The Most Difficult Case for the Supreme Court to Write This Term May Not Be What You Think

Dollar General

We all know the big cases that are remaining this Supreme Court term: immigration, abortion, affirmative action and McDonnell.

The case almost no one is tweeting about is Dollar Gen. Corp. v. Miss. Band of Choctaw Indians. Oral arguments were held December 7 and at least two people Are. Still. Waiting.

Why has it taken the Court almost seven months to issue an opinion?

“Dollar General is itself an incredibly sensitive case—politically and legally,” Amy Kullenberg, an attorney who specializes in Indian law, told Bloomberg BNA.

The case centers around the alleged sexual abuse of an American Indian boy by a non-tribal member operating a store on tribal lands.

After the tribe sued the man and the store in tribal court, the defendants filed an action in federal district court, attempting to enjoin the boy’s suit from proceeding in tribal court.

They argued that the tribal court lacked jurisdiction over them.

The U.S. Court of Appeals for the Fifth Circuit found for the tribe.

The question presented to the Supreme Court is: Do Indian tribal courts have jurisdiction to hear civil tort claims against non-tribal members, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe?

It might be one of the most difficult cases for the Court this year, and it probably won’t be unanimous because of this, Kullenberg said.

This is for two main reasons: precedent and policy argument wrangling, she said.

There is “a long line of Federal Indian Law precedent” in Montana v. United States to consider, Kullenberg said. 

“[T]here is bound to have been considerable wrangling in chambers” due to the “pull” from competing interests, she said. There’s “business and industry lobbying heavily on one side, and Indian Law aficionados lobbying on the other.”

“I think the Court would like to reach a consensus on Dollar General, but that will probably require a lot of time,” Kullenberg said.

Whatever the ultimate reasons may be, the delay has made for a more interesting and suspenseful end-of-term countdown!

Well, at least for a couple of people.

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