Native women rally at Supreme Court for key tribal jurisdiction case

As part of the Quilt Walk for Justice, Native women rallied on the steps of the U.S. Supreme Court on December 7, 2015. Photo by Indianz.Com

Dozens of Native women and their supporters rallied at the U.S. Supreme Court on Monday as the justices took up their second Indian law case of the term.

Carrying signs and chanting slogans on a sunny winter morning, the message of the Quilt Walk for Justice was clear: "Shame on Dollar General." Participants took aim at a publicly-traded company with $17.5 billion in revenues for challenging the sovereignty of the Mississippi Band of Choctaw Indians.

"We need to be able to protect our women and our children," said Bonnie Juneau, a council member for the Tulalip Tribes of Washington as the rally moved to the lawn of the U.S. Capitol. "Justice should be applied no matter where you live."

Across the street, though, Dollar General was telling the high court that non-Indians cannot find justice in Indian Country. Attorney Thomas C. Goldstein said the company should be not forced to answer to a lawsuit that was filed in tribal court after the non-Indian manager of a store on the reservation was accused of sexually assaulting a minor tribal member.

Connie Black Bear-Brushbreaker, a member of the Rosebud Sioux Tribe of South Dakota, sings for Native women and justice at the U.S. Supreme Court on December 7, 2015. Also pictured is Chief Arvol Looking Horse. Photo by Indianz.Com

Goldstein acknowledged that the tribe's court system deserves "genuine respect" for being well-developed and fair. But he said Dollar General never agreed in writing to submit to tribal jurisdiction.

"Everyone agrees that the tribes have a form of adjudicatory authority upon consent," Goldstein asserted. "They don't have it inherently."

Neal Katyal, an attorney representing the tribe, challenged that assertion. By signing a lease with the tribe to operate a store on the reservation, Dollar General knew that it could be subjected to a lawsuit in tribal court, he argued.

"Nobody forced Dollar General to show up on the tribal lands," Katyal said. "Nobody forced Dollar General to sell to these customers."

After the rally at the U.S. Supreme Court, the Quilt Walk for Justice moved to the lawn of the U.S. Capitol. Native women added shawls and quilt squares to The Monument Quilt, public healing space for survivors of rape and abuse. Photo by Indianz.Com

The Obama administration is siding with the tribe. Edwin Kneedler, the deputy Solicitor General at the Department of Justice said Congress has repeatedly recognized that tribal courts are the proper place to resolve disputes, even those that arise among non-Indians.

"Tribal justice systems are an essential part of tribal government and serve important forums for ensuring public health and safety and political integrity of the tribe," Kneedler said as he cited the Indian Tribal Justice Act of 1993.

Some members of the court, though, appeared to be ready to embrace Dollar General's arguments. Justice Antonin Scalia, who almost always goes against tribal interests, agreed that tribal courts are "essential" -- but only for tribal members and not for non-Indians.

Chief Justice John Roberts also appeared skeptical. Like Scalia, he appeared to draw a distinction between the ability of a tribe to regulate the activity of non-Indians versus the ability of a tribal court to adjudicate a claim involving non-Indians.

Native Lives Matter, a quilt square for The Monument Quilt is seen on the lawn of the U.S. Capitol on December 7, 2015. Photo by Indianz.Com

"I think it's a little odd to say this is in the 'heartland' of Indian jurisdiction," Roberts said, using a word that Katyal brought up during the one-hour hearing.

The last tribal jurisdiction case that went before the Supreme Court was Plains Commerce Bank v. Long from 2008. By 5-4 vote, the justices held that a non-Indian bank did not have to answer to a lawsuit filed by two members of the Cheyenne River Sioux Tribe despite having entered into a consensual agreement with the couple

In that decision, the majority centered on the inability of a tribal court to adjudicate a claim involving non-Indians. The Dollar General case appears to match those circumstances and Native advocates are fearing the court will side with the company.

"I am praying to the Creator that they make the right decision," Melissa Pope, the chief judge for the Nottawaseppi Huron Band of the Potawatomi in Michigan, said at the U.S. Capitol.

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

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