Consider two commercial contracts. The first requires customers to waive their rights to bring class actions against large businesses in favor of private arbitration. The second requires a reservation leaseholder to adjudicate disputes in tribal court. Both contracts require dispute resolution in fora over which the Supreme Court does not exercise supervisory jurisdiction. Both arbitration and tribal courts are favored by acts of Congress.1 Both contracts are hotly contested in the Supreme Court. But the arbitration clause contract has been affirmed in a series of recent decisions.2 The tribal court contract, by contrast, is pending before the Court in Dollar General Corp. v. Mississippi Band of Choctaw Indians.3 Ironically, while the more conservative Justices signed on to the arbitration clause decisions, these same Justices may be Dollar General’s best bets for escaping tribal jurisdiction. This short Essay details the key arguments in Dollar General and argues that to undo the tribal contract would unnecessarily and unconstitutionally undo the right to contract for Indian nations.
Justice Scalia’s death may mean a 4-4 tie in the Dollar General case. Justice Scalia was in the majority in the most recent tribal civil jurisdiction dispute, Plains Commerce Bank v. Long Family Land & Cattle Co.,32 decided by a 5-4 vote, split along the traditional conservative-liberal voting pattern. In Plains Commerce, Justice Scalia asked a nonmember company that had not specified jurisdiction in its commercial agreement with a tribal member-owned business: “[Y]our client could have obtained that certainly [sic] by inserting a choice of law provision providing that any disputes would be resolved somewhere else, couldn’t it?”33 The answer in that case from the nonmember? “I think that in the face of silence in the contract, the general rule [against tribal jurisdiction] controls rather than its exceptions.”34 There is a choice of law provision in Dollar General, negotiated at arm’s length by sophisticated business entities, and it points to tribal court jurisdiction.35