New Scholarship on Tribal Jurisdiction to Protect Native Women and Children

Sarah Deer & Mary Kathryn Nagle have published Return to Worcester:
 Dollar General and the Restoration of Tribal Jurisdiction to Protect Native Women and Children in the Harvard Journal of Law and Gender.

An excerpt:

The Supreme Court’s recent 4-4 tie-vote in Dollar General Corp. v. Mississippi Band of Choctaw Indians signals a distinctive shift away from the incoherent modern framework created by Oliphant v. Suquamish Indian Tribe—a framework that stripped Tribal Nations of their inherent authority to protect Native women from non-Indian perpetrated violence. With four Justices voting for—and not against—tribal jurisdiction, Dollar General signals a return to the Court’s 1832 decision in Worcester v. Georgia, wherein the Court affirmed the exclusive authority of Tribal Nations to exercise criminal jurisdiction over non-Indians who willingly enter tribal lands. For Native women—and the Tribal Nations that seek to protect them—the Court’s 2016 result in Dollar General signals a significant victory.

Fletcher on Statutory Divestiture of Tribal Sovereignty

“Statutory Divestiture of Tribal Sovereignty” is now available on SSRN, here. Forthcoming in the Federal Lawyer, April 2017.

The abstract:

The Supreme Court’s non-decision in Dollar General v. Mississippi Band of Choctaw Indians is evidence not only of disagreement on tribal civil jurisdiction but perhaps also uncertainty in how to analyze divestiture of tribal sovereignty. Most scholars (including myself) have described the Court’s behavior in tribal sovereign authority cases as one of judicial supremacy, in that the Court merely makes policy choices based on its own ideological views of tribal power. That is a mistake. Persuaded by the federal government’s argument in Dollar General, I now argue that the proper analysis rests with federal statutes. Indian law practitioners can and should reconsider the Court’s prior decisions in this vein, as the best ones already do, and analyze tribal sovereign powers in the paradigm of statutory divestiture rather than judicial supremacy.

Fletcher Commentary on Dollar General in the Yale Law Journal Forum

Here is “Contract and (Tribal) Jurisdiction.” (PDF)


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


NYU Law Review Seeking Submissions from Indian Law Scholars

A message from NYU Law Review editor Raymond Fadel…

NYU Law Review is seeking submissions from Indian law scholars.

  1. Online Series on Dollar General.

Our Online Department has voted to publish an online feature series spotlighting the Dollar General case, and its legal and policy implications. Amongst other things, we are currently looking for pieces that discuss the case itself, its legal background and importance, and its implications for Indian and non-Indian country alike—particularly Indigenous women’s issues and its insights into women’s issues in general.

To facilitate timely debate, we plan on publishing the spotlight series shortly after the Dollar General case is decided. We encourage you to submit your Essays and Comments within two weeks after the Supreme Court’s decision, but of course, you are welcome to send your pieces for consideration as soon as you have them.

Online submissions have a maximum word limit of 10,000 words and may be submitted directly to our Senior Online Editor, Agne Jomantaite, at or via Scholastica. More information on our submission policy can be found on our website,

  1. Print Articles.

As always, our Articles Department is seeking submissions covering diverse subject-matters, especially including general issues in Indian law that would be accessible to a generalist audience. Article submissions must have a minimum of 10,000 words and be submitted on Scholastica. In addition to submission on Scholastica, you may also forward any submission directly to our Senior Articles Editor, Tyler Domino, at The Department is accepting unsolicited articles through the end of March, 2016.

Commentary on the Omaha Reservation Boundaries Argument

Did Paul Clement just throw the Mississippi Choctaw tribal government under the bus?!?! Well, no, but the Omaha tribe’s reservation boundaries case and the Mississippi Choctaw tribe’s jurisdiction case somehow have come uncomfortably close together.

There seemed to be two major threads of argument in Nebraska v. Parker. The first is what the Supreme Court granted cert to decide, whether the Omaha reservation boundaries had been diminished. The second seemed to be about the applicability and impact of the Sherrill decision.

On the reservation boundaries matter, the federal government made a strong case for the proposition that the State of Nebraska long has acknowledged the reservation boundaries of the Omaha reservation’s western side:

another point that I would make is that the single best evidence of what these parties could have expected is the retrocession, because that was a unique moment in which the State of Nebraska and the United States talked directly and officially to one another about the burdens and responsibilities for exercising jurisdiction in the reservation. And the United States in the Federal register as official can be said the entire reservation remains intact.

And the State of Nebraska, as we point out in our brief, had exactly the same understanding. The assistant attorney general for Nebraska came and testified before Congress that all of Thurston County is within the Winnebago and within the Omaha Reservation.[tr. at 46, lines 10-23]

However, in that part of the reservation, about 90 percent of the residents are nonmembers. So the real meat of the argument delved into the murky waters of whether the Court’s Sherrill decision focusing on the “settled expectations” of the residents and the governments would be upset by the tribe’s liquor ordinance. [BTW Sherrill is an issue waived (i.e., never cited) by the State at the Eighth Circuit — opening brief, reply brief.]

