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Supreme Court enters final stretch of historic yet unusual term

Monday, June 20, 2016

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

The U.S. Supreme Court is entering the final stretch of an unusual and historic term that saw a record four Indian law cases on the docket.

Indian Country started paying close attention last summer because the court had already agreed to hear Menominee Indian Tribe of Wisconsin v. US, a contract support costs case, and Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case. As the term opened on October 1, 2015, the justices added Nebraska v. Parker, a reservation boundary case, to the docket.

Two months later, US v. Bryant, a domestic violence case, joined the list. Indian Country hadn't seen this much activity in more than a decade and tribal advocates were concerned.

"We've got a number of cases pending in the Supreme Court that are going to impact all tribes," John Echohawk, the executive director of the Native American Rights Fund, said in late February.

Indianz.Com SoundCloud: U.S. Supreme Court Oral Arguments in Menominee Indian Tribe of Wisconsin v. United States December 1, 2015

But as EchoHawk pointed out at the meeting of the National Congress of American Indians, the drama was only beginning. Just two weeks prior, Justice Antonin Scalia unexpectedly passed away, sending shock waves throughout the nation and resulting in the loss of one of the most consistent anti-tribal voices on the high court.

And the story isn't over. With less than two weeks left in the term, the justices are still debating a decision in Dollar General, one of the most closely-watched cases in recent history.

The outcome will determine whether the Mississippi Band of Choctaw Indians can exercise authority over Dollar General, a publicly-traded company that reported $18.9 billion in net sales in 2014. Historically, the Supreme Court -- Scalia included -- has not been receptive to tribal jurisdiction over non-Indian entities.

After oral arguments on December 7, 2015, observers felt that the tribe was going to lose after winning at the 5th Circuit Court of Appeals. With Scalia out of the picture, though, the remaining eight justices seem unable to come to a clear majority.

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

But an answer did not arrive as the court reconvened on Monday morning and issued decisions in five other cases. The justices are expected to meet again on Thursday and again next week before they wrap up work on June 30.

The term otherwise has been a mostly favorable bag for Indian Country. Prior to Scalia's death, the court limited the years for which the Menominee Nation of Wisconsin can pursue contract support costs claims against the Indian Health Service.

Although the January 25 decision was unanimous, it only blocked the tribe's claims for three years, leaving other years undisturbed. Prior to the ruling, the Supreme Court, on two occasions, had confirmed that tribes must be paid fully for entering into self-determination contracts with the federal government.

In a second unanimous decision, the justices held that Congress did not diminish the reservation of the Omaha Tribe in Nebraska. The March 22 ruling was coupled by the court's refusal to hear another boundary dispute affecting the Ute Tribe of Utah.

Indianz.Com SoundCloud: U.S. Supreme Court oral arguments in Nebraska v. Parker January 20, 2016

Yet another unanimous decision backed the use of tribal court convictions in the federal system. The June 13 ruling has been hailed as a victory for tribal sovereignty by Native women and their advocates because the law at issue in the case was written to punish those who repeatedly abuse their domestic partners.

The Dollar General decision, whenever it comes, is sure to end the unanimous streak. It's been 196 days since oral arguments, when dozens of Native women held a rally on the steps of the Supreme Court to call attention to high rates of violence and abuse in Indian Country.

"We need to be able to protect our women and our children," Bonnie Juneau, a council member for the Tulalip Tribes of Washington, said as the rally moved to the lawn of the U.S. Capitol. "Justice should be applied no matter where you live."

The court's last tribal jurisdiction case was Plains Commerce Bank v. Long. By a 5-4 vote, the justices held that the Cheyenne River Sioux Tribe lacked jurisdiction over a non-Indian bank.

Indianz.Com SoundCloud: U.S. Supreme Court Oral Argument in United States v. Bryant April 19, 2016

Apart from Scalia, the majority in that case included four members who are still on the court. It would be highly unlikely that Chief Justice John G. Roberts, Justice Anthony M. Kennedy, Justice Clarence Thomas or Justice Samuel Alito have changed their minds about tribal jurisdiction since that 2008 decision.

Of the minority in Plains Commerce, 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.

If the views in Dollar General fall along those lines and no one is willing to switch votes, a 4-4 tie could end up affirming the tribe's victory at the 5th Circuit. The company would then have to answer to a lawsuit that arose after a minor, a 13-year-old tribal member, alleged sexual abuse by a non-Indian employee of a store on the reservation.

"I am praying to the Creator that they make the right decision," Melissa Pope, the chief judge for the Nottawaseppi Huron Band of the Potawatomi in Michigan, said during the rally last December.