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‘Most Potentially Devastating Case for Tribes’ Going to SCOTUS: 4 Amicus Briefs Supporting Choctaw Indians

Supporters of the Choctaw Indians have filed Amicus briefs within the Supreme Court; the following is a look at four of the briefs.
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Dollar General v. Mississippi Band of Choctaw Indians is being called the “most potentially devastating case for Indian tribes in half a century” and oral arguments will be heard by the Supreme Court of the United States beginning December 7.

The back history of the case began with a civil suit filed in tribal court by the family of John Doe, a young boy participating in the Youth Opportunity Program who alleges he was sexually assaulted several times during work hours by the Dollar General’s store manager. Today, legal motions filed by Dollar General have built the case into a jurisdictional dispute that has lawyers, politicians and business leaders at the tribal, local, state and federal levels watching each twist and turn closely.

RELATED: The Trouble With Dollar General: SCOTUS Takes on Tribal Jurisdiction in Sexual Assault Case

The Choctaw Indians received favorable rulings from the federal district court for the South District of Mississippi and the Fifth Circuit Court of Appeals in New Orleans, but in June 2014 SCOTUS intervened and agreed to hear the case. As the date for presenting oral arguments approaches, supporters of the Choctaw Indians (Respondents) have filed Amicus briefs with the Supreme Court, the following is a look at four of the eight briefs filed to date:

Brief for the United States Amicus Curiae supporting respondents

Filed by Hilary C. Tompkins, Department of the Interior solicitor and citizen of the Navajo Nation; Donald B. Verrilli Jr., solicitor general counsel of record; John C. Cruden, assistant attorney general; Edwin S. Kneedler, deputy solicitor general; Curtis E. Gannon, assistant to the solicitor general; William B. Lazarus and Mary Gabrielle Sprague, attorneys; and the Department of Justice.

The brief states that SCOTUS “has ‘repeatedly recognized the Federal Government’s longstanding policy of encouraging tribal self-government’ through means including the ‘development’ of ‘[t]ribal courts.’ Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14-15 (1987). At the Court’s invitation, the United States filed a brief at the petition stage of this case.”

The argument presented within the brief is that the fifth circuit was correct in their ruling in favor of the tribal court having jurisdiction over the civil tort claims against petitioners, “which are based on conduct that occurred on tribal trust land and arose from petitioners’ operation of a store pursuant to a lease with, and business license from, the tribe, as well as from the store’s voluntary participation in the tribe’s Youth Opportunity Program.”

Read the full brief here.

Amicus Curiae of the American Civil Liberties Union and the ACLU of Mississippi supporting the Respondents

The ACLU brief was filed by Katherine Florey, UC Davis School of Law; Stephen L. Pevar, counsel of record ACLU; Matthew A. Coles and Steven R. Shapiro, ACLU.

Highlighted in the ACLU brief is the fact “[t]he Court will determine in this case the extent to which Indian tribal courts may exercise civil jurisdiction over the activities of nonmembers on Indian trust land.”

The ACLU believes the answer lies in fair notice and offers multiple reasons as to why: “It provides a unifying explanation of the Court’s cases regarding tribal jurisdiction over nonmembers; it is familiar from other jurisdictional contexts; and it strikes an appropriate balance between tribal sovereignty and fairness to nonmembers.”

Read the full brief here.

Brief for the Puyallup Tribe of Indians; Southern Ute Indian Tribe; Navajo Nation; Mashantucket Pequot Tribal Nation; Sac and Fox Nation Tribal Court; Big Valley Band of Pomo Indians; Blue Lake Rancheria; Chemehuevi Indian Tribe; Chicken Ranch Rancheria of Me-Wuk Indians; Rincon Band of Luiseno Mission Indians; Santa Ynez Band of Chumash Mission Indians; Shakopee Mdewakanton Sioux Community Tribal Court; Northwest Intertribal Court System; Southwest Intertribal Court of Appeals; American Indian Law Center, Inc.; The Michigan Tribal State Federal Judicial Forum; and National American Indian Court Judges Association as Amici Curiae in support of respondents

Filed by Sarah Krakoff, profess and schaden chair University of Colorado School of Law; and Harry R. Sachse, counsel of record.