Again, the government squarely argued against the impact of Sherrill:

If I could go to the City of Sherrill argument, which got brought up a lot today. I think this case is extremely different from the City of Sherrill for a number of reasons, but let me give you two big ones. In the City of Sherrill, this Court held that principles of equity restrained the Tribe from trying to resurrect a claim of inherent sovereign immunity.

In this case by contrast, first of all,  we’re not just talking about the Tribe’s jurisdiction. We’re talking about the jurisdiction of the United States as well.

And second of all, we’re not talking about a claim of inherent authority. This is authority exercised pursuant to a Federal statute, 18 U.S.C. 1161. And it ­­ for that reason, principles of equity simply don’t apply here.[tr. at 42-43, lines 16-25, 1-7]

As anyone knowledgeable about Sherrill knows, the case (at least in part) involved whether a tribe’s reassertion of sovereign authority would be “disruptive” to nonmembers. And here is where the interests of the Omaha Tribe and the Mississippi Choctaw might conflict. In a colloquy with Justice Kennedy, Mr. Clement for the tribe today states:

JUSTICE KENNEDY: Well, you ­­ you have the example of a scuffle. Suppose an Indian and a non­Indian are in a scuffle. If ­­ if there’s a ­­ a minor criminal statute making this a minor offense, does the Tribe have jurisdiction over the non­Indian?

MR. CLEMENT: I ­­ I don’t think that it 10 would within the Village of Pender. And I think that is a reflection of the very limited authority that the Tribe has over non­Indians ­­

JUSTICE KENNEDY: And that’s true with reference to all Indian tribes? Can you cite me any proposition for that?

MR. CLEMENT: Well, ultimately, it might be ­­ it might turn on the scope of the Montana decision. And obviously, this Court has the Dollar General decision in front of it. [tr. at 37, lines 4-19]

The government’s attorney added:

MR. KEDEM: So the things that the Tribe could do would be any express delegation of authority from Congress. The only one that we’ve heard about is the alcohol ordinance. Beyond that, the State and Tribe could go back ­­

JUSTICE GINSBURG: We heard about the fuel ­­ the revenue sharing of the fuel.

MR. KEDEM: That’s right. There was an agreement to share revenue fuel, although that was something that the State entered into voluntarily with the Tribe. Beyond that, the Tribe would have to fall under one of the two Montana exceptions, which are, as this Court is aware of because of the Dollar General case, very limited. [tr. at 41, lines 1-14]

Ironically, weirdly, and crazily, if the Court acknowledges (as it should) the authority of the Mississippi Choctaw to assert jurisdiction over a company that consented in writing to that jurisdiction, it might somehow hurt the Omaha Tribe’s ability to assert authority granted by the United States to regulate liquor. But these cases are so different (yes, Dollar General consented to tribal jurisdiction, and yes, the United States authorized the Omaha Tribe to tax liquor) it shouldn’t matter at all.


Garrett Epps on the Limits of the Constitution to Govern the US

Very interesting essay, frankly acknowledging the limitations of both the Constitution to govern and the Supreme Court to decide matters involving Indian country. 

From the Atlantic, here is “Can the Constitution Govern America’s Sprawling Empire?”

Ed Gehres Dollar General Post-Argument Analysis

Here is “Argument analysis: Is tribal court civil jurisdiction over non-Indians truly a constitutional issue, or one of settled precedent?”

The best line (from a very good analysis):

The outcome of this case is tough to call after the argument. It looks to be a case that may be decided on a tight vote. But one thing is absolutely certain. Regardless 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.

Coverage of Oral Arguments at the Supreme Court for Dollar General

From The Atlantic: “Who Can Tribal Courts Try? The U.S. Supreme Court weighs which disputes America’s Indian tribal courts can adjudicate.”

From The New York Times: “Justices Weigh Power of Indian Tribal Courts in Civil Suits”

Reflections on the Dollar General Argument 

For the first time, I attended an argument live at the Supreme Court. I haven’t even read the transcript yet, and so my commentary is even more idiosyncratic than usual. But here goes.

On Judicial Discipline

If the Justices collectively had more judicial discipline, this would be one of their easiest cases, and likely would not be a candidate for certiorari review at all. But the oral argument, coupled with previous positions taken by certain Justices, suggests that there is a judicial discipline problem in federal Indian law.

First. Why this case is easy should have been adamantly clear when counsel for the tribe read the language of the business license in which Dollar General consented to the application of all manner of tribal laws, and agreed to abide by those laws. It doesn’t clear any clearer or express. Nor should it have to.

