Long wait continues for decision in tribal court jurisdiction dispute

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

Indian Country's long wait for a decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction dispute, continues as the U.S. Supreme Court nears the end of its current term.

The justices issued another round of decisions on Monday -- including one in an Indian Country domestic violence case -- but Dollar General remains under wraps. It's been 189 days since oral arguments on December 7, 2015, and the court appears unable to resolve a dispute that will determine whether the Mississippi Band of Choctaw Indians can exercise authority over Dollar General, a non-Indian company that reported $18.9 billion in net sales in 2014.

The case in fact is the oldest on the docket without a decision. Speculation about the delay centers on the absence of Justice Antonin Scalia, who died in February before the court could issue a ruling.

"I suspect it had something to do with Justice Scalia's death -- he may have been writing" the decision, Amy Howe, the editor of the influential SCOTUSBlog, wrote on Monday morning. The owner of the website, Thomas Goldstein, is representing Dollar General but Howe no longer works at the Goldstein & Russell firm.

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

If Scalia were indeed in charge of the decision, the outcome likely would have gone against Indian Country. The last tribal jurisdiction case that came before the court was Plains Commerce Bank v. Long and he joined the majority in holding that the Cheyenne River Sioux Tribe lacked jurisdiction over a non-Indian bank.

The vote was 5-4 and, besides Scalia, four members of that majority are still sitting on the court. It appears unlikely that those any of those members -- a group that includes Chief Justice John G. Roberts -- have changed their minds about tribal sovereignty since that 2008 decision.

The Supreme Court is expected to issue more opinions on Thursday so it's possible that Dollar General will come this week. Or the justices could potentially wait until the end of their term on June 30 to take action.

If the justices are unable to reach a clear majority, a 4-4 decision would result in a victory for the Mississippi Band because the tribe won the case at the 5th Circuit Court of Appeals.

But a tie would not set a national precedent so Indian Country as a whole would not necessarily benefit from an impasse. However, tribes in the 5th Circuit, which includes Louisiana and Texas, could benefit.

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