims against non-members under the first Montana exception. See, e.g., Bank One, N.A. v.
Shumake, 281 F.3d 507, 509-12 & n.13 (5th Cir. 2002) (finding colorable tribal court
jurisdiction over fraud claims by Choctaw tribe members against a non-member bank based
on the first Montana exception, such that tribal exhaustion was required). No circuit court
has held that such tort claims are not allowed or suggested that they should be treated
differently from other types of regulation of non-member conduct. Furthermore, no circuit
court has held that tribal court tort jurisdiction over a non-member is allowed under the first
Montana exception only where such jurisdiction is shown in that specific case to be necessary
to protect tribal self-government or to control internal relations.
8
Case: 12-60668 Document: 00512395560 Page: 9 Date Filed: 10/03/2013
No. 12-60668
of this language in Boxx). In other words, Dolgencorp argues that
noncommercial relationships do not give rise to tribal jurisdiction under the first
Montana exeption. We decline to impose such a restriction, which does not
appear to be supported by any compelling rationale. Moreover, such a
requirement would be easily satisfied in this case. Although Doe worked for only
a brief time at the Dollar General store and was not paid, he was essentially an
unpaid intern, performing limited work in exchange for job training and
experience. This is unquestionably a relationship “of a commercial nature.”
II. Nexus
Dolgencorp argues that there is no nexus between its participation in the
YOP and Doe’s tort claims. We disagree. The conduct for which Doe seeks to
hold Dolgencorp liable is its alleged placement, in its Dollar General store
located on tribal lands, of a manager who sexually assaulted Doe while he was
working there. This conduct has an obvious nexus to Dolgencorp’s participation
in the YOP. In essence, a tribe that has agreed to place a minor tribe member
as an unpaid intern in a business located on tribal land on a reservation is
attempting to regulate the safety of the child’s workplace. Simply put, the tribe
is protecting its own children on its own land. It is surely within the tribe’s
regulatory authority to insist that a child working for a local business not be
sexually assaulted by the employees of the business. The fact that the
regulation takes the form of a tort duty that may be vindicated by individual
tribe members in tribal court makes no difference. See, e.g., Attorney’s Process,
609 F.3d at 938. To the extent that foreseeability is relevant to the nexus issue,
as Dolgencorp suggests, it is present here. Having agreed to place a minor tribe
member in a position of quasi-employment on Indian land in a reservation, it
9
Case: 12-60668 Document: 00512395560 Page: 10 Date Filed: 10/03/2013
No. 12-60668
would hardly be surprising for Dolgencorp to have to answer in tribal court for
harm caused to the child in the course of his employment.4
Dolgencorp confuses the merits of Doe’s case with the question of tribal
jurisdiction. It may very well be that Dolgencorp did not do, or fail to do,
anything that would cause it to be held liable to Doe. The nexus component of
the tribal jurisdiction question, however, centers on the nexus between the
alleged misconduct and the consensual action of Dolgencorp in participating in
the YOP.
III. The effect of Plains Commerce
Dolgencorp argues that Plains Commerce narrowed the Montana
consensual relationship exception, allowing tribes to regulate consensual
relationships with nonmembers only upon a showing that the specific
relationships “implicate tribal governance and internal relations.” In Plains
Commerce, 554 U.S. at 334-35, the Supreme Court described the Montana
consensual relationship exception as follows:
4
The dissenting opinion suggests that the nexus is insufficient here because
“Dolgencorp could not have anticipated that its consensual relationship with Doe would
subject it to any and all tort claims actionable under tribal law.” We are not concerned here
with “any and all tort claims actionable under tribal law.” Doe has brought two specific
claims, both of which are based on the alleged sexual molestation of a child by a store
manager. We suspect that Dolgencorp could have easily anticipated that such a thing would
be actionable under Choctaw law. Accordingly, under the facts of this case, we need not reach
the hypothetical factual scenarios posited by the dissenting opinion.
Furthermore, we do not agree that tribal law and tribal court are entirely unfamiliar
to Dolgencorp. For example, in its commercial lease agreement, Dolgencorp agrees to “comply
with all codes and requirements of all tribal and federal laws and regulations” pertaining to
the leased premises. The agreement also provides that it “shall be construed according to the
laws of the Mississippi Band of Choctaw Indians and the state of Mississippi” and that it “is
subject to the Choctaw Tribal Tort Claims Act.” Finally, the agreement provides that
“[e]xclusive venue and jurisdiction shall be in the Tribal Court of the Mississippi Band of
Choctaw Indians.” Although we do not consider whether the lease agreement in itself would
have a sufficient nexus to support tribal court jurisdiction over Doe’s tort claims, we highlight
this agreement to show that a business operating on Indian land in a reservation is unlikely
to be surprised by the possibility of being subjected to tribal law in tribal court.
