SCOTUS Takes Tribal Sovereignty To Heart

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By Melissa Stanzione

Dec. 7 — The U.S. Supreme Court justices served up several hypotheticals today, ranging from New York Yankees fans in a Massachusetts state court to non-Indians gambling, as they heard arguments in a case with facts “in the heartland of the tribal jurisdiction that this Court has recognized for decades”.

“I think it's a little odd to say this is in the heartland of Indian jurisdiction” Chief Justice John G. Roberts Jr. said in response to Neal Kumar Katyal's description of the case in his opening sentence.

Katyal, of Hogan Lovells US LLP, Washington, represented the respondents in this case, the Mississippi Band of Choctaw Indians, their tribal court, and a minor and his parents.

The case involves the alleged sexual abuse of an American Indian boy by a non-tribal member, Dale Townsend, who operated a Dollar General store on tribal land and who supervised the boy for an internship at the store (82 U.S.L.W. 577, 10/22/13).

The boy sued Dollar General, Dolgencorp and Townsend in tribal court. After an unsuccessful interlocutory appeal in the Choctaw Supreme Court, Dolgencorp and Townsend 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.

Dictum Is Dictum

The Chief Justice demanded to know of a case “where a nonmember has been held liable in tort in an Indian court.”

Katyal referred to the high court's language that “tribal authority of the activities of non-Indians on reservation lands is an important part of tribal authority” in Strate v. A-1 Contractors, 520 U.S. 438 (U.S. 1997).

“That's dictum. Dictum is Dictum. Dictum doesn't make something a heartland,” said Justice Antonin Scalia.

This is “dicta of the most persuasive sort,” Katyal answered.

“I don't know what authority Congress has to subject citizens of the United States to that nonconstitutional forum,” Justice Anthony M. Kennedy said.

“Yes, these are constitutional concerns,” Katyal said, but when someone has consented, “then that takes it out of that circumstance.”

Alito's Hypothetical

“I'm trying to understand the limits of your argument,” Justice Samuel A. Alito Jr. said to Katyal. What if someone went to an Indian casino, lost a lot of money, then posted online that they were cheated and the game was rigged.

“Could the tribe sue that person for defamation in tribal court?” he asked.

Katyal didn't think so as “it's got to be something that's reasonably anticipated.”

Katyal argued that Dollar General's words and actions implied consent for tribal jurisdiction under Montana v. United States, 450 U.S. 544 (U.S. 1981).

Due Process Violation?

“Does it violate due process for a non-member to be subjected to a jury trial with the jury composed solely of members of the tribe?” Roberts asked Katyal.

“It arguably could violate the due process clauses incorporated” into the Indian Civil Rights Act, Katyal responded.

Congress “could ban those juries. They have plenary jurisdiction in this area. That's why the ball is in Congress's court, Congress's shoes. It's not in this court's,” Katyal said.

Yankees Fan

Justice Stephen G. Breyer followed up with another hypothetical.

“Is that right?” he asked. What if there's $50,000 at stake in a case and a New Yorker wants to sue a Massachusetts citizen?” Breyer asked.

The New Yorker has to go before a jury to obtain the $50,000 in a Massachusetts court. “And suppose the plaintiff is a Yankee fan?” He asked to laughter.

Breyer was presumably referring to the rivalry between the states' baseball teams and the bias a New Yorker might encounter in such a situation.

‘Bottom Line.'

“Mr. Katyal, so why would these plaintiffs want to bring the case in tribal court where they can get, in your argument, they can get Dollar General but they can't get Townsend? If they sued in state court, they could sue both defendants,” Justice Ruth Bader Ginsburg asked.

The “bottom line” is what this court said in Williams v. Lee, about the right of the people to govern themselves. Constitutional concerns apply to “some wandering entity” but not to someone who consents, Katyal said.

Black Letter Law

Thomas C. Goldstein of Goldstein & Russell, P.C. Bethesda, MD, argued for the petitioners, Dollar General Corp. and Dolgencorp, LLC.

American Indian tribes have the power to regulate conduct but don't have judicial authority over such conduct, Goldstein argued.

“Is it black letter law given the tribes have complete legislative authority over non-tribe members for regulatory purposes?” asked Kennedy.

Not in a tort context, Goldstein replied.

“If what you're arguing now is correct, Strate would have been a one-line decision: No tort jurisdiction over a non-Indian,” Ginsburg said.

Goldstein replied that the high court granted review “we assume,” to decide whether tribes have judicial authority where they already have legislative jurisdiction.

What's Wrong With Tribal Courts?

Goldstein explained that there isn't jurisdiction in this case because of the availability—or lack of—“a neutral forum as anticipated by the Constitution.”

“What's wrong with the tribal courts?” Breyer asked.

It depends, Goldstein said, explaining that some don't have “the availability of a neutral forum,” which raises due process issues.

Here, Goldstein said, we have “a due process claim against the punitive damage award in—that's asked for in this case, and that would be entirely unreviewable in this case.”

It's also possible to collaterally attack the judgment but “[t]hat is hardly treating the tribal courts as sovereigns,” Goldstein said.

No Constitutional Guarantees

“What civil claims can be brought against nonmembers in tribal court?” Ginsburg asked.

Claims that are subject to the contracts that allowed the nonmembers onto the reservation, Goldstein said.

When a tribe “in the exercise of its sovereign authority, brings the action, so long as its consistent with principles of due process,” he said.

“This is not a sovereign action. This is a private suit between two individuals,” Goldstein said.

“So if the tribe brought this suit, instead of the parents of the boy who was molested, then it would be ok?” Ginsburg asked.

We think it's an impossibility, Goldstein said. If a tribe tried to enforce licensing or taxation regulations in a tribal court, “that would be a sovereign action and it would be susceptible of the Montana exception.”

The exception says that “a tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members.” It says a tribe may also exercise civil authority over the conduct of non-Indians on the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

“It's a bit of an odd argument, isn't it, Mr. Goldstein, that there's less of a sovereign interest in protecting your own citizens than in enforcing your licensing laws?” Justice Elena Kagan asked.

Edwin S. Kneedler, Deputy Solicitor General of the Department of Justice, argued as amicus curiae in support of the respondents.

To contact the reporter on this story: Melissa Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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