Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
Dollar General Corporation v. Mississippi Band of Choctaw Indians
As a practical matter, this case means a great deal to Indian Country, both in terms of sovereignty and in terms of economic development. The modern era of tribal self-determination, running from the Nixon administration to the present, carries with it several imperatives that are implicated by this case. The first is the urgent need for tribes to continue the hard work of building and refining strong governmental institutions, including experienced tribal courts, which enable self-determination through the exercise of sovereignty. The Mississippi Choctaw has long been held as an exemplar in this process of nation building, with detailed legal codes, robust administrative departments, and experienced judicial officers in a multi-level court system. Indian Country is watching this case carefully, understanding that a ruling for Dollar General is a blow to the nation-building process and the institutional strength of tribal courts. On the other hand, the second imperative is the need for robust tribal economic development, which often requires sufficient outside capital and experienced business partners to create jobs and increase tribal government revenues for the general welfare. The business community has generally been wary of the variability in size and sophistication of tribal governments, the relative inexperience of tribal courts when compared to robust state judiciaries, and the need for a degree of certainty and predictability in forums for dispute resolution. In short, business interests may be more inclined to partner with tribes if Dollar General prevails in this case.
One area of constitutional law for which I have been interested to learn more about is Indian affairs and this (the excerpt is from the case preview; Thomas Goldstein of that blog argued for Dollar General) has been flagged as a potentially important case in that area. The specific claim here involves an alleged act of sexual abuse (involving a teenage boy), leading RH Reality Check to discuss the case as well. The renewal of the VAWA also dealt with special concerns of tribes (often in isolated locations so non-tribal authorities are distant checks). It is also been discussed as a matter of corporate power. Oral argumentcoverage.
A case to watch while re-districting and (tomorrow) affirmative action is on the table. There are a range of Native American tribes in this country, hundreds in fact, and it might be sensible to be somewhat concerned about an ability to properly handle civil and criminal prosecutions. The tribe here might be over ten thousand strong and well established, but a tribe might only have a few hundred people though small tribes often combine for purposes of courts. As discussed by some of the material linked, the Supreme Court has generally given tribes limited power as to criminal jurisdiction regarding non-members. OTOH, some power as to civil suits were assumed appropriate though here we are concerned with the breadth.
It seems like a simple matter of fairness that when a company voluntarily opens shop on tribal land, unless specifically rejecting liability from tribal courts, tribal sovereignty should cover this. Congress can regulate and if unfairness is shown, there should be a way to appeal to federal court. The discussion excerpted raises the practical issues at hand but particularly for sensitive topics like civil harms to their members, a means of local control means a lot. It is a tad racist to assume Native Americans specifically will not be able to fairly try non-tribal members. If the whole concept of Native American sovereignty seems problematic, fine, but that isn't this case. Taking the case suggests the result is up in the air.