10
Case: 12-60668 Document: 00512395560 Page: 11 Date Filed: 10/03/2013
No. 12-60668
The logic of Montana is that certain activities on non-Indian fee
land (say, a business enterprise employing tribal members) or
certain uses (say, commercial development) may intrude on the
internal relations of the tribe or threaten self-rule. To the extent
they do, such activities or land uses may be regulated. Put another
way, certain forms of nonmember behavior, even on non-Indian fee
land, may sufficiently affect the tribe as to justify tribal oversight.
While tribes generally have no interest in regulating the conduct of
nonmembers, then, they may regulate nonmember behavior that
implicates tribal governance and internal relations.
(citation and parenthetical omitted). The Court further stated:
[Indian] laws and regulations may be fairly imposed on
nonmembers only if the nonmember has consented, either expressly
or by his actions. Even then, the regulation must stem from the
tribe’s inherent sovereign authority to set conditions on entry,
preserve tribal self-government, or control internal relations. See
Montana, 450 U.S., at 564, 101 S.Ct. 1245.
Id. at 337.
We do not interpret Plains Commerce to require an additional showing
that one specific relationship, in itself, “intrude[s] on the internal relations of the
tribe or threaten[s] self-rule.” It is hard to imagine how a single employment
relationship between a tribe member and a business could ever have such an
impact. On the other hand, at a higher level of generality, the ability to regulate
the working conditions (particularly as pertains to health and safety) of tribe
members employed on reservation land is plainly central to the tribe’s power of
self-government. Nothing in Plains Commerce requires a focus on the highly
specific rather than the general. We agree with the district court’s conclusion
that, under Montana, “disputes arising from member-nonmember or tribe-
nonmember consensual relationships are deemed as a matter of law to impact
tribal rights of self-government sufficient to permit the exercise of tribal court
jurisdiction to adjudicate such disputes.”
11
Case: 12-60668 Document: 00512395560 Page: 12 Date Filed: 10/03/2013
No. 12-60668
Dolgencorp notes the statement in Plains Commerce that “a business
enterprise employing tribal members . . . may intrude on the internal relations
of the tribe or threaten self-rule,” and that “[t]o the extent [it does], [its]
activities . . . may be regulated.” 554 U.S. at 334-35 (emphasis added). This
statement expresses nothing more than the uncontroversial proposition that a
tribe cannot impose any conceivable regulation on a business simply because it
is operating on a reservation and employing tribe members. However, such a
limitation is already built into the first Montana exception. Under that
exception, the tribe may only regulate activity having a logical nexus to some
consensual relationship between a business and the tribe or its members. See,
e.g., Philip Morris, 569 F.3d at 941 (“The mere fact that a nonmember has some
consensual commercial contacts with a tribe does not mean that the tribe has
jurisdiction over all suits involving that nonmember, or even over all such suits
that arise within the reservation; the suit must also arise out of those consensual
contacts.”).
Our conclusion is strengthened by the fact that since Plains Commerce was
decided, no court has, despite finding a consensual relationship with a nexus to
a tribal regulation, rejected tribal jurisdiction because the relationship did not
“implicate tribal governance and internal relations.”5 We also note that any
discussion in Plains Commerce of tribal authority to regulate nonmember
conduct under Montana is dicta; its result is based on a holding that Montana
does not allow a tribe to regulate the sale of land owned by a non-member. See,
5
Two district court opinions have suggested that such an additional showing is
necessary but have not relied on its absence to reject tribal jurisdiction. Salt River Project
Agricultural Improvement and Power District v. Lee, No. 08-CV-8028, 2013 WL 321884 at *13-
15 (D. Az. Jan. 28, 2013) (finding the first Montana exception applicable and stating that
“regulating employment implicates the tribe’s sovereign authority to control internal
relations”); Rolling Frito-Lay Sales LP v. Stover, No. 11-CV-1361, 2012 WL 252938 at *4 (D.
Az. Jan. 26, 2012) (rejecting tribal court jurisdiction based on a lacking nexus between the
consensual relationship and the tort claim).
12
Case: 12-60668 Document: 00512395560 Page: 13 Date Filed: 10/03/2013
No. 12-60668
e.g., Plains Commerce, 554 U.S. at 340 (“Montana provides that, in certain
circumstances, tribes may exercise authority over the conduct of nonmembers,
even if that conduct takes place on non-Indian fee land. But conduct taking
place on the land and the sale of the land are two very different things.”).6
IV. Off-reservation conduct
Dolgencorp argues that Doe failed to adequately allege and prove that
Dolgencorp’s negligent hiring, training, or supervision of Townsend occurred on
the reservation.7 However, Dolgencorp failed to present this argument either to
6
The dissenting opinion, relying on law review articles and dicta from Plains
Commerce, would adopt a “profoundly narrow” interpretation of the Montana consensual
relationship exception. As the dissent all but admits, this would read the first Montana
exception out of existence. If regulation of some consensual relationship is necessary to protect
tribal self-government or to control internal relations, it would seem to fall necessarily within
the second Montana exception, which allows tribes to regulate non-member conduct that
“threatens or has some direct effect on the political integrity, the economic security, or the
health or welfare of the tribe.” Montana, 450 U.S. at 566.
