Amicus With Dahlia Lithwick | Episode Summary: "Judging Tribal Courts" (December 24, 2015)

Main Theme

This episode of Amicus explores the scope of Native American tribal court jurisdiction, specifically regarding the Supreme Court case Dollar General Corp. v. Mississippi Band of Choctaw Indians—a pivotal legal dispute involving tribal authority to adjudicate civil claims against non-members arising on tribal lands. Host Dahlia Lithwick is joined by Mary Kathryn Nagle, a Cherokee Nation citizen, attorney, and playwright, to unravel the history, constitutional questions, and real-world impact of tribal sovereignty and justice systems, particularly as they intersect with issues of violence against Native peoples.

Detailed Breakdown

1. Context and Framing of the Dollar General Case

• Jurisdiction at Issue: The episode opens with a summary of the legal question: When can tribal courts assert jurisdiction over civil matters involving non-Indians on tribal land? The backdrop is the Dollar General case, where a Choctaw boy alleges sexual assault by a non-Indian manager on Choctaw land ([00:04]).
• Core Legal Framework: Dahlia Lithwick introduces the "Montana" rule from Montana v. United States (1981), which limits tribal authority over non-members except in two scenarios (known as Montana 1 and 2) ([01:05]).
• Why It Matters: The Supreme Court hears multiple cases on Native American rights in the term, underscoring the ongoing diminishment and contestation of tribal sovereignty ([01:36]).

2. History of Tribal Sovereignty in American Law

• Foundations of Sovereignty: Nagle highlights how the U.S. Constitution recognizes tribes as sovereigns, with the U.S. borrowing governmental principles from the Iroquois Confederacy ([02:43]).
• Worcester v. Georgia (1832): Nagle recounts this foundational case—her ancestor participated—where the Supreme Court declared that states had no authority on Cherokee land and only the tribe had jurisdiction ([03:43]).
  • Notable Quote: “Cherokee Nation is a sovereign Indian nation and only Cherokee Nation can exercise jurisdiction over Cherokee Nation land.” – Mary Kathryn Nagle ([05:14])
• Enforcement Challenges: The infamous Andrew Jackson quote is recalled, highlighting the limits of Supreme Court power without executive enforcement ([06:14]).
  • Lithwick: “That really is one of the infamous statements of the powerlessness and toothlessness of a Supreme Court ruling.” ([06:14])

3. The Ebb and Flow of Supreme Court Tribal Law

• Historic Shifts: Both participants discuss the pendulum swing in Supreme Court decisions on tribal sovereignty, noting a modern trend against tribes.
  • Striking Statistic: “The Supreme Court has now ruled against Indian nations and tribes in nine out of the 10 cases they've heard in the last few decades.” – Lithwick ([07:04])
  • Nagle: “...over 90% of the cases that Indian nations and Indian people lose in the Supreme Court.” ([08:03])

4. Oliphant v. Suquamish and the Criminal Jurisdiction Cliff

• Oliphant (1978): The episode details how this decision stripped tribes of criminal jurisdiction over non-Indians, fundamentally changing Native governance ([08:51]).
  • Notable Insight: Nagle criticizes how the Oliphant Court relied on precedent laced with racist reasoning (Johnson v. McIntosh, 1820s), reinforcing discriminatory legal doctrines ([09:32]).
• Montana v. United States (1981): Despite Oliphant, Montana preserved some civil jurisdiction for tribes over non-Indians in two categories: contractual relations and conduct threatening tribal welfare ([11:22]).

5. The Facts and Stakes in Dollar General

• Case Details: The Dollar General case centers on a civil lawsuit seeking damages for alleged negligent supervision, after the U.S. Attorney declined criminal prosecution against the non-Indian manager ([12:52]).
  • Notable Quote: “The only entity or government with jurisdiction... is the federal government. Now, we know that the federal government, the vast majority of the time, does not prosecute sexual assaults committed against American Indians by non-Indians.” – Nagle ([14:09])
• Jurisdictional Dead-End: Without tribal criminal jurisdiction and lacking federal prosecution, civil suits in tribal court may be the only recourse for Native victims ([13:57]).

6. Arguments Before the Supreme Court

• Core Dispute: Dollar General argues that tribal courts cannot hear civil tort claims against non-Indian defendants, even when they’ve contractually agreed to tribal jurisdiction.
• Constitutional Concerns: Justice Kennedy and other conservatives express worries that non-Native defendants are denied constitutional protections in tribal courts ([17:16]).
  • Justice Kennedy (audio): “The Constitution runs to the people. The people have a right to insist on the Constitution even if Mississippi or the federal government doesn't care.” ([17:16])
• Defense of Tribal Courts: Justice Breyer presses Dollar General’s attorney to show what is actually “wrong with tribal courts,” suggesting tribal courts are no less fair or legitimate than state courts ([18:39]-[19:19]).
  • Breyer: “What's wrong with tribal courts?... We've seen lots of tribal courts, which I can't distinguish them in fairness and procedure ... from every other court in the country.” ([19:19])

