As the dust settled from Monday’s Supreme Court hearing in Dollar General v. Mississippi Band of Choctaw Indians, initial impressions of the case and the general direction of the court were discussed by legal experts across Indian country. Observers say the case, which has drawn global attention to crimes committed by non-Indians on Indian lands, has the potential to erase any civil liability for criminal perpetrators and corporate malfeasance for the 567 sovereign tribal governments that currently maintain nation-to-nation status with the United States.
Regardless of the outcome, however, court watchers concur that this session is proving to be a historic year for Indians at the nation’s highest court.
Dollar General began in 2003 on the Choctaw Indian Reservation in Mississippi when a 13-year-old boy alleged that he was sexually assaulted by the store’s non-Indian manager. After the U.S. Attorney’s office in Jackson declined to press charges, the boy’s parents sued the manager and the company in tribal court for $2.5 million in actual and punitive damages.
Even though Dollar General had signed a lease agreement with the Mississippi Choctaw nation in which it had expressly agreed to comply with tribal law from any claims arising from its lease, the retail giant moved to dismiss the case based on lack of jurisdiction. Its motion was denied by the tribe’s lower court, the MBCI Supreme Court and the 5th Circuit Court of Appeals in New Orleans. But last summer, however, the U.S. Supreme Court granted a hearing in the case to determine whether non-Indians can be sued for tort and contract claims on Indian lands.
“Neither the advocates or the Justices took the time to address an important aspect of the historical arguments made in this case: What weight should be accorded to discerned intent of federal Indian policies rooted in eras vastly different than today’s federal government support for tribal self-determination,” wrote lawyer Ed Gehres in his analysis of Monday’s arguments for Lyle Denniston Law News. “The Court heard at least some historical arguments from all of the advocates. Yet none of the advocates provided context for why their view of history was more compelling, and none of the Justices took the questions of weight and context head on.”
Tribal lawyers from across the country seemed to concur with Gehres, who heads the Native American and Tribal Business practice group for the Van Ness Feldman Law Firm in Washington, D.C. Among their concerns was a seeming lack of insistence for or acknowledgment of well-established legal precedents in regards to tribal sovereignty.
“Upon review the Court seemed unaware of its own Indian law precedent and some Justices seemed to take a broader stance in weakening tribal jurisdiction than was urged by Dollar General,” said Chrissi Nimmo, Senior Assistant Attorney General for the Cherokee Nation, the largest Indian tribe in the country. “The Court and Dollar General both seemed concerned about Dollar General’s due process rights in tribal court?but the American legal system is already designed to address those issues.”
Matthew Fletcher, who is a Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center, expressed concern about a lack of “judicial discipline.” Writing on the legal blog Turtletalk, Fletcher maintained that Dollar General was an easy case that should not have been a candidate for a Supreme Court hearing: “But the oral argument, coupled with previous positions taken by certain Justices, suggests that there is a judicial discipline problem in federal Indian law.”
“Moreover, that Justices Scalia, Kennedy, and Thomas (who as usual did not speak but has written as such) suggested that the Supreme Court is in a position to second-guess or undo inherent tribal sovereign authority where Congress and the Executive branch have made considered judgments that tribes do have civil jurisdiction power on their own land is another expression of a lack of judicial discipline — the Supreme Court is not allowed to undo policy judgments expressed by the other branches because it disagrees with them,” Fletcher wrote.
“I suspect that Justice Kennedy in particular is thinking about cases not currently pending before the Court but likely will reach the Court in the next few years – Native Hawaiian sovereignty, ICWA, VAWA, and perhaps even Fisher v. UT-Austin, being argued today,” Fletcher told ICTMN. “Those cases do or will involve affirmative Congressional reaffirmations of inherent power and so do implicate federal constitutional concerns way beyond this tort case. Remember that Congress never needed to reaffirm tribal inherent authority to adjudicate tort claims against nonmembers because tribes already possessed it (subject to ICRA and other limitations imposed by the Court itself).”
Richard Guest, who is the director of the Tribal Supreme Court Project for the Native American Rights Fund, said that the current term of the Supreme Court is shaping up to be the busiest since the project was established nearly 15 years ago. In addition to Dollar General, Guest said the high court heard oral arguments last week in Menominee Indian Tribe v. the United States, for claims brought under the Indian Self-Determination Act regarding “equitable tolling,” and will hear Nebraska v. Parker, a case regarding Indian reservation boundaries that have been diminished or disestablished, this January.
“At present, the Court will hear and decide three Indian law cases on the merits, including Menominee, Dollar General, and Nebraska, with a possible fourth Indian law case, U.S. v. Bryant, [which involves the question of whether tribal court criminal convictions for domestic violence may be used in a federal court prosecution as a habitual domestic violence offender], waiting in the wings,” said Guest.
With a near-record number of Indian law cases before the Supreme Court, “This term has the potential to become a ‘watershed’ term for the future development of Indian law,” Guest added.
In anticipation of the Court’s ruling, which is expected sometime in April, court experts say that both tribal nations and corporations will be more vigilant about jurisdiction and proper forum in future agreements.
“The outcome of this case is tough to call after the argument,” said Gehres. “It looks to be a case that may be decided on a tight vote. But one thing is absolutely certain. Regardless of the outcome, sophisticated tribes and businesses will spend increasing amounts of energy at the bargaining table fashioning partnerships where consents to applicable law and forum are clear and express.”