Argument analysis: Is tribal court civil jurisdiction over non-Indians truly a constitutional issue, or one of settled precedent?

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By Ed Gehres on Dec 8, 2015 at 10:22 pm

(reprinted with permission from Lyle Denniston Law News)

 

The argument in Dollar General v. Mississippi Band of Choctaw Indians yesterday continued what may be a watershed year for Native American interests at the Court. In the last eleven years, the Roberts Court has heard just over ten cases directly regarding Indian Country. This case marks the second of at least three to be argued this Term. The argument featured three advocates well known to the Court – Thomas Goldstein on behalf of Dollar General, Neal Katyal on behalf of the Mississippi Band of Choctaw Indians, and Deputy Solicitor General Edwin Kneedler, a regular for Indian law cases, on behalf of the federal government. All but one of the Justices asked questions. The questions of Justices Anthony Kennedy, Antonin Scalia, Samuel Alito, and, to a lesser extent, Chief Justice John Roberts reflected skepticism of both the abilities of tribal courts and the constitutionality of allowing non-Indians to be subjected to civil jurisdiction for torts in tribal courts. Conversely, the questions of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan suggested varying degrees of confidence in tribal courts and support for the argument that tribal courts are endowed with at least a degree of clear civil jurisdiction over non-Indians.

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SCOTUS ties 4-4 in fight over jurisdiction of tribal courts (opinion here).