7. Stereotypes, Prejudices, and the Reality of Tribal Justice

• Countering Stereotypes: Nagle rebuts false portrayals of tribal justice as arbitrary or lawless; Choctaw law is codified, public, and often more predictable than U.S. courts ([20:34]).
  • Notable Quote: “...I would assert that in some instances, the Mississippi Band of Choctaw tribal courts are more predictable than the United States Supreme Court.” – Nagle ([21:14])
• Consent to Jurisdiction: The heart of the Choctaw’s argument is that Dollar General knowingly accepted tribal jurisdiction when leasing land and operating programs on it ([22:39], [23:19]).

8. Broader Social Context: Sexual Violence and Jurisdictional Gaps

• Violence Against Native Women: Lithwick and Nagle highlight staggering statistics about sexual assault rates among Native women, and high federal declination rates for prosecution ([24:36], [25:51]).
  • Notable Quote: “Native American and Alaska Native women are two and a half times more likely to be raped or sexually assaulted than the general population ... more than a third of Native women will be raped at some point during their lives...” – Dahlia Lithwick ([25:11])
  • Nagle: “...The majority of these assaults are perpetrated by non-Indians ... it is critical that tribal governments maintain their civil jurisdiction over non-Indians for cases arising out of abuse and sexual assault.” ([27:27])

9. Supreme Court Blind Spots and Diversity

• Lack of Representation: Nagle points out that no Native American has served as a Supreme Court clerk, and few justices have substantive exposure to tribal law, leaving a critical gap in perspective ([28:34]).
  • Notable Quote: “No justice on the Supreme Court has ever hired a Native American law clerk. That's never happened.” – Nagle ([28:39])
• Comparison to Canada: Lithwick notes that Canada’s recent appointment of a First Nations Attorney General stands in contrast to the U.S. judiciary’s lack of Indigenous representation ([29:30]).

Memorable Quotes & Segment Timestamps

| Timestamp | Quote | Speaker | |------------|-----------------------------------------------------------------------------------------------------------|-----------------------------------| | 05:14 | “Cherokee Nation is a sovereign Indian nation and only Cherokee Nation can exercise jurisdiction over Cherokee Nation land.” | Mary Kathryn Nagle | | 07:04 | “The Supreme Court has now ruled against Indian nations and tribes in nine out of the 10 cases they've heard in the last few decades.” | Dahlia Lithwick | | 09:32 | “In Johnson v. McIntosh... the Supreme Court justified its decision ... because Indians are, quote, an inferior race.” | Mary Kathryn Nagle | | 14:09 | “The only entity or government with jurisdiction... is the federal government. ... the vast majority of the time, does not prosecute sexual assaults committed against American Indians by non-Indians.” | Mary Kathryn Nagle | | 17:16 | “The Constitution runs to the people. The people have a right to insist on the Constitution even if Mississippi or the federal government doesn't care.” | Justice Kennedy (quoted by Lithwick)| | 19:19 | “We've seen lots of tribal courts, which I can't distinguish them in the fairness and procedure ... from every other court in the country.” | Justice Breyer | | 21:14 | “I would assert that in some instances, the Mississippi Band of Choctaw tribal courts are more predictable than the United States Supreme Court.” | Mary Kathryn Nagle | | 25:11 | “Native American and Alaska Native women are two and a half times more likely to be raped or sexually assaulted than the general population ... more than a third of Native women will be raped at some point during their lives...” | Dahlia Lithwick | | 27:27 | “...it is critical that tribal governments maintain their civil jurisdiction over non-Indians for cases arising out of abuse and sexual assault.” | Mary Kathryn Nagle | | 28:39 | “No justice on the Supreme Court has ever hired a Native American law clerk. That's never happened.” | Mary Kathryn Nagle |

Key Takeaways

• Tribal courts' authority over non-Indians is rooted in both ancient legal principles and modern contractual arrangements, but is subject to Supreme Court reinterpretation and often reduced in recent decades.
• Federal declinations to prosecute crimes on tribal lands create justice gaps, making civil jurisdiction in tribal courts a crucial recourse for Native victims—especially in cases of sexual violence.
• Arguments against tribal court jurisdiction frequently rely on stereotypes and misunderstandings, which are refuted by the transparent and codified nature of many tribal legal systems.
• The lack of Native representation in the judiciary compounds misunderstanding and may impact case outcomes, echoing broader diversity and equity issues in American law.
• The Dollar General case exemplifies the lived consequences of legal doctrines for tribal justice, sovereignty, and Native communities' safety and self-determination.

This episode delivers a rich, accessible primer on tribal sovereignty, jurisdiction, and the ongoing battle for Native justice at the highest levels of American law, blending legal insight with lived experience and urgent contemporary context.