‘A Persistent Problem’
The Supreme Court case Dollar General v. Mississippi Band of Choctaw Indians began with an alleged sexual assault of a minor by the non-Indian manager of a Dollar General store on the Choctaw Indian Reservation in Mississippi. As the plaintiff, Dollar General is asking the Supreme Court to overturn three lower court opinions that held that the discount retail chain had agreed to tribal jurisdiction, in the form of a heavily negotiated contract, when it became a lessee on Choctaw nation land.
The deeper issue, however, is whether tribal nation courts should have jurisdiction in civil tort and contract claims involving non-Indians on Indian lands. If the company is successful in overturning tribal civil jurisdiction, leading historians and legal experts say that the potential long-term impact could affect nearly every aspect of tribal life in America.
As Indian country awaits the outcome, Dollar General has laid bare a history of corporate greed, wholesale Native uprooting and empire building reaching back some 150 years—involving, of all things, the railroad industry.
In September 2015, the powerful Association of American Railroads (AAR) quietly submitted a “friend-of-the-court” brief in support of Dollar General, some three months before the high court heard the case. Founded in 1934, the AAR is a trade organization which represents the major freight railroads of the United States, Canada and Mexico, including Amtrak?which is owned by the U.S. government.
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While extolling the “important and beneficial working relationships” the railroads enjoy with the tribes, the AAR in its brief urged the high court to nullify tribal jurisdiction in “all civil actions” against non-members.
The problem, the railroad lobby remonstrated, is not only the multiple tribal jurisdictions with which its corporate membership must negotiate. There is also the potential, the brief argued, for “devastating” claims for injunctive relief by tribes and their members.
“[R]ail operations, like all heavy industry, entail risk of injuries that may give rise to tort claims against rail operators,” the railroad association wrote. “For these and other reasons, uncertainty as to whether tribal courts may have jurisdiction, or what laws and procedures may apply, is a persistent problem for AAR’s member railroads.”
‘Big Game’
Leading historians and legal experts, however, say that the AAR’s intercession reveals a more ominous corporate objective in the association’s business relationships with the tribes.
“This case is big game for the railroads and corporations because it goes well beyond an alleged sexual assault in Mississippi,” said Richard White, the Margaret Byrne Professor of American History at Stanford University. “Dollar General is an important case for all these companies because it has the potential to erase any liability for anything they might do on Indian lands.”
“There is a long and deep history in the hostility of the railroads toward the tribes that goes all the way back to the 1860s,” White said. “Certainly, they will say that they’re simply concerned about jurisdiction, but Indians matter to them only insofar as they can profit from them, and environmental liabilities are a threat to their bottom line. So jurisdiction is a major obstacle in their way.”
The entrance of the railroads into the discussion about modern tribal jurisdiction recalls their notorious history in breaking up tribal lands and forcing Indians onto reservations in the 1800s, said White, a MacArthur Fellow and author of Railroaded: The Transcontinentals and the Making of Modern America (W.W. Norton, 2012), a finalist for the Pulitzer Prize in History. As land speculators, surveyors and rail companies rushed to cash in on newly acquired land titles for easements and rights-of-way, Indian tribes were viewed as an obstacle to “progress.”
To clear the way and protect their interests, the railroads depended on the U.S. military to send troops to secure their rail lines. Numerous armed clashes erupted across the western United States as tribes fought in vain to protect their homelands, launching the so-called “Indian Wars.”
“It’s not necessarily the trains or the tracks, it’s what they own: rights-of-way and easements all over the country that run through Indian lands that they took by hook or by crook or military force,” said Eric Reed, a Dallas-based attorney who is a member of the Choctaw Nation of Oklahoma. “Thousands and thousands of miles of throughways that they obtained at well below or no market value?and they own or lease it in perpetuity.”
To this day, said Reed, a former Special Assistant U.S. Attorney, the railroads still retain ownership and control over those same easements and rights-of-way they obtained in the 1800s. Thus, he argues, AAR’s interest in intervening in Dollar General takes on a more complex intention than most friend-of-the-court briefs.
“The great artifice of the AAR’s argument is [that it is] not just about trains,” said Reed. “It extends to roads, pipelines, telephone lines, utilities, cell towers, coastal waterways and shipping lanes on easements and rights-of-way that are owned, leased or granted by the railroads. It includes every conceivable commercial interest involving energy, communications, trucking, transportation, shipping and warehousing on or near Indian lands.
“And evidently they want absolutely no legal consequences for torts, contract violations, or even civil liability for criminal acts against the tribes, their members?or their children.” Under most current tribal business practices, Reed said, corporations regularly and willingly agree to submit to tribal jurisdiction in order to do business on Indian lands.
The AAR did not respond to ICTMN requests for comment by press time.
‘An Enormous Scam’
The roots of the present case arose in the 1850s, when the slave and non-slave states competed for control of the first transcontinental railroad to the Pacific.
Sen. Stephen A. Douglas of Illinois, hoping to secure a rail connection to Chicago, contrived and pushed through the Kansas-Nebraska Act, which paved the way for the building of the Union Pacific in the 1860s—and helped trigger the Civil War. It is considered one of the worst political blunders in American history, said Elliott West, the Alumni Distinguished Professor of History at the University of Arkansas and a specialist in the social and environmental history of the American West, setting the stage for removing tens of thousands of Indian people off their lands to clear the way for the railroads.
“The development of the transcontinentals was an enormous scam. The railroads were built by men who used [free land grants from the government] to make themselves enormous amounts of money,” said West. “The thinking was, ‘If you build it, they will come.’ And they were intent on bringing in settlers, farmers and ranchers.
“But the trouble with that theory was, there was nothing to farm. The land was not arable for crop production in the Northern Plains. So, you had all this scrambling to connect railroads?out in the middle of nowhere.”
Though non-Indian populations in the Plains have continued to dwindle in the last century, what remained, said West, are the railroads and their indigenous neighbors. The tribes, therefore, have an even higher stake in ensuring that their communities are safe from any disasters that may befall them, regardless of whether those disasters arises from corporate, environmental or human error.
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“You cannot claim to begin to understand the context of the Dollar General case in American history unless you can grasp and recognize the point of view of the cultures and people who were here so much longer and yet have somehow managed to survive,” said West, the author of The Last Indian War: The Nez Perce Story (Oxford University Press, 2009). “Unless you make some effort to look at these events through their eyes, you’ll never get it.”
‘We’re Not Stuck’
Having endured centuries of broken treaties, governmental neglect, and the tension between Congress and the courts over the welfare and legal status of Indian tribes, establishing their own court systems and legal codes were necessary to protect their lands and people, said Brian Cladoosby, chairman of the National Congress of American Indians.
He dismissed the AAR’s contention that dispute resolution in Indian country is “fraught with uncertainty.” Tribes, he argued, are modern governments with court systems that are as sophisticated as their non-Indian municipal counterparts.
“[The railroads’] mentality is still in the 19th century, but we as Indian nations are in the 21st century, with many of us being the number one job producers in our respective states. Tribes are directly responsible for creating nearly a million jobs in the American economy,” Cladoosby told ICTMN.
“So the mentality that we are still invisible and incapable is really archaic thinking. If they took a closer look at what we’re doing, they would see that we’re not stuck in remote, landlocked areas, but are, in fact, some of the most successful business entrepreneurs in the country.”