Law | Opinion

Matthew Fletcher: Supreme Court takes up tribal jurisdiction case

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

Professor Matthew Fletcher of Turtle Talk discusses oral arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case that was heard by the U.S. Supreme Court on December 7:
If the Justices collectively had more judicial discipline, this would be one of their easiest cases, and likely would not be a candidate for certiorari review at all. But the oral argument, coupled with previous positions taken by certain Justices, suggests that there is a judicial discipline problem in federal Indian law.

First. Why this case is easy should have been adamantly clear when counsel for the tribe read the language of the business license in which Dollar General consented to the application of all manner of tribal laws, and agreed to abide by those laws. It doesn’t clear any clearer or express. Nor should it have to.

Second. Why there is a judicial discipline problem is evident where Justice Kennedy insisted from the outset that tribal sovereignty and Congression authority in relation to tribal sovereignty was in the table Monday, an issue not before the Court if the statement of questions presented is to be believed. Moreover, that Justices Scalia, Kennedy, and Thomas (who as usual did not speak but has written as such) suggested that the Supreme Court is in a position to second-guess or undo inherent tribal sovereign authority where Congress and the Executive branch have made considered judgments that tribes do have civil jurisdiction power on their own land is another expression of a lack of judicial discipline — the Supreme Court is not allowed to undo policy judgments expressed by the other branches because it disagrees with them. Finally, that Justices Kennedy, Scalia, Thomas (likely, as noted above), and possibly Alito were to disregard or significantly modify the Montana 1 analysis in the manner offered by counsel for Dollar General, it would mean that the Court’s statements favoring and assuming tribal jurisdiction in Mazurie, Colville, Montana itself, Merrion, Mescalero, National Farmers, Iowa Mutual, Strate, and Plains Commerce are to be ignored because those three or four Justices don’t agree with them now.

Get the Story:
Matthew L.M. Fletcher: Reflections on the Dollar General Argument (Turtle Talk 12/8)

More Opinions:
Stephen Pevar: Native Americans' sovereignty is at risk, and the high court must help save it (The Guardian 12/7)
Noah Feldman: Dollar General Tries to Shake Up Tribal Law (BloombergView 12/7)
Garrett Epps: Who Can Tribal Courts Try? (The Atlantic 12/7)

Also Today:
Supreme Court seems to favor limits on tribal court lawsuits (AP 12/7)
U.S. justices hostile to tribal court authority in molestation case (Reuters 12/7)
Dollar General Takes Its Case Against Indigenous Sovereignty to the Supreme Court (The Nation 12/7)
The US Supreme Court Hears Arguments in Dollar General Case (Indian Country Today 12/7)
Justices Ponder Tribal Jurisdiction Over Dollar General (Bloomberg BNA 12/7)
Dollar General seeks tribal suit ban in Miss. Choctaw case (The Times Oracle 12/7)
Why protesters at the Supreme Court today want you to boycott Dollar General (Upworthy 12/7)
Tribal Jurisdiction Case Put to the Supremes (Courthouse News Service 12/7)
Cherokee Nation supports Mississippi Band of Choctaw Indians in SCOTUS case (The Muskogee Phoenix 12/7)
The Supreme Court Could Further Strip Native Communities Of Their Once-Promised Powers (ThinkProgress 12/7)
Supreme Court Considers Limits To Indian Tribal Sovereignty In Dollar General Case (Forbes 12/7)
Justices Weigh Power of Indian Tribal Courts in Civil Suits (The New York Times 12/8)

Relevant Documents:
Transcript: Dollar General v. Mississippi Band of Choctaw Indians (December 7, 2015)

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