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Dollar General v. Choctaw: Cherry-picking Indian Sovereignty

Peter d'Errico
12/18/15

The oral argument in Dollar General v. Choctaw Indians opened on an inauspicious note. The lawyer for Dollar General summarized and challenged the Choctaw argument that "when the Tribes entered the United States and were incorporated into this country, [civil jurisdiction] was understood to be an element of their sovereignty." You can read the transcript and listen online.

The Dollar General lawyer denied the Choctaw position: "That is not correct." Moments later, responding to a question from Justice Ginsburg, the lawyer said, "Everyone agrees that the Tribes have a form of [civil jurisdiction] upon consent. They don't have it inherently."

One expects the opposing party to deny one's arguments. No surprise. The inauspicious note stems from the part of the Choctaw argument Dollar General didn't deny: namely, the notion that "the Tribes entered the United States and were incorporated into [the] country." Dollar General didn't deny that part of the Choctaw argument because it agrees with it.

Dollar General based its argument against Choctaw jurisdiction (over the tort case resulting from alleged sexual abuse of a minor Choctaw employee by the store manager) on the premise that Indian Nations were absorbed into the "national tradition of the United States and our Constitution."

By failing to challenge the notion of "incorporation"—worse, by adopting the concept of incorporation into their own argument—the Choctaw opened the door wide to Dollar General's attack.

Dollar General hammered on the argument that "the Tribes" were "incorporated into the United States" as inferior sovereigns. When Justice Ginsburg referred to language in prior U.S. Supreme Court decisions saying "tribal courts" have civil jurisdiction over non-Indians, Dollar General said that language in favor of Indians was "dictum"—i. e., not binding as precedent—and that other decisions against the "Tribes" are binding.

Dollar General summed up its response to Justice Ginsburg by saying, "Oliphant and other precedents of this Court say…the Tribes have the sovereign authority that is consistent with the overriding sovereignty of the United States." (Oliphant was the 1978 case that held Indian courts do not have inherent criminal jurisdiction over non-Indians and cannot have it unless authorized by Congress. The Oliphant decision was explicitly based on the early cases that built "Christian Discovery" doctrine into federal Indian law.)

The lawyer for the Choctaw ran into immediate opposition from the justices when he referred to Choctaw jurisdiction as being "in the heartland of the sovereign tribal jurisdiction that this Court has recognized for decades." The Chief Justice interrupted, "You say this is in the heartland? We have never before recognized Indian court jurisdiction over a nonmember, have we?"

The lawyer tussled with the question, referring back to Justice Ginsburg's quoting of prior cases, only to be interrupted by Justice Scalia, asserting, "That's dictum. Dictum is dictum. Dictum doesn't make something a heartland. …Cases make it. Judgments make it heartland." To which the lawyer replied, "Yes, I understand that they are dicta, but it is dicta of the most persuasive sort."

The lawyer for the Choctaw went one better, citing prior decisions in which the Supreme Court had insisted that non-Indians in civil cases had to go to Tribal court and "exhaust [their] remedies," which means they had to submit to Indian civil jurisdiction. Justice Scalia made no further comment.

Unfortunately, relying on prior decisions of the US Supreme Court in federal Indian law doesn't provide much comfort to Indians. Federal Indian law is a patchwork of contradictory decisions, in which Indian sovereignty appears and disappears in what I call "now you see it, now you don't."

The one consistent element of federal Indian law—"the overriding sovereignty of the United States"—rests on the doctrine of Christian Discovery. When you discover this, you understand how thin a foundation federal Indian law provides for Indian jurisdiction. You also understand where the main thrust of a pro-Indian argument needs to be.

Justice Breyer provided several comments and questions during the oral argument that were supportive of the Choctaw position that Dollar General "consented" to Choctaw civil jurisdiction. Yet even he could not recall the foundation of federal Indian law. Here's an exchange:

"JUSTICE BREYER: Now, is there any—and—and what is the word in Cherokee? I forget. It's 'something dependent nation.' What kind of—it was—there are two words—

"MR. KATYAL: Domestic dependent—

"JUSTICE BREYER: What?

"MR. KATYAL: Domestic dependent nation?

"JUSTICE BREYER: Domestic? All right.

Justice Breyer continued, "So if, in fact, Tasmania had this kind of official situation, and an American went to Tasmania and got a reasonable judgment, I take it our courts would enforce that." To which the lawyer replied, "Correct."

But the point is precisely that U.S. law does not acknowledge Indian sovereignty as equal to Tasmanian sovereignty. The doctrine of Christian Discovery and all its progeny—"trust" doctrine," Indian "wardship," Congressional "plenary power"—aim at putting Indian Nations in a distinctly different—and inferior—position to both Tasmania and the United States. (This is not the place to go into the British genocide of the Aboriginal People of Tasmania, who suffered their own version of "Christian Discovery.")

Dollar General and the Choctaw—and members of the court—viewed Indian Nations as "non-Constitutional," meaning Indian Nations pre-existed the constitution of the United States. Nevertheless, both parties—and the justices—relied on the US Constitution for their arguments and comments about the limits of Indian jurisdiction.

Dollar General insisted the U.S. constitution prohibits the court from ruling that non-Indians are subject to Indian courts, except by consent. The Choctaw insisted that the court and US Congress have already subjected non-Indians to Indian courts.

Dollar General argued that subjecting non-Indians to Indian jurisdiction without their consent would violate "due process," that there is one "Supreme Court" and the US Constitution is "the supreme law of the land." The Choctaw argued that, if a due process problem arises, Congress could solve it: "Congress has brought the Due Process Clause to tribes in the form of ICRA [Indian Civil Rights Act]. …They could go further…. They have plenary jurisdiction…."

Notice the crosscurrents and under-currents: Everyone agreed Indian Nations pre-exist the US constitution—they are not dependent on the constitution for their existence. Yet the arguments insisted the US Constitution—and Congress—can limit Indian courts.

The constitutional arguments on both sides presumed the inherent superiority of the US and its constitution over the inferiority of Indian Nations, despite the fact Indian nations predate the US and its documents.

Justice Sotomayor concluded the oral argument with a question to Dollar General's lawyer: "What then remains of the sovereignty of the Indians? …You just want to cherry pick what 'sovereignty' means. Because if they're sovereign, the United States can have treaties with people that basically say in your land, you do what you want; I'm not going to enforce your judgment if I don't think it's consistent with due process here. But we don't dictate to other sovereigns what kind of systems they should have. You're right we have the power to do that, but it's still something that we don't have to exercise."

If she had stopped before her last sentence, Justice Sotomayor would have pulled the props out from under Christian Discovery. But she went on, and reaffirmed that doctrine, saying only, "we don't have to exercise" it.

Dollar General didn't miss a beat, responding to her, "I will be brief. The difference is the dependent sovereignty of the Indian tribes and the fact that individuals have the protections of the Constitution." In a nutshell: Christian Discovery makes the US superior and gives the US power to subordinate Indian law to US law.

The oral argument ended as inauspiciously as it opened, cherry-picking Indian sovereignty and presuming the validity of Christian Discovery doctrine.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.

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alexjacobs's picture
Where are all the Indian Warrior Lawyers that I've been hearing about since my college days, 40 years ago? Sounds weak and timid and acquiescing not strong, willful and bold. Having to bend to the bloody old white men again?
alexjacobs