IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-60668 March 14, 2014
Lyle W. Cayce
DOLGENCORP, INC.; DOLLAR GENERAL CORP, Clerk
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
ON PETITION FOR REHEARING EN BANC
(Opinion October 3, 2013, 732 F.3d 409)
Before SMITH, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for panel rehearing is DENIED. The court having been
polled at the request of one of its members, and a majority of the judges who
are in regular active service and not disqualified not having voted in favor
No. 12-60668
(FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is
DENIED.
In the en banc poll, 5 judges voted in favor of rehearing (Judges Jones,
Smith, Clement, Owen, and Southwick), and 9 judges voted against rehearing
(Chief Judge Stewart and Judges Jolly, Davis, Dennis, Prado, Elrod, Haynes,
Graves, and Higginson).
ENTERED FOR THE COURT:
/s/ James E. Graves, Jr.
JAMES E. GRAVES, JR.
United States Circuit Judge
JERRY E. SMITH, Circuit Judge, joined by JONES, CLEMENT, OWEN, and
SOUTHWICK, Circuit Judges, dissenting from the denial of rehearing en banc:
The opinion for the panel majority, although well crafted, takes Indian
law well beyond anything supported by applicable precedent. I respectfully
dissent from the denial of rehearing en banc.
I have explained why the majority opinion is error. See Dolgencorp, Inc.
v. Miss. Band of Choctaw Indians, 732 F.3d 409, 419−24 (5th Cir. 2013)
(Smith, J., dissenting). But error―indeed even grave error, as here―is ordi-
narily not enough to warrant en banc review. Such rehearing is justified if “the
proceeding involves a question of exceptional importance.” FED. R. APP. P.
35(a)(2). That test is easily met here, because “[t]his ruling profoundly upsets
the delicate balance that the Supreme Court has struck between Indian tribal
governance . . . and American sovereignty.” Dolgencorp, 732 F.3d at 419.
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Until now, no circuit court of appeals had upheld Indian-court jurisdic-
tion, under the so-called “first exception” announced in Montana v. United
States, 450 U.S. 544, 564 (1981), over a tort claim against a non-Indian defen-
dant. The holding is ambitious, to say the least, coming from a circuit that
decides little Indian law. If this court is to work such a change in established
precedent, it should be the careful work of the full court and not just a two-
judge majority.
The panel majority emphasizes the reprehensible nature of the alleged
act by opining 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.” Dolgencorp, 732 F.3d at 415. Even this horrendous deed,
however, does not implicate “tribal self-government” or the tribe’s ability “to
control internal relations.” Montana, 450 U.S. at 564. Moreover, no remedy is
lost, because it is undisputed that the state courts of Mississippi are fully
empowered to vindicate the plaintiff’s rights; this is mainly a turf battle over
whether Indian sovereignty trumps the right of a non-Indian to have its case
tried in an American forum.
As I showed in dissent, all of the Supreme Court’s post-Montana deci-
sions have tended to limit Indian-court jurisdiction in cases such as this.
Nowhere has the Court endorsed no-holds-barred Indian jurisdiction requiring
non-Indians to defend, on the basis of implicit consent by their presence and
activity on a reservation, tort actions of whatever nature. The Supreme Court’s
recent pronouncement is plain: Regulation of the affairs of non-Indians “must
stem from the tribe’s inherent sovereign authority to set conditions on entry,
preserve tribal self-government, or control internal relations.” Plains Com-
merce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337 (2008) (citing
Montana, 450 U.S. at 564).
An act committed by a non-Indian on an Indian―even where the alleged
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facts are as distasteful as these―should not be a vehicle for disrupting the
carefully-drawn line separating tribal and U.S. sovereignty. I respectfully
dissent.
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