Law | Opinion

Peter d'Errico: Tribal sovereignty attacked in Supreme Court

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

Retired professor Peter d'Errico reviews oral arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case that was heard by the U.S. Supreme Courton December 7:
One expects the opposing party to deny one's arguments. No surprise. The inauspicious note stems from the part of the Choctaw argument Dollar General didn't deny: namely, the notion that "the Tribes entered the United States and were incorporated into [the] country." Dollar General didn't deny that part of the Choctaw argument because it agrees with it.

Dollar General based its argument against Choctaw jurisdiction (over the tort case resulting from alleged sexual abuse of a minor Choctaw employee by the store manager) on the premise that Indian Nations were absorbed into the "national tradition of the United States and our Constitution."

By failing to challenge the notion of "incorporation"—worse, by adopting the concept of incorporation into their own argument—the Choctaw opened the door wide to Dollar General's attack.

Dollar General hammered on the argument that "the Tribes" were "incorporated into the United States" as inferior sovereigns. When Justice Ginsburg referred to language in prior U.S. Supreme Court decisions saying "tribal courts" have civil jurisdiction over non-Indians, Dollar General said that language in favor of Indians was "dictum"—i. e., not binding as precedent—and that other decisions against the "Tribes" are binding.

Get the Story:
Peter d'Errico: Dollar General: Finding Indian Sovereignty in Christian Discovery (Indian Country Today 12/18)

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

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