Few things confound the Supreme Court more than Indian law, but the Justices keep wading into a relatively steady stream of cases.

This Term is no exception. The Justices have already agreed to hear four cases directly involving Indian law issues, at least two of them highly important to the scope of tribal autonomy and the authority of Indian tribal courts.

The current Court’s interest in these cases is not necessarily good news for Native Americans. In the last twenty-nine years, since the start of the Rehnquist Court, the Supreme Court has decided some fifty-five cases in which either Indian tribes were parties or federal Indian law was at issue. The Justices ruled against the interests of Indians in seventy-two percent of those cases.

The development of Indian law in the Supreme Court has had a complex history, a patchwork of historical tribal sovereignty that predates the creation of the United States, federal protection for Indian tribes in a trust-like relationship, federal regulation mandated by the Constitution, principles of tribal self-governance, and tension over state efforts to regulate Indians.

Because of the uniqueness of Indian law and as a result of its patchwork nature, Justices have been known in private conversation to express frustration with the vagaries of Indian law cases. More than two decades ago, a Justice who was speaking in private to a group of scholars observed that when it came to Indian law, “we just make it up as we go.”

Although the trend of ruling against Indian interests has generally been a hallmark of more conservative majorities in the Rehnquist and Roberts Courts, the cases sometimes produce odd voting patterns, as with Michigan v. Bay Mills Indian Community in May 2014. The five-to-four majority extended the sovereign immunity of tribes from lawsuits to apply to commercial activities conducted on land outside Indian reservations. Chief Justice John Roberts joined Justice Elena Kagan’s majority opinion in the tribe’s favor, while Justice Ruth Bader Ginsburg joined Justice Clarence Thomas’s dissent against the tribe, which also attracted the support of Justices Antonin Scalia and Samuel Alito.

Thomas has gone the farthest on the current Court in questioning the scope of congressional authority to regulate Indian affairs and thereby protect Indian tribes. In June 2013 in Adoptive Couple v. Baby Girl, the Court ruled in a high-profile case from South Carolina that a non-Indian couple was not precluded by a federal law, the Indian Child Welfare Act, from adopting a baby girl who was Indian and whose Cherokee father was asserting the right to have custody. The five-to-four ruling, written by Justice Alito, sent the case back to the South Carolina state courts to apply state custody and adoption laws.

In a concurring opinion, Thomas fired a shot across the bow at Congress. Although the Court has spoken often of the “plenary power” of Congress to regulate and protect Indian tribes, Thomas wrote that “the Constitution does not grant Congress power to override state law whenever that law happens to be applied to Indians.” He argued that the custody dispute involved neither “Indian commerce” nor an Indian tribe and that Congress had no legal say in the dispute. He warned that too broad an assertion of plenary power “would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes involve Indians.” So far, this wholesale questioning of the power of Congress seems limited to Justice Thomas.

Should other Justices wish to question the scope of congressional authority, they may have that chance in the Court’s current Term.

The case with the most far-reaching potential is Dollar General Corporation v. Mississippi Band of Choctaw Indians. The issue is whether Indian tribal courts have jurisdiction to decide civil tort claims against individuals or companies that are not members of the tribe. The dispute involves a civil damages lawsuit by the family of an Indian boy who alleges that in 2003 he was sexually abused by the manager of a Dollar General store that operated on the Choctaw reservation in Mississippi. The lawsuit was filed in tribal court, but Dollar General sued separately in federal court to contest the jurisdiction of the tribal judges. Having lost in the courts below, Dollar General appealed to the Supreme Court, which heard arguments on December 7 and is expected to decide the case this spring. The case has important potential significance for the scope of authority for tribal courts and whether they can adjudicate civil suits that involve non-Indian parties.

Two other Indian law cases in the current Term may have less impact. In Menominee Indian Tribe of Wisconsin v. United States, argued on December 1, the issue is over the statute of limitations in a contract dispute with the federal government. Nebraska v. Parker, scheduled for oral argument on January 20, involves a dispute over lands on the Omaha Indian reservation in Nebraska.

The case of United States v. Bryant, which has not yet been scheduled for oral argument, also has potentially broad significance. The Court has agreed to review a ruling by the U.S. Court of Appeals for the Ninth Circuit that convictions in tribal court when the accused was not represented by counsel cannot constitutionally serve as prior convictions to trigger the tough repeat-offender federal crime provisions of the Violence Against Women Act (VAWA). The case involves a member of the Northern Cheyenne Tribe in Montana who over the course of several years had multiple convictions, each resulting in misdemeanor sentences of less than one year, in tribal court for assault on various girlfriends.

Under federal Indian law, indigent defendants in misdemeanor cases do not have a right to a paid appointed counsel, and the Sixth Amendment does not apply to tribal units of government. When Michael Bryant was indicted under the federal VAWA as a repeat offender, he pled guilty but challenged the government’s authority to use his tribal convictions as underlying offenses. The Ninth Circuit dismissed the indictment and threw out his guilty plea, ruling that the tribal convictions could not count for repeat-offender status because Bryant was not represented by counsel in those cases. Argument is likely to be scheduled in the spring.

Both the Bryant and Dollar General cases will afford the Court a chance to reflect on the status of tribal courts in ways that will likely have important ramifications for tribal self-governance.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in Dollar General Corporation v. Mississippi Band of Choctaw Indians, but the author of this post is not affiliated with the firm.]

Posted in Dollar General Corporation v. Mississippi Band of Choctaw Indians, Nebraska v. Parker, Menominee Indian Tribe of Wisconsin v. U.S., U.S. v. Bryant, Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Indian cases at the Court, SCOTUSblog (Jan. 4, 2016, 9:48 AM), http://www.scotusblog.com/2016/01/scotus-for-law-students-indian-cases-at-the-court/