This highly restrictive interpretation appears to be largely driven by the concern that
subjecting non-members to the jurisdiction of tribal courts will violate their due process rights,
a concern we find to be exaggerated. It is true that “the Bill of Rights and the Fourteenth
Amendment do not of their own force apply to Indian tribes.” Nevada v. Hicks, 533 U.S. 353,
383 (2001) (Souter, J., concurring). However, the Indian Civil Rights Act of 1968 imposes
numerous constraints on Indian tribes, including a provision that no tribe may “deny to any
person within its jurisdiction the equal protection of its laws or deprive any person of liberty
or property without due process of law.” 25 U.S.C. § 1302(a)(8). Although the interpretation
of this statute may not precisely track the Supreme Court’s interpretation of the analogous
constitutional language, see id. at 384, we have no reason to believe that this results in
injustice to litigants. While hypothesizing about potential unfairness in a tribal court, neither
Dolgencorp nor the dissenting opinion points to any actual unfairness in the procedures of this
particular tribal court.
7
Although the Supreme Court has never explicitly held that Indian tribes lack inherent
authority to regulate nonmember conduct that takes place outside their reservations, this is
at least strongly implied. For example, Plains Commerce states that “Montana and its
progeny permit tribal regulation of nonmember conduct inside the reservation that implicates
the tribe’s sovereign interests.” 554 U.S. at 332 (emphasis added and removed); see also Philip
Morris, 569 F.3d at 938 (“The jurisdiction of tribal courts does not extend beyond tribal
boundaries.”); Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087, 1091-92 (8th
Cir. 1998) (“Neither Montana nor its progeny purports to allow Indian tribes to exercise civil
jurisdiction over the activities or conduct of non-Indians occurring outside their reservations.”);
but see DISH Network Service L.L.C. v. Laducer, 725 F.3d 877, 884 (8th Cir. 2013) (“Even if
13
Case: 12-60668 Document: 00512395560 Page: 14 Date Filed: 10/03/2013
No. 12-60668
the district court or to the tribal courts. “Under this Circuit’s general rule,
arguments not raised before the district court are waived and will not be
considered on appeal unless the party can demonstrate ‘extraordinary
circumstances.’” Ag Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir.
2009). Because Dolgencorp has not demonstrated extraordinary circumstances,
we decline to consider this argument for the first time on appeal.
Dolgencorp notes that a tribal court’s jurisdiction over a nonmember is an
issue of subject-matter jurisdiction. See Nevada v. Hicks, 533 U.S. 346, 367 n.8.
Dolgencorp further notes that because the “concept of subject-matter jurisdiction
. . . can never be forfeited or waived . . . [,] defects in subject-matter jurisdiction
require correction regardless of whether the error was raised in district court.”
United States v. Cotton, 535 U.S. 625, 630 (2002). Dolgencorp therefore contends
that arguments pertaining to the tribal court’s lack of jurisdiction can never be
waived.
Although it is true that defects in federal subject-matter jurisdiction
cannot be waived in a federal case, a federal court has no independent obligation
to “correct” a tribal court’s lack of subject-matter jurisdiction over another case.
Dolgencorp, as a plaintiff, must set forth a meritorious case to enjoin the tribal
court proceedings based on lack of subject-matter jurisdiction. If it fails to
present its arguments at the appropriate time, they are generally waived.
V. Punitive damages
Dolgencorp argues that the tribal court lacks jurisdiction over Doe’s claims
because Doe seeks punitive damages. Because the inherent sovereign authority
of Indian tribes does not include criminal jurisdiction over non-Indians, Indian
tribes “do not have inherent jurisdiction to try and to punish non-Indians.”
the alleged abuse of process tort occurred off tribal lands, jurisdiction would not clearly be
lacking in the tribal court because the tort claim arises out of and is intimately related to
DISH’s contract with Brian and that contract relates to activities on tribal land.”).
14
Case: 12-60668 Document: 00512395560 Page: 15 Date Filed: 10/03/2013
No. 12-60668
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 212 (1978). Dolgencorp
argues, based on Oliphant, that Indian tribes likewise have no jurisdiction to
impose civil punitive damages on a nonmember. Dolgencorp notes that “the Bill
of Rights and the Fourteenth Amendment do not of their own force apply to
Indian tribes.” Hicks, 533 U.S. at 383 (Souter, J., concurring). Dolgencorp also
notes that an award of punitive damages may implicate constitutional
protections against excessive punishment, in that “grossly excessive” punitive
damages awards violate the Due Process Clause of the Fourteenth Amendment.
