United States: Supreme Court 2015 Term In Review: Indian Law Cases

Overview

In an unusually active term for Indian law issues, the Supreme Court heard three major cases in OT 2015. In two of the three cases, the Court unanimously voted in favor of tribal interests. But perhaps the most significant case is the one the Court did not decide: Dollar General v. Mississippi Band of Choctaw, which involved the scope of tribal court civil jurisdiction over nonmembers. Justice Antonin Scalia's death led to a deadlocked vote (4-4 tie), thus preserving (without precedential effect) the 5th Circuit's jurisdictional ruling in favor of the Tribe.

Although the Roberts Court is viewed by some as unsympathetic to Indian interests, this Term can only be considered a success for tribal advocates. In U.S. v. Bryant, the Court unanimously upheld, against constitutional challenge, the use of uncounseled tribal court convictions as qualifying predicate offenses for federal court sentencing. In Nebraska v. Parker, the Court unanimously reaffirmed its prior holdings that Congress must act explicitly to diminish an Indian reservation. Even the Court's one-sentence, per curiam decision in Dollar General ("The judgment is affirmed by an equally divided Court.") represents a victory for tribal interests in that it left undisturbed a 5th Circuit victory in favor of the Mississippi Band of Choctaw Indians. (Two other cases, Menominee Indian Tribe of Wisconsin v. United States and Sturgeon v. Frost, involved Indian tribes or lands but did not ultimately turn on core Indian-law issues.)

As in a few other cases this Term, Justice Scalia's death—and Congress' failure to confirm his replacement—left the important legal question in Dollar General unanswered. Dollar General had consented to tribal court jurisdiction regarding matters arising out of its lease with a tribally owned corporation on trust lands, but contested jurisdiction when it was sued in tort over allegations of sexual abuse of a minor by a Dollar General store manager. The 5th Circuit ultimately held that the Tribe could validly exercise jurisdiction and that judgment was affirmed by an equally divided Supreme Court. Many observers had predicted, however, that Justice Scalia (in light of his prior opinions) would have voted to reverse the court of appeals. See, e.g., Nevada v. Hicks, 533 U.S. 353 (2001) (tribal court cannot assert jurisdiction over certain civil claims against state officials). The absence of Justice Scalia's decisive fifth vote may well have avoided a reversal and the creation of binding precedent adverse to tribes. If a similar challenge to tribal jurisdiction returns to the Supreme Court—including, perhaps, after further tribal court proceedings involving Dollar General—Justice Scalia's successor will almost certainly hold the deciding vote.

Other notable observations

Justice Thomas' unusual concurrence in U.S. v. Bryant bears mention. Although he joined the majority opinion, he announced that he would be open to reconsidering in a future case two aspects of tribal authority that have been settled by Supreme Court law for decades: (1) that tribal prosecutions need not comply with constitutional provisions framed specifically as limitations on federal or state authority; and (2) that the Constitution grants Congress plenary authority over Indian tribes (a constitutional question that was settled back in 1868). No one else joined Justice Thomas' concurrence, however, so the practical import of his views appear limited.

One of the strongest affirmations of inherent tribal sovereignty this Term actually came in a case that did not directly implicate Indian issues. In Puerto Rico v. Sanchez Valle—involving the application of the Double Jeopardy Clause to Commonwealth of Puerto Rico—the Court, in dicta, noted that the Clause does not apply to successive prosecutions by the federal government and Indian tribes in light of "the 'primeval' or, at any rate, 'pre-existing' sovereignty" of those tribes. The Court explained that, "beginning with Chief Justice Marshall and continuing for nearly two centuries, this Court has held firm and fast to the view that Congress's power over Indian affairs does nothing to gainsay the profound importance of the tribes' pre-existing sovereignty." In so doing, the majority rejected the "deeply disturbing" reasoning of the dissent, which had postulated that Congress was the "source" of tribal criminal enforcement authority. The Court explained that "the tribes are separate sovereigns precisely because of [their] inherent authority." (As in Bryant, Justice Thomas wrote separately to state his "concerns" regarding the Court's Indian law jurisprudence.)

Looking ahead

Taken together, the court's decisions this Term (as well as its 5-4 decision in Bay Mills two terms ago) may signal a tenuous but growing solicitude for Indian tribes and issues in the Supreme Court. Of course, the critical unknown variable remains the identity of Justice Scalia's replacement—an issue that will almost certainly not be resolved until after the November presidential election, if not well into next Term.

No Indian law cases have been granted for next term, but several petitions are pending. Among the most notable are Pro-Football, Inc. v. Blackhorse, et al., in which the Washington Redskins professional football team filed an unusual petition for certiorari before judgment, seeking Supreme Court review of its canceled "Redskins" trademark before the 4th Circuit has rendered its decision; and Lewis v. Clarke, in which the Court has been asked to resolve a Circuit split regarding whether tribal sovereign immunity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.

More details on the Term's major Indian law decisions and the two pending certiorari petitions can be found below.

