Argument analysis: Is tribal court civil jurisdiction over non-Indians truly a constitutional issue, or one of settled precedent?

The argument in Dollar General v. Mississippi Band of Choctaw Indians yesterday continued what may be a watershed year for Native American interests at the Court. In the last eleven years, the Roberts Court has heard just over ten cases directly regarding Indian Country. This case marks the second of at least three to be argued this Term. The argument featured three advocates well known to the Court – Thomas Goldstein on behalf of Dollar General, Neal Katyal on behalf of the Mississippi Band of Choctaw Indians, and Deputy Solicitor General Edwin Kneedler, a regular for Indian law cases, on behalf of the federal government. All but one of the Justices asked questions. The questions of Justices Anthony Kennedy, Antonin Scalia, Samuel Alito, and, to a lesser extent, Chief Justice John Roberts reflected skepticism of both the abilities of tribal courts and the constitutionality of allowing non-Indians to be subjected to civil jurisdiction for torts in tribal courts. Conversely, the questions of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan suggested varying degrees of confidence in tribal courts and support for the argument that tribal courts are endowed with at least a degree of clear civil jurisdiction over non-Indians.

Surprisingly, after developing an aggressive petition for certiorari and even more aggressive merits briefs, arguing for a broad rule limiting tribal jurisdiction over non-Indians, Dollar General’s counsel began his presentation with his most narrow argument, until Kennedy returned his focus to the most strident point. Goldstein began the argument noting that even if tribal governments had clear but limited legislative authority, as described in Montana v. United States, this jurisdiction was not co-extensive with a matching adjudicative jurisdiction, at least not in this particular case. Ginsburg lobbed the first question, noting that she was not aware of other contexts in which regulatory, but not adjudicatory, authority would exist. Goldstein’s answer focused on how the Article III courts provide citizens with more, and frankly required, due process than tribal courts with the option of removal or seeking ultimate review to the Supreme Court. This answer was soon lost, however, as just a moment later, Kennedy startled many observers by openly urging Goldstein towards its broader constitutional arguments with a puzzling inquiry of why he started with a more narrow point when Dollar General’s primary arguments have been sweeping all along.

Goldstein then jumped into the broader argument that the Court ought to abolish civil tort jurisdiction over non-Indians, as it did for criminal matters in Oliphant v. Suquamish Indian Tribe, presenting a thorough framework of both history and constitutional concerns that urged the Court towards a broad rule.   Goldstein’s main constitutional points were best described as a “constitutional avoidance argument,” that tribal courts lack of procedural due process protections – such as Supreme Court review of punitive damages claims; and an “Article III question” regarding the guaranty of an Article III court as the ultimate assurance for the resolution of citizen grievances. Goldstein did not elaborate on how due process wasn’t satisfied by the review necessary for the tribe to execute its “foreign” tribal court judgment in a state or federal court, pivoting instead to Dollar General’s historical arguments about how the United States has micromanaged tribal courts at significant points in history, showing a lack of confidence and intent regarding the existence of civil jurisdiction.

Neither the advocates or the Justices took the time to address an important aspect of the historical arguments made in this case: what weight should be accorded to discerned intent of federal Indian policies rooted in eras vastly different than today’s federal government support for tribal self-determination.  The Court heard at least some historical arguments from all of the advocates.  Yet none of the advocates provided context for why their view of history was more compelling, and none of the Justices took the questions of weight and context head on.

For the tribe, Neal Katyal did in the first instance what Kennedy had to urge Goldstein to do: put the broadest argument out on the table right away. “The facts of this tragic case place it squarely in the heartland of the sovereign tribal jurisdiction that this Court has recognized for decades.” Roberts was immediately skeptical that the Court had ever made such a specific holding. Katyal did not back down, arguing that while the Court may not have fully applied the rule, it had certainly stated the existence of tribal court civil jurisdiction over non-Indians. This set up one of the most compelling moments of Katyal’s argument. In arguing to place civil jurisdiction over non-Indians in the “heartland” of sovereignty, Katyal turned to a line from Strate v. A-1 Contractors (one that Ginsburg had read aloud earlier in the argument), leading Scalia to dismiss the argument entirely as one rooted in dicta when judgments were required. Katyal quickly pointed out that Goldstein had used a line from Nevada v. Hicks that was similarly dicta, and noted that “it is dicta of the most persuasive sort” supporting an “unbroken rule of this Court” that tribal court civil jurisdiction is presumptive. Katyal went on to point out that the Court’s opinions requiring a party to exhaust tribal remedies before seeking review in federal courts (Iowa Mutual and National Farmers Union) would make no sense if tribal courts didn’t have some jurisdiction over non-Indians.

A series of hypotheticals from the Justices led directly into a discussion of the details surrounding the Mississippi Choctaw’s central argument that a party’s deliberate (although not necessarily express) consent to jurisdiction is the touchstone of whether civil jurisdiction exists over non-Indians. Katyal reminded the Court that its precedents require a “tight nexus” of facts that show knowledge of tribal jurisdiction and a deliberate decision to engage in the actions triggering jurisdiction. Roberts interrupted Katyal’s exposition of the “nexus” of fact showing consent to inquire whether a non-Indian facing a jury of all tribal members can be afforded due process protections. Katyal tried to divert the question at first, noting that the tort case against Dollar General would not involve a jury, but he ultimately answered that any concerns about due process are handled by the Indian Civil Rights Act application of due process to the tribal systems of dispute resolution; and that, in any event, if Congress was still uncomfortable it could restrict jury trials in the tribal courts with its plenary power. Justice Stephen Breyer asked Katyal how this would be different than a citizen of one state facing the potentially biased juries of another state for conduct in the forum state. However, the answer was swallowed by additional questions, and remained for the United States to deal with more fully.

Arguing for the United States as amicus curiae, Edwin Kneedler answered some of Dollar General’s contentions that Congress needs to take action in confirming the civil jurisdiction of tribal courts over non-Indians. Kneedler, however, used the findings from several committee reports on tribal justice and courts legislation to illustrate his point that Congress has already evinced thorough support for both the competency of tribal courts and the existence of civil jurisdiction over non-Indians. As a result, he found himself in the middle of an ideological exchange over the weight accorded to congressional committee reports between Scalia and Roberts on one side and Sotomayor and Breyer on the other. With Kneedler trying to get his point about congressional action out in the middle of the exchange among Justices, Roberts quipped “ I’m sorry about your point” before directing attention back to a pending question by Sotomayor. Kneedler eventually broke free of the exchange to answer a question about why Congress has the power to allow non-Indian civil matters to be resolved in tribal courts rather than Article III courts – because Congress has never expressly subtracted this power from the pre-existing inherent sovereign power of tribes. Kneedler also got the clean shot that Katyal did not at Roberts’s question about whether a non-Indian being tried before a jury of tribal members was consistent with due process, arguing that it is no different than a citizen of Alabama being tried before a jury of Mississippi peers and that the key point is that the tribal member jury are all citizens of the forum.

The outcome of this case is tough to call after the argument. It looks to be a case that may be decided on a tight vote. But one thing is absolutely certain. Regardless of the outcome, sophisticated tribes and businesses will spend increasing amounts of energy at the bargaining table fashioning partnerships where consents to applicable law and forum are clear and express.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case. The author of this post, however, is not affiliated with the law firm.]