BMW of North America v. Gore, 517 U.S. 559, 568 (1996). Dolgencorp therefore
argues: “Because these protections are not present in tribal court, federal
recognition of tribal jurisdiction over non-Indians in claims for punitive damages
would in and of itself violate the Due Process clause. The federal government
simply cannot waive a citizen’s constitutional right by making them subject to
the jurisdiction of a court where constitutional rights do not apply.”
Dolgencorp identifies no authority applying Oliphant in the context of civil
punitive damages or otherwise holding that Indian tribes are categorically
prohibited from imposing punitive damages on nonmembers. Although punitive
damages share many characteristics of criminal punishment, they are distinct;
for example, punitive damages in civil cases do not invoke double jeopardy
concerns. See, e.g., Hudson v. United States, 522 U.S. 93, 103 (1997) (a penalty
that is “civil in nature” does not implicate double jeopardy). Furthermore,
Dolgencorp’s broader argument simply proves too much. If the federal
government could never “waive a citizen’s constitutional right” by subjecting him
to the jurisdiction of a court lacking full constitutional protections, a non-Indian
could never be subjected to tribal court jurisdiction. Yet the Supreme Court has
acknowledged that by entering certain consensual relationships with Indian
tribes, a nonmember may implicitly consent to jurisdiction in a tribal court that
operates differently from federal and state courts. Accordingly, we conclude that
15
Case: 12-60668 Document: 00512395560 Page: 16 Date Filed: 10/03/2013
No. 12-60668
the availability of punitive damages has no effect on the tribal court’s
jurisdiction over Doe’s claims against Dolgencorp.
AFFIRMED.
16
Case: 12-60668 Document: 00512395560 Page: 17 Date Filed: 10/03/2013
No. 12-60668
JERRY E. SMITH, Circuit Judge, dissenting:
For the first time ever, a federal court of appeals upholds Indian tribal-
court tort jurisdiction over a non-Indian, based on a consensual relationship,
without a finding that jurisdiction is “necessary to protect tribal self-government
or to control internal relations.” Montana v. United States, 450 U.S. 544, 564
(1981). The majority’s alarming and unprecedented holding far outpaces the
Supreme Court, which has never upheld Indian jurisdiction over a nonmember
defendant.
This ruling profoundly upsets the careful balance that the Supreme Court
has struck between Indian tribal governance, on the one hand, and American
sovereignty and the constitutional rights of U.S. citizens, on the other hand. The
majority’s bold announcement is conspicuous for its audacity, given that this
court hears few Indian cases and decides little Indian law. I respectfully dissent.
I.
The majority pays only lip service to, but does not heed, the Supreme
Court’s guidance that “exercise of tribal power beyond what is necessary to pro-
tect tribal self-government or to control internal relations is inconsistent with
the dependent status of the tribes, and so cannot survive without express con-
gressional delegation.” Id. One manifestation of that maxim is that Indian
tribes lack “inherent sovereign authority to exercise criminal jurisdiction over
non-Indians.” Id. at 565 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S.
191 (1978)). Absent express congressional delegation, therefore, store manager
Townsend could not have been criminally prosecuted in tribal court for the
alleged molestation of John Doe.1
1
Cf. Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) (“As to nonmembers . . . a
(continued...)
17
Case: 12-60668 Document: 00512395560 Page: 18 Date Filed: 10/03/2013
No. 12-60668
The principle on which Oliphant relies, moreover, “support[s] the general
proposition that the inherent sovereign powers of an Indian tribe do not extend
to the activities of nonmembers of the tribe.” Id. Although the Supreme Court
has not yet explicitly adopted an Oliphant-like rule for civil cases, it has “never
held that a tribal court had jurisdiction over a nonmember defendant.” Nevada
v. Hicks, 533 U.S. 353, 358 n.2 (2001). It remains an open question whether
there are any circumstances under which the Court would find that a tribal
court retains civil jurisdiction over a non-Indian defendant such as Dolgencorp.2
The civil action hereSSan ordinary tort action, despite the seriousness of
the alleged offenseSScomes nowhere close to implicating Indian self-government
or internal tribal relations.3 It is therefore easy to conclude that any putative
exception to the well-established restriction on jurisdiction over non-Indian
defendants could never extent to the instant facts. Even assuming arguendo
that the Supreme Court would recognize an exception, the logic and structure
of Montana dictate that its exceptions apply only where adjudicatory or regula-
tory authority “is needed to preserve the right of reservation Indians to make
their own laws and be ruled by them.”4 The Court recently reiterated the limited
1
(...continued)
tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction.”).
2
See Hicks, 533 U.S. at 358 n.2; see also Jesse Sixkiller, Procedural Fairness:
Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank, 26 ARIZ. J. INT’L & COMP. L.
779, 797 (2009) (“[T]he Court seems to be inching toward an Oliphant-like rule based on
fairness to nonmembers . . . .”).
