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 (CC BY-NC-SA 4.0)

Supreme Court debates 'inherent' tribal sovereignty in new ruling

As Indian Country continues to wait for a decision in a closely-watched tribal jurisdiction case, a different sovereignty dispute is once again exposing divisions within the U.S. Supreme Court.

By a narrow majority vote, the justices on Thursday held that the Commonwealth of Puerto Rico cannot prosecute people who were already punished for the same crime under the laws of the United States. The court held that Puerto Rico's constitutional authority derived from Congress and not from its "inherent" sovereignty.

But while the case had nothing to do with Indian Country, the court's majority decision, a concurring opinion and a dissent in fact mentioned tribal sovereignty and not always in a positive light

Writing for the majority, Justice Elena Kagan reaffirmed that tribes are "separate" sovereigns from the United States. That means they can prosecute people who were already punished under federal law without violating the Double Jeopardy Clause of the U.S. Constitution.

"A tribe’s power to punish pre-existed the Union, and so a tribal prosecution, like a State’s, is 'attributable in no way to any delegation . . . of federal authority,'" Kagan wrote, citing the court's precedent in United States v. Wheeler, a Double Jeopardy case that arose in Indian Country in the 1970s.

That line of thinking was embraced as recently as 2004, when the court resolved United States v. Lara by a 7-2 vote. But Justice Steven G. Breyer, who wrote the decision in Lara, dissented from the Puerto Rico majority and expressed concerns about the way his colleagues approached the role of Congress in recognizing -- or not recognizing, as he argued -- the inherent authority of tribes.

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

"This Court has explained that the tribes possess an independent authority to enact criminal laws by tracing the source of power back to a time of ‘primeval’ tribal existence when ‘the tribes were self-governing sovereign political com­munities,'" Breyer wrote in a dissent that was joined by Justice Sonia Sotomayor. "But as the Court today recognizes, this prelapsarian independence must be read in light of congressional action—or, as it were, inac­tion."

"In this sense, Congress’ pattern of inaction (i.e., its choice to refrain from with­ drawing dual sovereignty) amounts to an implicit decision to grant such sovereignty to the tribes," Breyer continued. "Is not Congress then, in this way, the 'source' of the Indian tribes’ criminal-enforcement power?"

In light of those questions, Breyer said there was no reason why the court should treat Puerto Rico any differently. In that respect, his dissent was more about affirming Puerto Rico's sovereignty than an attack on tribes.

On the other hand, Justice Clarence Thomas was clear with his intentions. Although his opinion was not labeled a dissent because he agreed with the outcome, he took great pains to separate himself from the court's affirmation of tribal sovereignty.

"I agree with that holding, which hews to the Court’s precedents concerning the Double Jeopardy Clause and U. S. Territories. But I continue to have concerns about our precedents regarding Indian law and I cannot join the portions of the opinion concerning the application of the Double Jeopardy Clause to successive prosecutions involving Indian tribes," Thomas wrote in his 13-line opinion.

Thomas has raised similar issues in the past. He has written separately in Indian law cases in what appears to be an attempt to reopen or undermine the well-settled precedents that have benefited tribes.

"Justice Thomas’s radical vision of the law also has touched Indian law," law professor Matthew Fletcher once wrote on Turtle Talk. In a newer post, Fletcher analyzed the writings in the Puerto Rico case and concluded that Indian Country dodged a "bullet".

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 (CC BY-NC-SA 4.0)

The Supreme Court has often been fractured when it comes to Indian law. Some of the more high-profile cases, like Michigan v. Bay Mills Indian Community and Adoptive Couple v. Baby Girl, have been decided by tight 5-4 outcomes.

The death of Justice Antonin Scalia and the court's delay in resolving Dollar General Corporation v. Mississippi Band of Choctaw Indians, the oldest case on the docket, underscores the divisions. Without a clear majority, the court has yet to determine whether the Mississippi Band of Choctaw Indians can exercise authority over Dollar General, a non-Indian company that reported $18.9 billion in net sales in 2014.

The last tribal jurisdiction case that came before the court was Plains Commerce Bank v. Long and it was decided by a 5-4 vote. Besides Scalia, four of the justices who ruled that the Cheyenne River Sioux Tribe lacked jurisdiction over a non-Indian entity are still sitting on the court.

It appears unlikely that those any of those members -- a group that includes Chief Justice John G. Roberts -- have changed their minds about tribal sovereignty since that 2008 decision.

If the justices are unable to come to a clear majority, a 4-4 decision would result in a victory for the Mississippi Band because the tribe won the case at the 5th Circuit Court of Appeals.

But a tie would not set a national precedent so Indian Country as a whole would not necessarily benefit from an impasse. However, tribes in the 5th Circuit, which includes Louisiana and Texas, could benefit.

The court heard arguments in Dollar General on December 7, 2015. It's possible a decision could be issued next week.

U.S. Supreme Court Decision:
Commonwealth of Puerto Rico v. Sanchez Valle (June 9, 2016)

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