Here.
The petition is here.
Supreme Court
SCOTUS Denies Cert in NLRB, Pauma, and Shinnecock Petitions
Here is the order list.
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. 🙂
Dollar General Affirmed by an Equally Divided Court
Tunica-Biloxi Gaming Authority v. Zaunbrecher Cert Stage Briefs
Here:
Question presented:
It is well established that “Indian tribes are domestic dependent nations that exercise inherent sovereign authority. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991); Michigan v. Bay Mills Indian Community,_ U.S._, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014). “Among the core aspects of sovereignty that tribes possess – subject, again, to congressional action – is the common-law immunity from suit traditionally enjoyed by sovereign powers …. That immunity, we have explained, is a necessary corollary to Indian sovereignty and selfgovernance.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 890, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986).
In Michigan v. Bay Mills Indian Cmty., supra, this Court explained that the “baseline position … is tribal immunity; and [t]o abrogate [such] immunity, Congress must unequivocally express that purpose …. That rule of construction reflects an enduring principle of Indian law: Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian selfgovernment.” (Citations omitted; internal quotation marks omitted.) Id., 134 S.Ct. at 2031-32.
Lower court materials here.
Samantha Bee on Dollar General and Tribal Courts
Takeaways from the Bryant Decision
As observers might have predicted from the oral argument in United States v. Bryant (opinion here), the government’s victory was not surprising. Of course, even a few years ago, this outcome was far from a foregone conclusion, as the 2005 Canby-Washburn-Sands debates in the Federal Sentencing Reporter suggested.
A few takeaways:
1. Remarkable that the Court heaps some of the blame on states for failure to prosecute DV offenses in Indian country, citing to the now-mammoth studies supporting what people in PL280 states have been saying for more than a half-century:
Even when capable of exercising jurisdiction, however, States have not devoted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007)…. [slip op. at 5]
2. We all know it’s coming — the constitutional challenge to VAWA’s tribal jurisdictional provisions:
In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to authorize tribal courts to “exercise special domestic violence criminal jurisdiction” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, §904, 127 Stat. 120–122 (codified at 25 U. S. C. §1304). Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See §1304(d). We express no view on the validity of those provisions. [slip op. at 4 n. 4]
3. As is true most of the time, the Court does not acknowledge the disconnect between the terrible rates of crime in Indian country with the lack of effective law enforcement in Indian country, a reality created by Congress and made worse by the Court itself over the decades. Compare:
“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” [slip op. at 2]
With:
That leaves the Federal Government. * * * As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian country by a habitual offender. [slip op. at 5, 6]
And:
[Bryant] has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. [slip op. at 10]
The feds already don’t have the capacity to prosecute all the repeat DV offenders who are Indians like Bryant, then add in the non-Indians — there’s a problem that 117(a) doesn’t fix.
3. Tribal criminal convictions on Indians in compliance with the Indian Civil Rights Act are all right for Congress, and therefore okay for the Supreme Court:
Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. [slip op. at 16]
Let’s hope that statement applies to non-Indians, too.
4. Tribes start funding those criminal defender offices!!!!! This Lakota woman spent two months in jail because she couldn’t pay a $250 bond, let alone afford an attorney:
Angie told me that she had bought, not sold, marijuana that day. She should have been charged only with possession. She had pleaded not guilty at her arraignment, during which she had no representation. But because of the severity of her alleged crime — selling drugs to a minor — her bond was set at $250. Unable to pay, Angie was expected to sit in jail for the full two months until her next scheduled court appearance.
Indian country talks about taking care of kids and talks about changing the criminal justice system into a system of restorative justice, well, this doesn’t look it it to me.
SCOTUS Decides U.S. v. Bryant — Tribal Court Convictions May Be Used
Here is the opinion in United States v. Bryant.
From the syllabus:
Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution.
Background materials, briefs, etc. here.
SCOTUS Denies Cert in Seminole Tax, American Samoan Birthright Citizenship Cases
Here is the order list today. The Court denied cert in Seminole Tribe v. Biegalski. The petition and lower court briefs are here.
The Court also denied cert in Tuaua v. United States, the American Samoan birthright citizenship case.
SCOTUS Holds Puerto Rico Does Not Possess Separate Sovereign Authority to Prosecute; Indian Law Bullet Dodged
Here is the opinion in Commonwealth of Puerto Rico v. Sanchez Valle.
P.R. had tried to analogize itself to Indian nations, but that effort failed:
For similar reasons, Indian tribes also count as separate sovereigns under the Double Jeopardy Clause. Originally, this Court has noted, “the tribes were self-governing sovereign political communities,” possessing (among other capacities) the “inherent power to prescribe laws for their members and to punish infractions of those laws.” Wheeler, 435 U. S., at 322–323. After the formation of the United States, the tribes became “domestic dependent nations,” subject to plenary control by Congress—so hardly “sovereign” in one common sense. United States v. Lara, 541 U. S. 193, 204 (2004) (quoting Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831)); see Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978) (“Congress has plenary authority to limit, modify or eliminate the [tribes’] powers of local self-government”). But unless and until Congress withdraws a tribal power—including the power to prosecute—the Indian community retains that authority in its earliest form. See Wheeler, 435 U. S., at 323. The “ultimate source” of a tribe’s “power to punish tribal offenders” thus lies in its “primeval” or, at any rate, “pre-existing” sovereignty: A tribal prosecution, like a State’s, is “attributable in no way to any delegation . . . of federal authority.” Id., at 320, 322, 328; Santa Clara Pueblo, 436 U. S., at 56. And that alone is what matters for the double jeopardy inquiry.
Slip. op. at 9-10. So now we can say tribal sovereignty is “primeval”: whether we should is another question.
The dissent, authored by Justice Breyer and joined by Justice Sotomayor, argues that tribal sovereignty actually does derive from Congress, by virtue of Congress not divesting it completely:
But as the Court today recognizes, this prelapsarian independence must be read in light of congressional action—or, as it were, inaction. That is because—whatever a tribe’s history— Congress maintains “plenary authority to limit, modify or eliminate the [tribes’] powers of local self-government,” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978), and thus the tribes remain sovereign for purposes of the Double Jeopardy Clause only “until” Congress chooses to withdraw that power, ante, at 10. In this sense, Congress’ pattern of inaction (i.e., its choice to refrain from withdrawing dual sovereignty) amounts to an implicit decision to grant such sovereignty to the tribes. Is not Congress then, in this way, the “source” of the Indian tribes’ criminal enforcement power?
Dissent at 5. No no no!!!!
Fortunately, the Court rejects this formulation, calling it “deeply disturbing”:
This Court’s reasoning could not have been plainer: The States (all of them) are separate sovereigns for double jeopardy purposes not (as the dissent claims) because they exercise authority over criminal law, but instead because that power derives from a source independent of the Federal Government. See Heath, 474 U. S., at 89. So too for the tribes, see supra, at 9–10; and, indeed, here the dissent’s contrary reasoning is deeply disturbing. According to the dissent, Congress is in fact “the ‘source’ of the Indian tribes’ criminal enforcement power” because it has elected not to disturb the exercise of that authority. Post, at 5. But 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. See Worcester v. Georgia, 6 Pet. 515, 559–561 (1832); Talton v. Mayes, 163 U. S. 376, 384 (1896); Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___–___ (2014) (slip op., at 4–5). And once again, we have stated in no uncertain terms that the tribes are separate sovereigns precisely because of that inherent authority.
Slip. op. at 11 n. 5. Whew!
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