3
The majority’s unsupported statement that “the ability to regulate the working condi-
tions (particularly as pertains to health and safety) of tribe members employed on reservation
land is plainly central to the tribe’s power of self-government” isSSin addition to being alarm-
ing for its breadthSSnothing more than the majority’s ipse dixit.
4
Strate, 520 U.S. at 459 (internal quotation marks omitted). Although TTEA v. Ysleta
del Sur Pueblo, 181 F.3d 676, 684 (5th Cir. 1999), relied on Iowa Mutual Insurance Co. v.
LaPlante, 480 U.S. 9, 18 (1987), for the proposition that “civil jurisdiction over nonIndians on
reservation lands ‘presumptively lies in the tribal courts unless affirmatively limited by a spe-
(continued...)
18
Case: 12-60668 Document: 00512395560 Page: 19 Date Filed: 10/03/2013
No. 12-60668
nature of tribal-court jurisdiction over nonmember defendants by making expli-
cit that Montana’s first exception, like its second, “grants Indian tribes nothing
beyond what is necessary to protect tribal self-government or to control internal
relations.”5
The majority concedes that “[i]t is hard to imagine how a single employ-
ment relationship between a tribe member and a business could ever have such
an impact.” I agree: Montana and its progeny contemplate a profoundly narrow
scope for tribal-court jurisdiction over nonmembers, not least because “the Bill
4
(...continued)
cific treaty provision or federal statute,’” that presumption was abrogated by subsequent
Supreme Court authority. See Hicks, 533 U.S. at 381 (Souter, J., concurring) (“[I]n explaining
and distinguishing Iowa Mutual, we confirmed in Strate what we had indicated in Montana:
that as a general matter, a tribe’s civil jurisdiction does not extend to the ‘activities of non-
Indians on reservation lands,’ Iowa Mutual, [480 U.S.] at 18 . . . and that the only such activi-
ties that trigger civil jurisdiction are those that fit within one of Montana’s two exceptions.”).
5
Atkinson Trading Co. v. Shirley, 532 U.S. 645, 658–59 (2001) (citations and internal
quotation marks omitted); see Plains Commerce Bank v. Long Family Land & Cattle Co., 554
U.S. 316, 332 (2008) (“Montana expressly limits its first exception to the ‘activities of nonmem-
bers,’ 450 U.S., at 565 . . ., allowing these to be regulated to the extent necessary ‘to protect
tribal self-government [and] to control internal relations,’ id., at 564.’”).
The majority dismisses the relevant language in Plains Commerce Bank as dictum, but
the scholarly consensus agrees that Plains Commerce Bank built on a principle articulated in
Montana and reinforced by its progeny. See, e.g., Sarah Krakoff, Tribal Civil Judicial Juris-
diction over Nonmembers: A Practical Guide for Judges, 81 U. COLO. L. REV. 1187, 1190 (2010)
(“Hicks and Plains Commerce, like Strate, refrained from adopting a categorical prohibition
against tribal civil jurisdiction over nonmembers, but further narrowed the circumstances in
which the Court will approve such exercises of tribal authority.”). Moreover, the claim that
court statements that run contrary to one’s legal assertions can be ignored or avoided as “dic-
tum” or “dicta” is often the last refuge when favorable authority is scant. “Even assuming it
is dictum, however, we give serious consideration to this recent and detailed discussion of the
law by a majority of the Supreme Court.” Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 452
(5th Cir. 2013). The Supreme Court’s “recent dictum . . . provides the best, though not infalli-
ble, guide to what the law is.” Reich v. Cont’l Cas. Co., 33 F. 3d 754, 757 (7th Cir. 1994). As
compared to other dicta, “[d]icta of the Supreme Court are, of course, another matter.” United
States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980). In Gearlds, a recent panel of this
court viewed itself legally bound by Supreme Court dicta to the extent that, despite our rule
of orderliness, it declared prior Fifth Circuit precedent to have been implicitly overruled by
that dicta.
19
Case: 12-60668 Document: 00512395560 Page: 20 Date Filed: 10/03/2013
No. 12-60668
of Rights and the Fourteenth Amendment do not of their own force apply to
Indian tribes.”6 I also agree with the district court that “in no sense can it rea-
sonably be said that the Tribal Court’s assuming jurisdiction over the Does’
claim against Dolgen[corp] . . . is necessary to protect tribal self-government or
control internal relations.”7
“The Montana rule, therefore, and not its exceptions, applies to this case.”
Strate, 520 U.S. at 459. Doe was free to pursue his claims in the state court open
to all Mississippi tort claimants. See id. Because Dolgencorp’s conduct indisput-
ably falls outside the Choctaw Indians’ authority to “protect tribal self-
government or to control internal relations,” Montana, 450 U.S. at 544, the juris-
dictional inquiry should be easily and rightfully at an end.
