New York Times

WASHINGTON — The Supreme Court on Monday seemed poised to limit the power of Indian tribal courts to hear civil cases against outsiders.

Monday’s case, Dollar General Corp. v. Mississippi Band of Choctaw Indians, No. 14-1175, started when a 13-year-old Indian boy accused the manager of a Dollar General Store of sexually molesting him.

The manager was not a member of the tribe. The store was on Indian land, and the company that owned the store had agreed to have at least claims concerning its lease heard in tribal court.

The boy and his parents sued the manager and the company in tribal court. A federal appeals court allowed the suit against the company to proceed, reasoning that the company’s connection to the tribe was sufficient to allow the tribal court to have jurisdiction.

Several of the Supreme Court’s more liberal members seemed inclined to agree, but they were in the minority.

“What’s wrong with the tribal courts?” Justice Stephen G. Breyer asked. “We’ve seen lots of tribal courts, which I can’t distinguish them in the fairness and procedure and so forth from every other court in the country.”

Thomas C. Goldstein, a lawyer for the company, said the quality and independence of tribal courts varied but that all of them fell short as a constitutional matter.

“The Constitution is the supreme law of the land in the United States,” he said. “This court is the Supreme Court of the United States.” But those “bedrock principles,” he added, do not apply to tribal courts.

The Supreme Court has said that that the Bill of Rights does not apply to Indian tribal governments, though in 1968 Congress imposed some comparable protections in a statute.

Mr. Goldstein said the parties to a contract could explicitly agree to have their cases heard in tribal courts, just as they could agree to arbitration. He added that Congress could, within limits, expand the jurisdiction of tribal courts.

Justice Anthony M. Kennedy seemed to disagree on the second point. “I don’t know what authority Congress has to subject citizens of the United States to that nonconstitutional forum,” he said, referring to tribal courts.

Neal K. Katyal, a lawyer for the tribe, the Mississippi Band of Choctaw Indians, butted heads with Chief Justice John G. Roberts Jr. early in his argument. Mr. Katyal said that allowing the tribal court to hear the case was routine and unexceptional.

Chief Justice Roberts responded that “we have never before recognized Indian court jurisdiction over a nonmember” of the tribe.

Mr. Katyal said that several decisions suggested that such suits were proper. (There is no dispute that tribal courts may not prosecute nonmembers for crimes.) He added that the company, Dollar General, had in effect agreed to be sued in tribal court.

“Nobody forced Dollar General to show up on the tribal lands,” he said in a response to a question from Justice Kennedy. “Nobody forced Dollar General to sell to these customers. Nobody forced Dollar General to have this Youth Opportunity Program. And yes, like every employer in this country, Justice Kennedy, when you do those things, you open yourselves up to the reasonable liability that follows.”

Chief Justice Roberts repeatedly raised an objection about the juries in tribal courts. “Does it violate due process for a nonmember to be subjected to a jury verdict where the jury consists solely of tribal members?” he asked. Justice Kennedy said the answer was no because “tribes are not governed by the due process clause,” a point that seemed to trouble him.

Justice Breyer said it was not unusual for defendants to have to face presumptively hostile hometown courts. A Yankees fan, for instance, he said, might be tried before a Massachusetts jury.

Mr. Katyal agreed, and the chief justice jumped in.

“You think that’s the same as subjecting a nonmember accused of a terrible assault on an Indian to jurisdiction before a jury consisting solely of members of the tribe?” Chief Justice Roberts asked.

Mr. Goldstein concluded his argument by urging the court to articulate a clear principle. “The other side says we have a test about nexus and foreseeability,” he said. “I have a standard that says, write it down in a contract.”

Justice Sonia Sotomayor said that would represent a blow to Native Americans. “What then,” she asked, “remains of the sovereignty of the Indians?”