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

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Supreme Court deadlocks in closely-watched tribal jurisdiction case

Thursday, June 23, 2016

The U.S. Supreme Court on Thursday failed to come to a majority in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction case.

By a 4-4 vote, the justices upheld a 5th Circuit Court of Appeals decision that sided with the Mississippi Band of Choctaw Indians. The tie means Dollar General, a publicly-traded company that reported $18.9 billion in net sales in 2014, must answer to a lawsuit filed in the tribe's court.

"The judgment is affirmed by an equally divided Court," the anti-climactic ruling stated.

The deadlock does not set a precedent so it doesn't benefit Indian Country as a whole. But it allows the family of a minor tribal member who alleged abuse at a Dollar General store on the reservation to continue to seek justice in the Choctaw court system.

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

On a larger scale, though, the tie represents the best possible outcome in a case that had tribal advocates everywhere worried. The Supreme Court decided its last tribal jurisdiction case by a 5-4 vote and it looked like Dollar General was headed in that same direction.

"It was pretty clear at the argument that the typical conservatives -- the five conservatives -- were not very happy about this case and the four judges who are less conservative seemed to be on our side," John Dossett, the general counsel for the National Congress of American Indians, said in February. "But it wasn't looking good."

Those five conservatives included Justice Antonin Scalia. Had he not passed away in February, he likely would have sided with Dollar General in holding that the company was not subject to tribal jurisdiction.

But the remaining members seemed hopelessly deadlocked without his vote. As the clock ticked on the case -- it was the oldest on the docket without a decision -- they were unable to reach a clear consensus.

The U.S. Supreme Court on June 23, 2016, issued a one-sentence decision in Dollar General v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction case.

"I suspect that they were trying to put together some sort of majority until the last minute, and then just gave up," Amy Howe, the editor of the influential SCOTUSBlog, wrote on Thursday morning.

The owner of SCOTUSBlog is attorney Thomas Goldstein, who represented Dollar General at the Supreme Court. Howe worked at the Goldstein & Russell firm before becoming editor of the site full-time.

The four conservative-leaning members of the court are Chief Justice John G. Roberts, Justice Anthony M. Kennedy, Justice Clarence Thomas and Justice Samuel Alito. They were part of the majority in Plains Commerce Bank v. Long, which determined that the Cheyenne River Sioux Tribe lacked jurisdiction over a non-Indian bank.

It would be highly unlikely for any of those four to have changed their minds about tribal jurisdiction since that 2008 decision. That left them in conflict with the four more liberal members of the court -- Justice Ruth Bader Ginsburg and Justice Stephen G. Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan.

Sotomayor has emerged as Indian Country's most visible ally and Kagan, who is the most junior member of the court, has become a reliable voice for tribal interests. But the Supreme Court did not explain the tie so it's impossible at this point to know where the justices stood on Dollar General.

"Perhaps the Chief Justice assigned himself the majority after oral argument (he did write Plains Commerce and so has a track record), and struggled mightily to hold a majority for the past several months," law professor Matthew Fletcher, who called the tie a "huge win" for the Mississippi Band, wrote on Turtle Talk on Thursday.

It took the justices 199 days to resolve the case and Native women were among those paying close attention. They turned out in force on the day of oral arguments on December 7, 2015, to stand up for tribal sovereignty.

"We need to be able to protect our women and our children," Bonnie Juneau, a council member for the Tulalip Tribes of Washington, said at the time. "Justice should be applied no matter where you live."

U.S. Supreme Court Decision:
Dollar General v. Mississippi Band of Choctaw Indians (June 23, 2016)

U.S. Supreme Court Documents:
Docket Sheet No. 13-1496 | Questions Presented | Oral Argument Transcript: Dollar General v. Mississippi Band of Choctaw Indians

5th Circuit Court of Appeals Decision:
Dollar General Corporation v. Mississippi Band of Choctaw Indians (March 14, 2014)
Dollar General Corporation v. Mississippi Band of Choctaw Indians (March 14, 2014)