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


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.

In association with
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.