The United States Supreme Court has a number of Indian law cases on its docket this term.
Dollar General Corporation v. Mississippi Band of Choctaw Indians: Perhaps the highest profile case pending before the Court raises the issue of the necessary demonstration of consent as a prerequisite for tribal court jurisdiction over non-members. Oral arguments were held on December 7, 2015.1 Dollar General challenged the Mississippi Band of Choctaw Indians' exercise of tort jurisdiction over the corporation, for a suit that a manager of a Dollar General store had sexually abused a young Tribal member who was working at the store, and the award of a multi-million dollar judgment, arguing that the Tribal court did not have jurisdiction over the corporation. The Mississippi Band pointed toward language in its contracts and leases with Dollar General in which Dollar General agreed to submit to Tribal courts and Tribal laws, and that the tort suit was within the scope of that agreement. The Fifth Circuit Court of Appeals agreed that the Tribal court had jurisdiction over Dollar General.
Dollar General advanced the broad argument that Native American tribes have no civil jurisdiction over non-Indians, a rule that would extend the Supreme Court's opinion in Oliphant v. Suquamish Indian Tribe3 (which prohibited Tribal criminal jurisdiction over non-Indians) to civil cases. It also argued, in the alternative, that neither of the exceptions to the general rule that tribes lack jurisdiction over non-members, stated in Montana v. United States,3 unless (1) the non-member has consented to the exercise of jurisdiction, or (2) when the conduct of non-Indians directly affects the tribe's political integrity, economic security, or health and welfare, is applicable. The argument focused on the first exception, proffering that the lease and business agreements between Dollar General and the Tribe were insufficient to permit the Tribe to exercise jurisdiction over a tort not arising out of any contract between the parties.
At oral argument, the Supreme Court's questioned the scope of the agreements between the parties, whether Tribal courts, generally, provided sufficient due process protections to non-Indians, and whether the Constitution permitted the exercise of jurisdiction over non-Indians by Tribes.4 As noted by one commentator, "[r]egardless 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."5
Nebraska v. Parker: This case presents the question of whether a non-Indian business is subject to the legislative and taxation authority of the Omaha Tribe of Nebraska. Oral argument occurred on January 20, 2016.6 The Omaha Tribe sought to collect taxes on alcohol sales by non-Indian businesses that were located on land outside the current boundaries of the Omaha Reservation, but within the historic boundaries of the Reservation. After granting an injunction against application of the tribal tax statute, the federal district court stayed the case so the Omaha Tribal Court could consider its jurisdiction. The Tribal Court ruled that the Reservation was not diminished by an 1882 act of Congress that sold a portion of the Omaha Reservation, and the Tribal Court had jurisdiction and the non-Indian businesses, located within the territory that had been sold in 1882, were subject to the liquor tax. The federal district court then lifted its stay and considered the question of whether the Tribal Court had jurisdiction over the non-Indians, concluding, as had the Tribal Court, that the Reservation was not diminished by the 1882 act. The Eighth Circuit Court of Appeals affirmed, ruling that the reservation status of the land on which the non-Indian businesses were located had not been terminated by any act of Congress, and "mindful to resolve any ambiguities in favor of the Indians," concluded that "there is nothing in this case to overcome the presumption in favor of the continued existence of the Omaha Indian Reservation."7 The Supreme Court has been asked to consider whether the Eighth Circuit correctly applied the test articulated in, among other cases, Solem v. Bartlett,8 to determine whether Congress intended to diminish a reservation.
Nebraska's brief to the Supreme Court argues that 98% of the disputed area was conveyed to non-Indians after the 1882 act, the area remains predominantly non-Indian, and Nebraska law has applied since 1882, and thus the decision significantly alters the status quo.9 The United States has intervened in support of the Tribe's position that the Reservation was diminished, arguing the record supported the district court's analysis. Nebraska v. Parker is significant because the Omaha Tribe, like many other Tribes, saw its reservation diminished by Congressional acts subsequent to the reservation's establishment.
Petitions: Petitions for certiorari are pending in multiple cases involving civil and criminal tribal court jurisdiction. The civil petitions include Jensen v. EXC, Inc., a case that, like Dollar General, raises issues of the scope of the consensual relationship exception of the Montana doctrine.10 The case arose when a non-Indian owned or operated tour bus was involved in an accident on a federal road within the Navajo Nation Reservation, and the estate of the Nation-member decedent filed a wrongful death suit in tribal court. The Navajo Nation Supreme Court had ruled that Montana only applies to non-Indian owned fee land within the Navajo Nation, or, alternatively, that the tour operator consented to jurisdiction based on an unsigned permit to operate within the Nation. Conversely, the Ninth Circuit held that, because the federal highway was the equivalent of non-Indian fee land, Montana applied, and neither Montana exception was satisfied because the unsigned permit "did not provide sufficient notice" that the tour operator would be subject to tribal court jurisdiction, and a tort suit did not "implicate the second Montana exception."11 The petition for certiorari presents the question of whether Montana applied to the federal road crossing the Reservation and the scope of the Montana exceptions. As of the publication of this article, the petition had not been ruled on by the Court.
In White v. Regents of the University of California, the petition for certiorari sought review of a Ninth Circuit ruling dismissing a complaint based on the Ninth Circuit's conclusion that a Native American tribe was a required party under Federal Rule of Civil Procedure 19 and the tribe's sovereign immunity had not been abrogated by the Native American Graves Protection and Repatriation Act (NAGPRA).12 The petition presents the question of whether Rule 19 requires dismissal where a tribe has immunity from suit, and the related question of whether tribal immunity has been abrogated in cases where no other forum is available and no relief against the tribe is sought. On January 25, 2016, the Court denied the petition, leaving standing the Ninth Circuit's ruling that the affected tribes were indispensable parties to a suit under NAGPRA, and that the statutory scheme did not abrogate tribal sovereign immunity.
No. 13-1496, on appeal from an opinion of the Fifth Circuit Court of Appeals, reported at 746 F.3d 167 (2014). Modrall Sperling filed an amicus curiae
brief for the Association of American Railroads, advocating a rule requiring clear and unequivocal consent of a non-member as a precondition to the exercise of tribal court jurisdiction over the nonmember.
14 A copy of the oral argument transcript is available here.
6 No. 14-1406, appealing opinion of the Eighth Circuit Court of Appeals, Smith v. Parker, 774 F.3d 1166 (2014).
7 Id. at 1168-69 (internal quotation marks and citations omitted).
8 Brief for Petitioners, at 2, 26 (Nov. 16, 2015), available here.
9 No. 15-64, appealing opinion of the Ninth Circuit Court of Appeals, EXC, Inc. v. Jensen, 588 Fed. App'x 720 (2014) (unpublished).
10 588 Fed. App'x at 722.
11 No. 15-667, appealing opinion of the Ninth Circuit Court of Appeals, White v. Univ. of California, 765 F.3d 1010 (2014).