This court therefore should reverse the district court and render judgment
for Dolgencorp without reaching the first Montana exception. I will address it,
nonetheless, because I also disagree with the majority that there was a legally
sufficient nexus between Dolgencorp’s participation in a short-term, unpaid
internship program and the full body of Indian tort law.
II.
6
Hicks, 533 U.S. at 383 (Souter, J., concurring). As aptly stated by the Chief Justice
of the Supreme Court of the Citizen Potawatomi Nation of Oklahoma, Director of the U.C.L.A.
American Indian Studies Center, and Co-Director of the Native Nations Law and Policy Cen-
ter, “Though seemingly capacious, these two exceptions to the so-called Montana rule have
been construed exceedingly narrowly by subsequent Supreme Court decisions.” Angela R.
Riley, Indians and Guns, 100 GEO. L.J. 1675, 1720 (2012), excerpted in IX SCHOLARLY PERSPEC-
TIVES 101 (U.C.L.A. School of Law Fall 2013).
7
Dolgen Corp. v. The Mississippi Band of Choctaw Indians, No. 4:08-CV-22, 2008 WL
5381906, at *3 (S.D. Miss. Dec. 19, 2008); cf. Strate, 520 U.S. at 457–58 (“Undoubtedly, those
who drive carelessly on a public highway running through a reservation endanger all in the
vicinity, and surely jeopardize the safety of tribal members. But if Montana’s second exception
requires no more, the exception would severely shrink the rule.”).
20
Case: 12-60668 Document: 00512395560 Page: 21 Date Filed: 10/03/2013
No. 12-60668
Before today, no circuit court has upheld Indian-court jurisdiction, under
Montana’s first exception, over a tort claim against a nonmember defendant.8
That exception provides that “[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.” Montana, 450 U.S. at 565.
Assuming “the tribal tort at issue here is a form of regulation,” Plains
Commerce Bank, 554 U.S. at 332, “Montana’s consensual relationship exception
requires that [it] have a nexus to the consensual relationship itself,” Atkinson,
532 U.S. at 656. The relevant consensual relationship is Dolgencorp’s voluntary
participation in the Youth Opportunity Program. The majority errantly con-
tends that, “[h]aving agreed to place a minor tribe member in a position of quasi-
8
One recent survey reports only four cases upholding tribal-court jurisdiction over a
non-member defendant, and just two involving tort law. See Krakoff, supra note 5, at 1236.
In McDonald v. Means, 309 F.3d 530 (9th Cir. 2002), the court upheld tribal jurisdiction over
a tort suit that occurred on a Bureau of Indian Affairs road over which the tribe retained gate-
keeping authority. The Ninth Circuit, however, does not acknowledge that Montana’s general
rule applies to non-Indian conduct on reservation trust land. See, e.g., Water Wheel Camp Rec-
reational Area, Inc. v. LaRance, 642 F.3d 802, 813–14, 819 (9th Cir. 2011) (rejecting applica-
tion of Montana but upholding jurisdiction over trespass claim under second exception). Both
the Choctaw Supreme Court and the district court a quo have ruled, in light of dicta in Hicks
and Plains Commerce Bank, that the Ninth Circuit’s narrow application of Montana is incor-
rect, a ruling that the tribal defendants do not challenge.
The only decision from a federal circuit that found tribal-court jurisdiction over a tort
claim against a non-member defendant is Attorney’s Process & Investigation Servs., Inc. v. Sac
& Fox Tribe of Miss. in Iowa, 609 F.3d 927 (8th Cir. 2010), which involved Montana’s second
exception. The court found that defendants’ outrageous alleged conduct—“API’s armed agents
entered onto tribal trust land without permission of the elected governing body, stormed build-
ings vital to the Tribe’s economy and its self government, committed violent torts against tri-
bal members, forcibly seized sensitive information related to the Tribe’s finances and gaming
operations, and damaged tribal property”—“menace[d] the ‘political integrity, the economic
security, [and] the health [and] welfare’ of the Tribe to such a degree that it ‘imperil[ed] the
subsistence’ of the tribal community.’” Id. at 939 (quoting Plains Commerce Bank, 554 U.S.
at 341 (alterations in original)). In DISH Network Service L.L.C. v. Laducer, 725 F.3d 877, 884
(8th Cir. 2013), the court invoked Montana’s first exception in denying a preliminary injunc-
tion against Indian court jurisdiction over an unexhausted tort claim, but the court postponed
“a definitive resolution of the question.”
21
Case: 12-60668 Document: 00512395560 Page: 22 Date Filed: 10/03/2013
No. 12-60668
employment on Indian land in a reservation, it would hardly be surprising for
Dolgencorp to have to answer in tribal court for harm caused to the child in the
course of his employment.”
That reasoning is foreclosed by Plains Commerce Bank, 554 U.S. at 338.