U.S. v. Bryant, No. 15-420: Use of Tribal Court Convictions for Sentencing in Federal Court

  • Facts: Bryant pleaded guilty in Northern Cheyenne Tribal Court to domestic abuse on five occasions between 1997 and 2007. Bryant was punished in tribal court by terms of imprisonment, never exceeding one year. In each of these tribal court convictions, Bryant was not provided with an attorney. In 2011, Bryant was arrested, yet again, for assaulting women. As a result of the 2011 assaults, a federal grand jury indicted Bryant on two counts of domestic assault by a habitual offender. The federal court used Bryant's previous offenses in tribal court to charge him as a "habitual offender."
  • Question presented: Can uncounseled misdemeanor tribal court convictions, which result in a term of imprisonment of less than one year, be used as prior convictions for the purposes of a repeat-offender statute?
  • Holding: Yes, so long as there are no constitutional defects in the previous tribal court convictions. A tribal member's Sixth Amendment right to counsel and Fifth Amendment right to due process are not violated by using prior uncounseled tribal court convictions as predicate offenses for a repeat-offender statute in federal district court. That is because, unlike in federal or state court, there is no constitutional right to counsel for defendants who receive a conviction resulting in imprisonment of less than one year in tribal court.
  • Implications: Beyond its practical federal criminal-law significance, the decision reaffirms the doctrine of inherent tribal sovereignty by recognizing that Indian nations are preconstitutional sovereigns unconstrained by the Bill of Rights.

Nebraska v. Parker, No. 14-1406: Diminishment of a Reservation

  • Facts: The Omaha Tribe sought to enforce tribal liquor licenses and taxes on retailers in Pender, Nebraska. The retailers challenged the tribal taxes on the grounds that Pender is no longer located on the Omaha reservation. The retailers argued that, while Pender was originally located on the Omaha reservation, the reservation was diminished in 1882 when Congress opened up the reservation to allotment.
  • Question presented: Did the 1882 Act that allowed the Omaha tribe to sell allotments of its tribal land reduce the original boundaries of the Omaha reservation such that Pender is no longer a part of the Omaha reservation?
  • Holding: No, the 1882 Act did not reduce the original boundaries of the reservation under the Court's well-established precedent in this area. Only the clear intent of Congress can determine when tribal land is diminished, and that intent was not present here.
  • Implications: The holding of this case is not surprising based on the Court's precedent. Notably, however, the Court left open the question of whether equitable considerations may limit the Tribe's power to tax the retailers in light of the Tribe's century-long absence from the disputed lands.

Dollar General Corp. v. Mississippi Band of Choctaw Indians, No. 13-1496: Tribal Court Jurisdiction for Tort Claims over Nonmembers

  • Facts: Dollar General opened a store in a retail shopping plaza located on trust lands within the Mississippi Choctaw reservation. Dollar General signed a multiyear lease with the tribally owned company that manages the shopping center, consenting to Mississippi Choctaw tribal court jurisdiction for matters arising out of its lease. A 13-year-old member of the Mississippi Choctaw Tribe was allegedly molested by the manager while interning at the Dollar General store. Dollar General unsuccessfully contested the jurisdiction of the tribal court.
  • Question presented: Despite the general rule (articulated in Montana v. U.S.) that tribes do not have civil jurisdiction over non-Indians, can tribal courts adjudicate civil tort claims against nonmembers that enter into agreements consenting to tribal court jurisdiction?
  • Holding: Lower court opinion affirmed by an equally divided Court (4-4).
  • Implications: The deadlocked decision creates no nationwide binding precedent and leaves the jurisdictional ruling binding in the 5th Circuit only. Expect to see this important issue in the Supreme Court again, perhaps after further tribal court proceedings involving Dollar General.

Pro-Football, Inc. v. Blackhorse, et al., No. 15-1874 (petition for certiorari pending): Constitutionality of Lanham Act's "Disparagement Clause"

  • Facts: Amanda Blackhorse filed a petition with the Trademark Trial and Appeal Board to cancel the registrations of six Washington Redskins trademarks for violation of the Lanham Act's disparagement clause, which bars the registration of trademarks that "may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute." The Board held that the trademarks should be canceled. The team sued in federal court to challenge the Board's decision and lost. During the team's appeal to the 4th Circuit, the United States petitioned for certiorari in a separate case implicating the constitutionality of the disparagement clause. The team then filed an unusual petition for certiorari before judgment, asking the Supreme Court to skip the 4th Circuit and to review its petition in tandem with the other.
  • Questions presented: Does the Lanham Act's disparagement clause violate the First Amendment either by restricting content or by being too vague? Does the delay between registering a trademark and canceling the registration under the disparagement clause violate due process?
  • Timing: The Court is expected to rule on the certiorari petition by October 2016.

Lewis v. Clarke, No. 15-1500 (petition for certiorari pending): Tribal Sovereign Immunity for Individual-Capacity Damages Actions

  • Facts: After a traffic accident involving a Mohegan Tribal Gaming Authority employee, petitioners (nontribal members) brought a damages suit against both the individual employee and the Authority. After petitioners voluntarily dismissed their claims against the Authority, the employee moved to dismiss on the ground of tribal sovereign immunity. The Connecticut Supreme Court, relying on the Supreme Court's Bay Mills decision, ultimately held that the doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their employment.
  • Question presented: Does the sovereign immunity of an Indian tribe bar individual-capacity damages actions against tribal employees for torts committed within the scope of their employment?
  • Timing: The Court is expected to rule on the certiorari petition by October 2016.

Summer Associates Lee M. Redeye and Brette A. Throckmorton (not admitted to practice) co-wrote this alert.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions