Native women rallied on the steps of the U.S. Supreme Court on December 7, 2015, as the justices heard arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Law | National

Supreme Court still hasn't issued decision in tribal jurisdiction case

Thursday, April 21, 2016

The U.S. Supreme Court has been busy with Indian law this term but one closely-watched case remains under consideration.

The justices heard arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians on December 7, 2015, and Native women turned out in force to stand up for tribal sovereignty. Their Quilt Walk for Justice called attention to the underlying issue in the case -- protecting the most vulnerable in Indian Country from abuse.

More than four months later, the court is still wrestling with the matter. The ruling will determine whether Dollar General, a publicly-traded company that reported $18.9 billion in net sales in 2014, must submit to the jurisdiction of the Mississippi Band of Choctaw Indians.

Dollar General is one of the oldest pending cases on the docket. According to the influential SCOTUSBlog, only four cases that were argued in October and November are older.

The wait stands in contrast to the court's handling of two other Indian law cases. The decision in Menominee Indian Tribe of Wisconsin v. US was issued 55 days after oral argument and the decision in Nebraska v. Parker came 62 days after argument.

Still, Indian Country is used to long waits. During its October 2013 term, the court took 210 days to issue a decision in Michigan v. Bay Mills Indian Community. The wait was one of the longest in recent history.

"What it tells us is that the court is struggling," Richard Guest, an attorney with the Native American Rights Fund, said at the time.

For good or bad, tribal courts are fresh in the minds of the justices. On Tuesday, they heard arguments in US v. Bryant, a case that will determine whether tribal convictions can be used against offenders who repeatedly abuse Native women.

During the hearing, Elizabeth B. Prelogar of the Solicitor General's Office at the Department of Justice noted that Congress has repeatedly endorsed tribal courts. In addition to the law at issue in Bryant, tribes have won critical provisions in Tribal Law and Order Act of 2010 and the Violence Against Women Act of 2013 that respect their inherent authority.

"I think this is notable because I think it shows that Congress, in recent years, every time it's looked at how tribal courts are functioning and has made a determination about the rights and and what to recognize in those tribal court proceedings, it's acted to recognize expanded authority for tribal courts, both with their sentencing authority, with respect to their jurisdiction," Prelogar told the court.

Dollar General, though, is fundamentally different than Bryant in a key respect and that is likely why the decision might be taking a while. The party objecting to tribal jurisdiction is a non-Indian party and the last time the Supreme Court considered that issue, in Plains Commerce Bank v. Long, the non-Indian party won.

That decision came 91 days after argument. For Dollar General, it's been 136 days.

Supreme Court Documents:
Oral Argument Transcript: Dollar General v. Mississippi Band of Choctaw Indians (December 7, 2015)