Matthew Fletcher: Supreme Court takes up tribal jurisdiction case

Law | Opinion

Matthew Fletcher: Supreme Court takes up tribal jurisdiction case

Posted: Tuesday, December 8, 2015

Native women send a message to the U.S. Supreme Court and Dollar General on December 7, 2015. Photo by Indianz.Com

Professor Matthew Fletcher of Turtle Talk discusses oral arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case that was heard by the U.S. Supreme Court on December 7:

If the Justices collectively had more judicial discipline, this would be one of their easiest cases, and likely would not be a candidate for certiorari review at all. But the oral argument, coupled with previous positions taken by certain Justices, suggests that there is a judicial discipline problem in federal Indian law.
First. Why this case is easy should have been adamantly clear when counsel for the tribe read the language of the business license in which Dollar General consented to the application of all manner of tribal laws, and agreed to abide by those laws. It doesn’t clear any clearer or express. Nor should it have to.
Second. Why there is a judicial discipline problem is evident where Justice Kennedy insisted from the outset that tribal sovereignty and Congression authority in relation to tribal sovereignty was in the table Monday, an issue not before the Court if the statement of questions presented is to be believed. 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. Finally, that Justices Kennedy, Scalia, Thomas (likely, as noted above), and possibly Alito were to disregard or significantly modify the Montana 1 analysis in the manner offered by counsel for Dollar General, it would mean that the Court’s statements favoring and assuming tribal jurisdiction in Mazurie, Colville, Montana itself, Merrion, Mescalero, National Farmers, Iowa Mutual, Strate, and Plains Commerce are to be ignored because those three or four Justices don’t agree with them now.

Get the Story:
Matthew L.M. Fletcher: Reflections on the Dollar General Argument (Turtle Talk 12/8)

More Opinions:
Stephen Pevar: Native Americans' sovereignty is at risk, and the high court must help save it (The Guardian 12/7)
Noah Feldman: Dollar General Tries to Shake Up Tribal Law (BloombergView 12/7)
Garrett Epps: Who Can Tribal Courts Try? (The Atlantic 12/7)