Supreme Court still holding onto ruling in tribal jurisdiction case

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

The U.S. Supreme Court met again on Thursday but did not issue a decision in a closely watched tribal jurisdiction case.

The outcome in Dollar General Corporation v. Mississippi Band of Choctaw Indians will determine whether the Mississippi Band of Choctaw Indians can exercise authority over Dollar General, a publicly-traded company that reported $18.9 billion in net sales in 2014. Historically, the Supreme Court has not been receptive to tribal jurisdiction over non-Indian entities.

But with the court down to just eight members following the death of Antonin Scalia, the remaining justices appear to be unable to come to a clear consensus. The impasse could result in a 4-4 tie, a move that would affirm the Mississippi Band's authority but which would not otherwise benefit Indian Country as a whole.

The court's last tribal jurisdiction case was Plains Commerce Bank v. Long. By a 5-4 vote, the justices held that the Cheyenne River Sioux Tribe lacked jurisdiction over a non-Indian bank.

Observers felt the court was leaning in the same direction for Dollar General. "It wasn't looking good," John Dossett, the general counsel for the National Congress of American Indians, told tribal leaders in February.

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

Apart from Scalia, the majority in Plains Commerce included four members who are still on the court. It would be highly unlikely that Chief Justice John G. Roberts, Justice Anthony M. Kennedy, Justice Clarence Thomas or Justice Samuel Alito have changed their minds about tribal jurisdiction since that 2008 decision.

Of the minority in Plains Commerce, only Justice Ruth Bader Ginsburg and Justice Stephen G. Breyer remain on the court. They have been joined by Justice Sonia Sotomayor, who has emerged as Indian Country's most visible ally and Justice Elena Kagan, who is the most junior member but also has become a reliable voice for tribal interests.

If the views in Dollar General fall along those lines and no one is willing to switch votes, the tie could end up affirming the 5th Circuit Court of Appeals, which held that the Mississippi Band could hear a lawsuit that accuses Dollar General of negligence, among other claims. The dispute arose after a minor, a 13-year-old tribal member, alleged sexual abuse by a non-Indian employee of the company's store on the reservation.

That outcome would not set not set a national precedent but it could benefit tribes in 5th Circuit, a judicial district that includes Mississippi, Louisiana and Texas.

It's been 192 days since oral arguments on December 7, 2015, and the case is the oldest on the docket without a decision. The justices still have two more weeks in their current term so a decision will come before June 30.

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)

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