With the U.S. Supreme Court in the background, Phyliss J. Anderson, the chief of the Mississippi Band of Choctaw Indians, speaks at a rally on the lawn of the U.S. Capitol on December 7, 2015. Photo by MBCI

Law | National

Tribes rest easy as Supreme Court wraps up a surprising session

Friday, June 24, 2016

Tribes across the nation are breathing a sigh of relief and even expressing optimism after a surprisingly strong season at the U.S. Supreme Court.

The justices closed the books on the last Indian law case of the term on Thursday, deadlocking in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction dispute. Even though they were unable to come to a majority, their inaction actually benefited the Mississippi Band of Choctaw Indians because it affirmed a victory the tribe secured at a lower court.

As a result, Dollar General, a publicly-traded company that reported $18.9 billion in net sales in 2014, must answer to a lawsuit that was filed in the tribe's court system more than a decade ago. The dispute arose after a minor tribal member alleged abuse by the non-Indian manager of a store on the reservation.

"This is a positive outcome, not only for our tribe, but for all of Indian Country," Chief Phyliss Anderson said in a press release on Thursday.

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.

The National Indigenous Women’s Resource Center, whose members staged a large rally as the court heard arguments last December, agreed. The group has long called attention to the high rates of violence in Indian Country, noting that most of the crimes are committed by non-Indians.

"In this instance, a tribal youth suffered at the hands of a Dollar General store manager, and as a result of today’s decision, he doesn’t have to leave his home to seek justice, but can instead continue with his lawsuit in the court of his nation," Lucy Simpson, the group's executive director, said in a press release.

John EchoHawk, the executive director of the Native American Rights Fund, acknowledged the outcome was "anti-climactic" but said it was significant nonetheless. The 4-4 tie reaffirms the 5th Circuit Court of Appeals, which held that Dollar General falls under tribal jurisdiction because it entered into a "consensual relationship" to operate the store where the alleged abuse occurred.

"Although this result does not create a national precedent, it avoids another stinging loss from a Supreme Court which refuses to recognize the lawful governing authority of Indian tribes over all persons who come on to Indian lands, especially those like Dollar General who enter into and profit from business dealings with tribes and their members on their reservations," EchoHawk said in a statement. NIWRC and NARF were among the many tribal interests that submitted briefs in the case.

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

The 5th Circuit includes Louisiana, Mississippi and Texas so the ruling that the Supreme Court affirmed could in fact benefit tribes in those states. It could even influence other appellate courts to take a more favorable view of tribal jurisdiction, argued Brian Patterson, the president of the United South and Eastern Tribes.

"Ultimately, tribal nations must have the ability to serve and protect their citizens," said Patterson, whose organization signed onto NARF's brief in the case. "The answer is simple: if you are on tribal land, you are subject to a tribal nation’s civil jurisdiction and can be sued in tribal court.”

Brendan Johnson, a former U.S. Attorney from South Dakota who now represents tribes in private practice, also was hopeful for change. He said the Supreme Court's decision in Dollar General and in US v. Bryant, a domestic violence case that recognized the use of tribal convictions in the federal system, represent a nationwide shift.

"After decades of decisions that chiseled away tribal jurisdiction, we are now witnessing Supreme Court decisions that recognize the validity of tribal courts," said Johnson, who serves as co-chair of the Indian law and policy practice at the Robins Kaplan firm.

Native women rallied on the steps of the U.S. Supreme Court on December 7, 2015, as the justices heard arguments in Dollar General v. Mississippi Band of Choctaw Indians. Photo by Indianz.Com

Despite the favorable outcomes, tribes continue to face challenges to their sovereignty. When Congress debated the reauthorization of the Violence Against Women Act in 2013, opposition from conservative lawmakers nearly prevented the inclusion of provisions that recognize the "inherent" authority of tribes to arrest, prosecute and sentence non-Indians who abuse their domestic partners.

“The fact that this decision ended in a tie is important,” Robert T. Coulter, the executive director of the Indian Law Resource Center, said in press release. “It is a reminder that more work is needed to educate lawyers, judges, and lawmakers about tribal sovereignty and the authority of tribal courts.”

And Brian Cladoosby, the president of the National Congress of American Indians, used the decision to call for greater recognition of tribal authority over non-Indians. He said the dispute might not have arisen had the Mississippi Band been able to pursue criminal charges for the alleged abuse.

"For victims on tribal lands to truly have access to justice, Congress must take action to untie the hands of tribal courts and allow them to prosecute offenders who commit crimes against our children regardless of their race," Cladoosby said in a press release.

The last tribal jurisdiction case that went before the Supreme Court resulted in a 5-4 loss for the Cheyenne River Sioux Tribe of South Dakota. The tribe had secured a victory at the 8th Circuit Court of Appeals only to see it overturned by the justices in that close vote back in June 2008

Even before that, the Supreme Court imposed a harsh standard on Indian Country in a case known as Montana v. United States. By a 6-3 vote, the justices held that tribes, generally, lack jurisdiction over non-Indians because they "lost" that right by virtue of their status as "dependent" nations within the U.S.

At the same time, the court identified two potential exceptions. Non-Indians that enter into a "consensual relationship" with a tribe or engage in activity that threatens the "political integrity, the economic security, or the health or welfare" of a tribe might have to answer to tribal jurisdiction, then-Justice Potter Stewart wrote in the March 24, 1981 decision.

In the Mississippi Band's case, the consensual relationship convinced the 5th Circuit and, before that, a federal judge, to subject Dollar General to the tribe's jurisdiction. But four of the Supreme Court justices were apparently unwilling to accept that outcome, as evidenced by the tie.

The one-sentence decision -- labeled as "per curiam" -- was announced by Chief Justice John G. Roberts near the end of a 40-minute session on Thursday that saw two cases result in 4-4 ties. But the court did not say which members fell on which side of the vote in either Dollar General or Fisher v. University of Texas at Austin, a closely-watched affirmative action dispute.

Justice Roberts, Justice Anthony M. Kennedy, Justice Clarence Thomas and Justice Samuel Alito were part of the five-member majority that ruled against tribal jurisdiction in Plains Commerce and it's unlikely they have changed their views since then. Had Justice Antonin Scalia not passed away in February, it's likely that Dollar General would have gone another way.

That leaves Justice Ruth Bader Ginsburg and Justice Stephen G. Breyer, Justice Sonia Sotomayor and Justice Elena Kagan on the other side. They apparently were ready to accept the 5th Circuit's decision or weren't convinced to change their votes to help the court reach a majority.

That lack of consensus stands in contrast to the other three Indian law cases that were on the docket for the court's October 2015 term. US v. Bryant, Nebraska v. Parker and Menominee Indian Tribe of Wisconsin v. US were all decided by unanimous votes.

In Bryant, the court upheld the use of tribal convictions against people who repeatedly abuse their partners in Indian Country. The Nebraska case brought victory to the Omaha Tribe over claims that its reservation had been diminished by Congress.

And while the justices limited the years for which the Menominee Nation could pursue contract support costs claims against the Indian Health Service, the decision did not affect the tribe's claims for other years. It did not disturb precedents set by the Supreme Court in two earlier self-determination cases either.

"This has been a very successful term for tribal sovereignty in the Supreme Court," said Johnson, the former U.S. Attorney, "But Dollar General also underscores the critical importance to Indian country of ensuring that the next Supreme Court Justice understands and respects tribal sovereignty. The appointment of the next Justice will determine whether we are welcoming a new era of Indian Country jurisprudence, or merely observing a temporary mirage."

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)