Impact of Dollar General Affirmance

Huge win for the Mississippi Band of Choctaw Indians tribal court and most especially for the family of John Doe. The case must now return to the tribal court for a hearing on the merits. Presumably, DG will settle and we won’t hear any more about this case. One guesses, however, that if DG loses in a merits battle, it could AGAIN try the federal courts to see if they will hear another challenge to the tribe’s jurisdiction, perhaps more closely tied to something like punitive damages. Highly unlikely I would guess.

The battle waged at oral argument may be repeated again and again throughout Indian country. The constitutional issues are highly salient to the conservatives remaining on the Court. At least one thing we can thank DG for is making the best case for nonmembers on those constitutional issues.

The next Supreme Court Justice will decide whether tribes can assert civil jurisdiction over nonconsenting nonmembers. Meanwhile, tribal court plaintiffs will continue to cite to the Fifth Circuit’s opinion in DG, the Ninth Circuit’s opinion in Water Wheel, Merrion, and related cases. 

On a more speculative note, hopefully historians will figure out what was going on for the past six and a half months for all of this to end up in a 4-4 tie. One would have to guess that one or more Justices switched votes in the very recent past. Perhaps the Chief Justice assigned himself the majority after oral argument (he did write Plains Commerce and so has a track record), and struggled mightily to hold a majority for the past several months. Or perhaps Samantha Bee’s satire swayed someone at the last minute.🙂

This entry was posted in Author: Matthew L.M. Fletcher, Supreme Court, tribal courts and tagged , , , . Bookmark the permalink.

3 Responses to Impact of Dollar General Affirmance

  1. Jeanette Wolfley says:

    Hi Matthew, Yes, huge win for the Tribe. I attended the argument and Bryant and I agreed it was a tough one. Justice Kennedy’s questions were troubling. No doubt justice Scalia ‘ s passing had an impact.

    I am on travel and was wondering what the court decided in EXC v. Jensen tort case arriving on navajo. 9th ruled no tribal jurisdiction. Do uou know?

    Jeanette

  2. Stan says:

    I’m wondering about the enforcability of the decision. If DG refused to recognize tribal jxn, what recourse would the tribes have?

  3. John Dossett says:

    Hi Jeanette — we believe EXC v. Jensen was held pending the result in Dollar General, and maybe went to conference today. We will see how that turns out. Maybe they will postpone it again. To me it seems unlikely that they will accept cert in many cases until they have a 9th justice.

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