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With multiple tribal groups present in one brief, there are a variety of arguments as to why SCOTUS should rule in favor of the Choctaw Indians.

“The Puyallup Tribe of Indians, Southern Ute Indian Tribe, Navajo Nation, Mashantucket Pequot Tribal Nation, Blue Lake Rancheria, Chemehuevi Indian Tribe, and Rincon Band of Luiseno Indians are federally recognized Indian tribes with active court systems regularly handling cases involving both Indians and non-Indians. These tribes have a strong and direct interest in seeing that companies that choose to do business within their reservations obey tribal laws and are susceptible to suit in tribal courts if they harm tribal members.”

For the Shakopee Mdewakanton Sioux Community Tribal Court and the Sac and Fox Nation Tribal Court, the interest lies within ensuring the tribal courts will continue to be able to hear cases involving nonmembers for “claims arising within the courts’ jurisdiction.”

The Northwest Intertribal Court System (NICS), the Southwest Intertribal Court of Appeals (SWITCA), and the American Indian Law Center, Inc. (AILC) are non-profit organizations, the latter associated with the University of New Mexico School of Law, all with strong tribal working relationships that include providing judicial services to more than 28 tribes.

“The Michigan Tribal State Federal Judicial Forum is an ongoing forum to foster working relationships among all of Michigan’s court systems. Members include 12 tribal judges and 12 state judges. The National American Indian Court Judges Association is a non-profit membership organization of present and former tribal court judges. These organizations have helped tribal courts become exemplary courts in their areas and strongly support the continuation of tribal jurisdiction in cases such as this one.”

The Chicken Ranch Rancheria of the Me-Wuk Indians, Big Valley Band of Pomo Indians, and the Santa Ynez Band of Chumash Indians are federally recognized that call the state of California home and are in the process of establishing tribal court systems. Their interest in the case lies in preserving the jurisdiction of tribal courts.

Their brief offered SCOTUS a look at an accurate understanding of present day tribal courts – “including strong working relationships with state and federal courts.”

Read the full brief here.

Amicus brief from the states of Mississippi, Colorado, New Mexico, North Dakota, Oregon, and Washington in support of Respondents

Filed by Jim Hood, attorney general of the state of Mississippi; Mary Jo Woods and Blake Bee, special assistant attorneys general; Cynthia H. Coffman, attorney general state of Colorado; Hector H. Balderas, attorney general state of New Mexico; Wayne Stenehjem, attorney general state of North Dakota; Ellen F. Rosenblum, attorney general state of Oregon; Robert W. Ferguson, attorney general state of Washington, and Peter K. Stris, counsel of record.

“Indian tribes generally lack civil authority over the conduct of nonmembers, subject to two important exceptions set forth by this Court in Montana v. United States, 450 U.S. 544 (1981). The first of those exceptions authorizes a tribe to ‘regulate … the activities of nonmembers who enter consensual relationships with the tribe or its members. …’ Id. at 565. This case presents a fundamental question about that exception: does it ever provide a basis for tribal courts to adjudicate tort claims against nonmembers?”

The states within this Amicus brief have “a clear interest in the resolution of the question presented because each is home to one or more federally recognized Indian tribes with whom it enjoys a strong and cooperative relationship.

The Petitioners argument is that tribal courts are “universally prohibited from exercising jurisdiction over nonmembers in civil tort suits, no matter how strong the consensual relationship between that nonmember and the tribe and no matter how clear the nexus between that consensual relationship and the alleged tort.”

The amici states provided their brief respectfully disagreeing with that logic. “There is no basis in law or logic to categorically limit a tribe’s authority merely because ‘the mode of regulation is tort law.’ Cert. Reply Br. 4 n.5.”

Read the full brief here.

RELATED: 4 More Amicus Briefs Supporting Choctaw Indians vs. Dollar General