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Long wait hints at Supreme Court tie in closely-watched tribal jurisdiction case

Monday, May 23, 2016

Native women rallied at the U.S. Supreme Court on December 7, 2015, as the justices heard arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians. Photo by Indianz.Com

It's official -- a closely-watched tribal jurisdiction case is now the oldest on the U.S. Supreme Court docket.

The justices heard arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians on December 7, 2015. Up until last week, it was one of the oldest cases without a decision.

That changed on Monday when the court issued rulings in three more cases, two of which were argued in November. Dollar General now claims a unique position amid speculation over the nature of the long wait, 168 days and counting.

The most obvious answer comes from the absence of Justice Antonin Scalia. Based on the argument alone, Indian law advocates were predicting he would join at least four other members of the court and determine that Dollar General, a publicly-traded company that reported $18.9 billion in net sales in 2014 -- does not fall under the jurisdiction of the Mississippi Band of Choctaw Indians.

Indianz.Com SoundCloud: U.S. Supreme Court Oral Argument in Dollar General Corp. v. Mississippi Band of Choctaw Indians December 7, 2015

"It was pretty clear at the argument that the typical conservatives -- the five conservatives -- were not very happy about this case and the four judges who are less conservative seemed to be on our side," John Dossett, the general counsel for the National Congress of American Indians, said in February. "But it wasn't looking good."

Without Scalia's vote, though, it appears the justices remain deadlocked. If that's indeed the situation, a 4-4 tie would result in victory for the Choctaws. Although such an outcome wouldn't set a nationwide precedent, it would benefit other tribes in the 5th Circuit Court of Appeals, which hears federal cases that arise in Louisiana and Texas in addition to Mississippi.

The Supreme Court, though, could decide to rehear the matter. But the justices didn't take that step in March when they deadlocked on a controversial labor union case that observers believe would have gone a different way with Scalia on board.

The justices might also be searching for a way out of a tie. That happened last week when they sent another high-profile dispute that affects religious groups and the Affordable Care Act back to the lower courts for a possible compromise. Again, Scalia's presence likely would have tipped the scales in a different way.

A crowd watches as the body of the late Justice Antonin Scalia is taken into the U.S. Supreme Court in Washington, D.C., on February 19, 2016. Photo by Indianz.Com

That certainly seems to be what's happening with Dollar General. When the Supreme Court last considered a tribal jurisdiction dispute, Scalia joined four conservative members in holding that the Cheyenne River Sioux Tribe did not have authority over a non-Indian bank. The June 2008 decision in Plains Commerce Bank v. Long was 5-4.

The same conservative-leaning bloc remains on the court so it would be surprising if Chief Justice John G. Roberts, Justice Anthony M. Kennedy, Justice Clarence Thomas or Justice Samuel Alito changed their minds about tribal jurisdiction and went a different way with respect to the Mississippi Choctaws.

Of the more liberal wing in the case, only Justice Ruth Bader Ginsburg and Justice Stephen G. Breyer remain on the court. They have been joined by Justice Sonia Sotomayor, who has emerged as Indian Country's most visible ally and Justice Elena Kagan, who is the most junior member but also has become a reliable voice for tribal interests.

Incidentally, it only took the court 72 days to resolve Plains Commerce and the majority opinion was written by Chief Justice Roberts. Based on the rulings from cases that were heard around the same time as Dollar General, Supreme Court observers believe he might be in charge of writing the decision, in whatever form it ends up taking.

Native women rallied on the steps of the U.S. Supreme Court as the justices heard Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case, on December 7, 2015. Photo by Indianz.Com

"This also suggests, I believe, that Roberts is writing either Dollar General or Fisher," attorney Amy Howe wrote on the influential SCOTUSBlog on Monday, referring to Dollar General and Fisher v. University of Texas, an affirmative action case.

But it's possible that Roberts might just be handling Dollar General, she added. When the Supreme Court last considered the race-conscious admissions policies of the University of Texas at Austin, Kennedy wrote the majority opinion.

"I think it's too hard to call," Howe wrote on the blog when asked about the possible authors of the Dollar General and Fisher decisions.

After Dollar General, Fisher is the second-oldest on the docket. While Fisher is considered higher profile in terms of the nationwide impact, Dollar General has drawn significant interest in Indian Country -- a slew of briefs were filed by tribal interests and even some states joined the cause.

Native women also turned out in force for the oral argument to defend the ability of the Choctaws to hear a lawsuit that arose when a non-Indian employee of Dollar General was accused of sexually assaulting a minor. The incident occurred at a store on the reservation that's located on trust land and operated under a lease with the tribe.

"We need to be able to protect our women and our children," Bonnie Juneau, a council member for the Tulalip Tribes, said during the Quilt Walk for Justice rally at the U.S. Capitol. "Justice should be applied no matter where you live."

Despite the long wait for Dollar General, Indian Country waited even longer for a ruling in Michigan v. Bay Mills Indian Community. That case took 210 days to resolve.

The court is expected to issue at least one more decision next Tuesday.