On December 7, 2015, the United States Supreme Court will hear oral arguments in Dollar General v. Mississippi Band of Choctaw Indians. The case involves alleged sexual assaults by the manager of a Dollar General store on Choctaw land against a 13-year-old Choctaw boy, an intern employed at the store.
The Supreme Court agreed to hear the case after Dollar General protested that the Choctaw courts have no jurisdiction over non-Indians. The Choctaw courts, a federal district court and a federal court of appeal all supported Choctaw jurisdiction.
The appeal by Dollar General Corporation exploits fundamental anti-Indian elements of federal Indian law, arguing, "Tribal court jurisdiction over nonmembers is fundamentally incompatible with the United States' 'overriding sovereignty.'"
The Mississippi Band countered Dollar General's petition by arguing that a 1981 Supreme Court decision, Montana v. United States, contains "exceptions" to the "overriding U.S. sovereignty." The Choctaw argue that the exceptions apply in this case.
Unfortunately for the Choctaw—but in keeping with the overall framework of federal Indian law—the Montana ruling started with the premise, "Indian tribes cannot exercise power inconsistent with their diminished status as sovereigns."
The decision reaffirmed the doctrine of "overriding sovereignty" in the way it described the "exceptions" allowing "tribal jurisdiction": "Exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation."
The Dollar General case starts with the question whether Choctaw jurisdiction "is necessary to protect tribal self-government or to control internal relations." But Dollar General goes further. Dollar General attacks Indian jurisdiction at a fundamental level, saying the Montana jurisdictional exceptions for "tribal self-government" and "internal relations" can never apply to non-Indians. Period. Unless the non-Indians specifically agree or Congress "restores" Indian powers over non-Indians.
Dollar General analyzes the Montana "exceptions" by examining the "overriding sovereignty" precedents cited in the case. The Montana precedents start with the 1978 case of Oliphant v. Suquamish Indian Tribe that held Indian courts do not have inherent criminal jurisdiction over non-Indians and cannot have it unless authorized by Congress. From Oliphant, the precedents jump all the way back to the beginning of federal Indian law in Fletcher v. Peck (1810), Johnson v. McIntosh (1823), and Cherokee Nation v. Georgia (1831).
In Fletcher—the "first Indian case to reach this court"—Supreme Court Justice Johnson wrote that the "Indian tribes" have lost any "right of governing every person within their limits except themselves."
In Johnson v. McIntosh, the court held that Indian nation's "rights to complete sovereignty, as independent nations, [are] necessarily diminished." In Cherokee Nation, the court stated that Indian tribes are "completely under the sovereignty and dominion of the United States."
Dollar General's argument thus flows from early 19th century cases that established federal Indian law on the basis of the doctrine of Christian Discovery. As the court stated in Johnson, "The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence."
The Choctaw response to Dollar General, by focusing on the Montana "exceptions," sidesteps a fundamental counterattack on the anti-Indian doctrines underlying Montana. The Choctaw arguments remain bound within the framework of "overriding U.S. sovereignty" and "diminished tribal sovereignty."
Critique of the doctrine of Christian Discovery—the basis of supposed US "sovereignty and dominion" over Indians—appears nowhere in any of the Choctaw filings or the amicus briefs supporting the Choctaw. All these briefs avoid digging into fundamental doctrines, while Dollar General runs away with a wholesale promotion of these same doctrines. Amicus briefs supporting Dollar General also go for the jugular and argue against all Indian jurisdiction over non-Indians.
The State of Mississippi amicus brief supporting the Choctaw comes close to attacking the foundation of the Dollar General argument, saying it "cast[s] doubt on the inherent rights of all interdependent sovereigns." But it does not develop this argument.
The closest reference to the doctrine of Christian Discovery appears in an amicus brief filed by a group of historians and legal scholars in support of the Choctaw. There is no critique of the doctrine. Instead, the brief opens with a statement affirming, "European conquest and the corresponding discovery doctrine terminated Indian tribes' external political sovereignty."
Worse, the scholars' brief affirms an additional restriction on Indian power beyond the doctrine of Christian Discovery, asserting, "The tribes' later incorporation into the territory of the United States…restricted their exercise of separate power to the extent that it 'conflict[ed] with the interests of the [the United States'] overriding sovereignty.'"
Make no mistake: the doctrine of Christian Discovery lies at the foundation of the idea that the US has an "overriding sovereignty" over Indians and that Indian self-government is limited to "internal tribal matters." The notion that the US Congress has power to define Indian government—sometimes referred to as the "plenary power" of Congress—also rests on "Christian Discovery" doctrine.
I venture to suggest that the Choctaw and their amicus allies fail to challenge the fundamental doctrines of federal Indian law out of fear. After all, despite the overall subordination of Indian nations, there remain elements of Indian sovereignty that have not been denied. The US Supreme Court has issued rulings that appear "pro-Indian" in certain cases, like the "exceptions" in the Montana decision.
The thinking likely goes, "Don't rock the boat with a fundamental challenge. Take the safe course and pray for the court to let us alone and leave us to our political program in Congress."
Unfortunately for this line of least resistance, the anti-Indian parties play hardball. They have nothing to lose from pushing the fundamental logic of "diminished sovereignty" to its logical conclusion.
In 2004, Justice Clarence Thomas concurred in the case of United States v. Lara: "I believe that we must examine more critically our tribal sovereignty case law. Both the Court and the dissent…compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty."
Notice that Thomas did not encourage a careful analysis of the assumptions and potential limitations on federal power to modify Indian sovereignty. Such an analysis would have to begin with an acknowledgment of the foundational role of the religious doctrine of Christian Discovery. The analysis would have to come all the way to the present to include the United Nations Declaration on the Rights of Indigenous Peoples and the UN Permanent Forum on Indigenous Issues 2014 "Study on the Impacts of the Doctrine of Discovery on Indigenous Peoples, including mechanisms, processes and instruments of redress."
Justice Thomas wrote, "I do not necessarily agree that the tribes have any residual inherent sovereignty or that Congress is the constitutionally appropriate branch to make adjustments to sovereignty…. [I]t is important to recognize the logical implications of these assumptions."
Thomas went on, "federal Indian law is at odds with itself. … The Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain that the tribes possess anything resembling 'sovereignty.'" He concluded, "Until we begin to analyze these questions honestly and rigorously, the confusion that I have identified will continue to haunt our cases."
Justice Thomas has at least clearly acknowledged the conceptual and doctrinal mess in federal Indian law. It should not be only the anti-Indian parties who take up his challenge to dig to the foundations. Indians need to dig, too, to provide Indigenous views of the fundamental relation between Indians and the United States.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.