There is no reason Dolgencorp should could reasonably have anticipated that,
solely on the basis of its participation in a short-term, unpaid internship pro-
gram, it would be subject to the entire—and largely undefined—body of Indian
tribal tort law. As the Supreme Court has “emphasized repeatedly in this con-
text, when it comes to tribal regulatory authority, it is not in for a penny, in for
a Pound.” Id. (citation and internal quotation marks omitted).
The elements of Doe’s claims under Indian tribal law are unknown to Dol-
gencorp and may very well be undiscoverable by it.9 Choctaw law expressly
incorporates, as superior to Mississippi state law, the “customs . . . and usages
of the tribes.” CHOCTAW TRIBAL CODE § 1-1-4. “Where doubt arises as to the cus-
toms and usages of the Tribe, the court may request the advice of persons gen-
erally recognized in the community as being familiar with such customs and
usages.” Id. Although the claims that Doe wishes to press against Dolgencorp
have familiar state-law analogues, the majority’s aggressive holding extends to
the entire body of tribal tort law—including any novel claims recognized by the
Choctaws but not by Mississippi. Cf. Plains Commerce Bank, 554 U.S. at 338.
Because Dolgencorp could not have anticipated that its consensual rela-
tionship with Doe would subject it to any and all tort claims actionable under
9
Even for the tribes and their members, the status of the law may be unknowable in
light of Montana and the tribal reliance on custom and practice, “leaving tribes to wonder as
to the scope of tribal civil jurisdiction over nonmembers operating on non-Indian lands within
Indian Country.” Riley, supra note 6, at 1720. Accord Philip P. Frickey, (Native) American
Exceptionalism in Federal Public Law, 119 HARV. L. REV. 431, 435 (2005) (“Even the Chief
Justice of the North Dakota Supreme Court recently said that, ‘in matters involving jurisdic-
tion on Indian reservations, we often are unable to know what the law is until the United
States Supreme Court tells us what it is.’”).
22
Case: 12-60668 Document: 00512395560 Page: 23 Date Filed: 10/03/2013
No. 12-60668
tribal law, there is an insufficient nexus to satisfy Montana’s first exception. For
the majority to hold otherwise raises serious due-process concerns insofar as Dol-
gencorp will be forced to defend Doe’s claims in an unfamiliar forum without the
benefit of constitutional protections.10
Even accepting as accurate that, in the majority’s words, “[i]t is surely
within the tribe’s regulatory authority to insist that [Doe] not be sexually
assaulted by the employees of [Dolgencorp],” it cannot be true that, as the major-
ity insists, “[t]he fact that the regulation takes the form of a tort duty that may
be vindicated by individual tribe members in tribal court makes no difference.”
Although “a tribe’s adjudicative jurisdiction does not exceed its legislative juris-
diction,” Strate, 520 U.S. at 453, it does not necessarily follow that the two are
coextensive. There are good reasons to construe the former more narrowly: Mon-
tana’s first exception envisages discrete regulations consented to ex ante; the
majority, to the contrary, upholds an unprecedented after-the-fact imposition of
an entire body of tort law based on Dolgencorp’s participation in a brief, unpaid
internship program.
10
Justice Souter explained this serious due-process concern as follows:
The ability of nonmembers to know where tribal jurisdiction begins and
ends, it should be stressed, is a matter of real, practical consequence given
“[t]he special nature of [Indian] tribunals,” which differ from traditional Ameri-
can courts in a number of significant respects. To start with the most obvious
one, it has been understood for more than a century that the Bill of Rights and
the Fourteenth Amendment do not of their own force apply to Indian tribes.
Although the Indian Civil Rights Act of 1968 (ICRA) makes a handful of analo-
gous safeguards enforceable in tribal courts, “the guarantees are not identical,”
and there is a “definite trend by tribal courts” toward the view that they “ha[ve]
leeway in interpreting” the ICRA’s due process and equal protection clauses and
“need not follow the U.S. Supreme Court precedents ‘jot-for-jot.”’ In any event,
a presumption against tribal-court civil jurisdiction squares with one of the
principal policy considerations underlying Oliphant, namely, an overriding con-
cern that citizens who are not tribal members be “protected . . . from
unwarranted intrusions on their personal liberty.”
Hicks, 533 U.S. at 383–84 (Souter, J., concurring) (citations omitted).
23
Case: 12-60668 Document: 00512395560 Page: 24 Date Filed: 10/03/2013
No. 12-60668
And finally, the majority’s pronouncement is vague and unworkable in
practice. On the one hand, the majority opines that “[h]aving agreed to place a
minor tribe member in a position of quasi-employment on Indian land in a
reservation, it would hardly be surprising for Dolgencorp to have to answer in
tribal court for harm caused to the child in the course of his employment.” That
broad statement would authorize a tort action in Indian court if, for example, the
minor had slipped on a poorly-maintained floor at the store and had cut his
finger. In the majority’s words, that would violate “the safety of the child’s
workplace.”
