Consent After Dollar General
Last month the United States Supreme Court Court heard arguments in the tragic case titled Dollar General v. Mississippi Band of Choctaw Indians. In that case a retailer locates a store on tribal land and consents to the tribe’s rules until an employee of the store allegedly molests a young trainee. When the issue goes to tribal court the retailer argues that the court did not have the power (jurisdiction) to hear the case. The retailer’s argument contradicts its consent to the tribe’s rules and may undermine tribal sovereignty if the U.S. Supreme Court agrees with the retailer. Until the court issues its decision, consider bolstering the consent language in tribal employment documents like handbooks, standard operating procedures and job descriptions.
Prior to the Dollar General argument I recommended the following consent language incorporated into tribal employee handbooks and whenever the handbook is changed:
“As an employee of the ABC Tribe (the “Tribe”), I consent to the exclusive jurisdiction of the Tribe, these Handbook rules and the Tribal Court for any and all disputes in connection with my employment with the Tribe. I also consent to the application of Tribe’s law, both substantive and procedural, regarding any and all proceedings, matters and things relating to my employment relationship with the Tribe.”
Following the argument I am recommending a more detailed consent which further evidences more meaningful consent from employees. Here is a sample:
“As an employee of the ABC Tribe (the “Tribe”), I consent to the exclusive jurisdiction of the Tribe, these Handbook rules and the Tribal Court for any and all disputes in connection with my employment with the Tribe. I also consent to the application of Tribe’s law, both substantive and procedural, regarding any and all proceedings, matters and things relating to my employment relationship with the Tribe. I consent to the Tribe’s grievance procedure and to the Tribe’s courts for any and all disputes related to my employment with the Tribe. I understand that the reference to exclusive jurisdiction means that I do not have a right to sue the Tribe, its officials or employees in any other court or forum than the court or forum provided by the Tribe.”
Recommendation: Obtain the explicit written consent of all employees to the terms and conditions of employment. Those terms and conditions of employment are contained in handbooks, procedures, job descriptions and other documents. Consent to the rules is important for all employers but even more important for tribal employers.