Law | Opinion

Garrett Epps: Supreme Court and the outposts of the empire

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

The U.S. Supreme Court has yet to catch up with national reality, law professor Garrett Epps argues as he looks at the Indian law cases on the docket:
Indians have already appeared: in Dollar General Corporation v. Mississippi Band of Choctaw Indians, argued in December, the Court must decide whether Indian tribal courts can hear lawsuits against corporations for torts they allegedly commit on the reservation.

Tribes, and tribal courts, will be back at 1 First St NW later this term. Nebraska v. Parker is a challenge to the Omaha Tribe’s right to tax a liquor store located on land ceded to the tribe by treaty in 1854 but sold by it to private buyers, under a statute passed by Congress, beginning in 1882. Tribal courts are the issue in United States v. Bryant. In 2011, Michael Bryant, an enrolled member of the Northern Cheyenne tribe of southeastern Montana, was indicted in federal court on two counts of domestic assault, and also charged as a “habitual offender.” The “habitual offender” status—which can raise the sentence to as much as 10 years in prison—derived from multiple prior misdemeanor domestic-violence convictions in Northern Cheyenne Tribal Court. If those cases had been heard in state or federal court, Bryant would have been entitled to appointed counsel. But the Sixth Amendment doesn’t apply to tribal courts, and the Indian Civil Rights Act does not require tribes to supply counsel for offenses that carry less than a year in jail. Bryant is challenging the indictment on Sixth Amendment grounds.

Tribal sovereignty advocates are alarmed—an amicus brief by the National Congress of American Indians says that Congress has authorized tribal courts to conduct these trials without counsel, and that a victory for Bryant would “seriously impede” efforts to control domestic violence in Indian country—which is endemic.

The Court is relentlessly whittling away at tribal-court jurisdiction; a victory for Bryant would reduce their power to try members of the tribe, even with congressional approval. During the Dollar General argument, Justice Anthony Kennedy grew visibly perturbed on the bench at the idea that “extra-constitutional entities” could try American corporations. Will that discomfort lead him to hobble the ability of tribes to try even their own members? It’s one thing to throw a protective arm over Dollar General; another thing to shield a multiple-count abuser.

Get the Story:
Garrett Epps: Can the Constitution Govern America's Sprawling Empire? (The Atlantic 12/20)

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