On the other hand, the majority emphasizes that “[i]t is surely within the
tribe’s regulatory authority to insist that a child working for a local business not
be sexually assaulted by the employees of the business.” Is the majority recog-
nizing tribal-court authority over any tort related to the voluntary job-training
program, or only over especially despicable incidents such as sexual assaults?
What if the boy had fatally hit his head on the floor? Or would it have to be an
intentional tortSSa slap on the face, perhaps, for bad performance? Is the major-
ity’s unprecedented expansion of Indian-court jurisdiction limited to only highly
reprehensible acts, or only to “really bad” acts, or to “sort of bad acts,” or to any
minor, negligent act, or only to situations in which, in the majority’s words, “the
tribe is protecting its own children on its own land?
The limits to the majority’s dramatic holding remain a secret. In short,
the majority gives no real indication of what it means by foreseeability, which
means that the next actor in the place of Dolgencorp will have no idea whether
it can be subjected to the uncertainties of the Indian courts.11
11
The majority’s facile statement that “under the facts of this case, we need not reach
the hypothetical factual scenarios posited by the dissenting opinion” is a duck, not an answer.
The majority suggests no test by which future parties in Dolgencorp’s circumstance can pos-
sibly know when they might be hauled into Indian court pursuant to a consensual relationship
(continued...)
24
Case: 12-60668 Document: 00512395560 Page: 25 Date Filed: 10/03/2013
No. 12-60668
III.
Although Dolgencorp failed to assert timely that the tribal court lacks jur-
isdiction to adjudicate Doe’s claim of negligent hiring, training, and supervision
—because Doe failed adequately to allege and prove that the conduct underlying
that claim occurred on the reservation—I would not stop there, as the majority
does. This case presents the sort of “extraordinary circumstances” that justify
considering a claim presented for the first time on appeal. See N. Alamo Water
Supply Corp. v. City of San Juan, Tex., 90 F.3d 910, 916 (5th Cir. 1996).
“Extraordinary circumstances exist when the issue involved is a pure ques-
tion of law and a miscarriage of justice would result from our failure to consider
it.” Id. The issue raised by Dolgencorp is a pure question of law that requires
no factual development in the district court. Whether its argument is waived
turns on whether it has met its burden to show that a miscarriage of justice
would result from the panel’s failure to consider it. See AG Acceptance Corp. v.
Veigel, 564 F.3d 695, 700 (5th Cir. 2009).
To identify a miscarriage of justice, “we have often considered whether the
alleged error is obvious or merely debatable.” Id. at 701. In this case, the
alleged error is obvious. As the majority notes, “Montana and its progeny permit
tribal regulation of nonmember conduct inside the reservation that implicates
the tribe’s sovereign interests.” Plains Commerce Bank, 554 U.S. at 332 (empha-
sis added). Montana contains an exception for “civil jurisdiction over non-
Indians on their reservations.” Id. at 329 (emphasis added). The Court has given
no hint that tribal jurisdiction extends to activity taking place outside of Indian
country, as did the hiring, training, and supervision here.12
11
(...continued)
such as the apprentice program.
12
See also Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 938
(continued...)
25
Case: 12-60668 Document: 00512395560 Page: 26 Date Filed: 10/03/2013
No. 12-60668
Failure to consider the argument regarding off-reservation conduct causes
significant harm to Dolgencorp and does violence to the law. Cf. AG Acceptance,
564 F.3d at 701. Dolgencorp will be required, without usual procedural and con-
stitutional protections and in an unfamiliar forum, to defend its off-reservation
training, hiring, and supervision procedures. The majority opinion also has pro-
found implications for the due-process rights of other non-Indians who do busi-
ness on Indian lands in Mississippi, Louisiana, and Texas. The majority’s con-
clusion is flawed, because the Indian court lacks jurisdiction over Doe’s claim of
negligent hiring, training, and supervision.
As already explained, the Indian court also lacks jurisdiction over the on-
reservation conduct for which Doe seeks to hold Dolgencorp vicariously liable,
because the conduct does not threaten Indian self-government, nor is there a
foreseeable nexus between the whole body of tribal tort law and Dolgencorp’s
voluntary participation in a brief internship program. The majority’s stunning
pronouncement expands Indian-court jurisdiction over nonmember defendants
far beyond the scope permitted by the Supreme Court or any other appellate
authority. It is grave error from which I respectfully dissent.
12
(...continued)
(9th Cir. 2009) (“[T]ribal jurisdiction is, of course, cabined by geography: The jurisdiction of
tribal courts does not extend beyond tribal boundaries.”); Hornell Brewing Co. v. Rosebud
Sioux Tribal Court, 133 F.3d 1087, 1091 (8th Cir. 1998) (“[N]either Montana nor its progeny
purports to allow Indian tribes to exercise civil jurisdiction over the activities or conduct of
non-Indians occurring outside their reservations.”). But see DISH Network, 725 F.3d
at 883–85.
26