Second. Why there is a judicial discipline problem is evident where Justice Kennedy insisted from the outset that tribal sovereignty and Congression authority in relation to tribal sovereignty was in the table Monday, an issue not before the Court if the statement of questions presented is to be believed. Moreover, that Justices Scalia, Kennedy, and Thomas (who as usual did not speak but has written as such) suggested that the Supreme Court is in a position to second-guess or undo inherent tribal sovereign authority where Congress and the Executive branch have made considered judgments that tribes do have civil jurisdiction power on their own land is another expression of a lack of judicial discipline — the Supreme Court is not allowed to undo policy judgments expressed by the other branches because it disagrees with them. Finally, that Justices Kennedy, Scalia, Thomas (likely, as noted above), and possibly Alito were to disregard or significantly modify the Montana 1 analysis in the manner offered by counsel for Dollar General, it would mean that the Court’s statements favoring and assuming tribal jurisdiction in  Mazurie, Colville, Montana itself, Merrion, Mescalero, National Farmers, Iowa Mutual, Strate, and Plains Commerce are to be ignored because those three or four Justices don’t agree with them now.

Fortunately, the Chief Justice is well known for guiding the Court in a manner that respects the function of an Article III court, evidenced by the decision in the Michigan v. Bay Mills Indian Community case a year ago. 

Why Federal Constitutional Concerns Should Not Trouble the Court

The Chief Justice expressed concerns that nonmembers aren’t protected by federal constitutional law, an issue he mentioned in Plains Commerce Bank. He asked about a hypothetical scenario where a nonmember is held liable in tort by a tribal jury consisting entirely of tribal members. That’s a fair question.

First. Nonmembers like Dollar General have voluntarily entered Indian lands and engaged in commercial dealings that can subject them to tort and contract actions. Counsel for the tribe added that the tribe was asking the Court to acknowledge implied consent to tribal law for actions that the nonmember would “reasonably anticipate” given that context. Petitioners have lawyers, they knew what they were signing, and they knew that Indian tribes presumptively retain jurisdiction on Indian lands. 

Second. Congress and the Court itself has already considered how to deal with the possibility that nonmembers should be protected in tribal court. Congress did so almost fifty years ago in the Indian Civil Rights Act, and the Court impliedly approved of that regime in all the cases mentioned above by assuming and presuming tribal jurisdiction over nonmembers, even in tort. There’s a very long history of tribal dispute resolution involving nonmembers going back to before the Founding. At times, Congress has definitely intervened, but the primary legislative judgment over these issues is contained in ICRA. In more recent decades, Congressional support for tribal court exercise of inherent power is unfailing. Both counsel for the tribe and the United States hit this point very effectively.

Third. Even assuming tribal laws, tribal court practices, and ICRA somehow aren’t enough, then there actually is a remedy in state or federal court for nonmembers in virtually all relevant situations — the default due process analysis employed by state and federal courts (called comity) when determining whether to enforce a foreign judgment. In most cases, and definitely here involving Dollar General, nonmember assets subject to tribal court judgments are off-reservation. Tribal court plaintiffs likely will be forced to secure money judgments in state or federal court in the jurisdiction where the nonmember holds those assets. Nonmembers complaining of due process irregularities in tribal court will get their day in state or federal court that way. If the nonmember is holding assets where the tribal court can reach, that is on reservation, then the nonmember has already consented in every meaningful way to tribal jurisdiction anyway.

All of those mechanisms ensure fundamental fairness, not to mention the impressive professionalization of tribal judiciaries in the last half century, exemplified by the Mississippi Choctaw judiciary.

Justice Kennedy’s repeated mantra that Indian tribes are, in his words, “nonconstitutional”, is the strongest evidence of a lack of judicial discipline (he and Justice Thomas I believe have used the phrase “extra constitutional” in opinions past). Mississippi Choctaw certainly isn’t “nonconstitutional” — its constitution and laws are all online. But I suspect that wasn’t his point. I suspect his point is that he doesn’t think the Court or Congress should allow Indian tribes to assert jurisdiction over nonmembers. But the United States or the Court cannot grant to Indian nations power the tribes already possess. Moreover, the United States disagrees with Justice Kennedy’s policy preference now and has presumed tribal jurisdiction since the Founding. Tribal self governance and sovereignty over Indian lands was a choice negotiated centuries ago by Indian nations and the US and that choice is simply not subject to Article III judicial review, especially 200+ years later and especially given that tribes have successfully complied with Congressional guidelines in this area.

How Far Tribes Have Come

That at least four and perhaps as many as seven Justices seemingly agreed (and even counsel for Dollar General conceded) that Indian courts are fully capable of guaranteeing fundamental fairness to all litigants shows that Indian nations have won the game of self governance. Millions of nonmembers have consented to at least some form of tribal jurisdiction in the last few decades, and no decision of the Supreme Court can stop that now. National legislation and all those Supreme Court decisions noted above have allowed Indian nations to craft legal systems that comport with fundamental fairness. And Indian nations are serious economic players. Even if the Court does what Dollar General asks of it, that decision will be quickly, and maybe even hilariously, irrelevant as soon as it is announced. Nonmembers and tribes will shrug, and go back to what they were doing before.

BTW, with deep respect to Justice O’Connor, the answer to Justice Breyer’s question is Braid of Feathers by Frank Pommersheim, Navajo Courts and Navajo Common Law by Ray Austin, and anything by Pat Sekaquaptewa or Sarah Deer or Mike Petoskey or Carole Goldberg or Wenona Singel or Kristen Carpenter or Angela Riley or Sarah Krakoff….