A (3:32)

Mary, Kathryn, tell us about the first U.S. supreme Court case that has to wade into this question of the sovereignty of Indian nations.

B (3:43)

I think one of the very first cases is Worcester v. Georgia in 1832. And that's actually a case that my great great grandfather John Ridge worked on for Cherokee Nation. And William Wirt argued it, he was the former U.S. attorney general, argued it on behalf of Cherokee Nation. And this is a point in time when Andrew Jackson was fighting very hard to gain legal legitimacy for his Indian Removal Act. And Cherokee Nation codified and passed a written constitution in the 1820s and formed its own Supreme Court. Cherokee Nation had a Supreme Court 10 years before the State of Georgia had its own Supreme Court. And Georgia was rather alarmed at what was happening at Cherokee Nation because one of the prime arguments for Indian removal was that Indians were racially inferior, uncivilized, and just certainly not capable of living amongst a more civilized group of people, I.e. citizens of Georgia and the United States. So what Georgia started to do was pass several laws basically asserting its own jurisdiction over Cherokee land. And one of the laws they passed said that if you are a white person, a non Cherokee, a non Indian, and you go on the Cherokee lands without the permission of the State of Georgia, the State of Georgia has authority to arrest you and criminally prosecute you and sentence you to up to four years of hard labor. Well, a man by the name of Samuel Wooster, who was a reverend slash missionary, disobeyed that law and lived on Cherokee land and was actually working with my great, great great uncle to translate a lot of different hymns in the church and distribute them across Cherokee Nation. But the point is that the state of Georgia arrested Samuel Wooster and imprisoned him. And Cherokee Nation decided to assist Samuel Wooster in taking this case all the way to the Supreme Court. And what Cherokee Nation asserted was that Georgia had no jurisdiction on Cherokee land. Not only Cherokee Nation had jurisdiction over anyone who came onto Cherokee Nation's land. And the Supreme Court agreed. And in fact, Justice Marshall issued a seminal ruling saying that Cherokee Nation is A sovereign Indian nation and only Cherokee Nation can exercise jurisdiction over Cherokee Nation land. And actually my great, great grandfather walked into Andrew Jackson's office after that and said to him, look here, the Supreme Court has issued this decision. You've got to enforce it because you've got the state of Georgia. Their government is not in compliance with this clear order from the Supreme Court. And the infamous remark that Andrew Jackson gave to that is John Marshall made his decision, let him enforce it.

A (6:14)

And that's line that Justice Breyer uses all the time, right? Mary Catherine? He uses it to describe how the court has no army and has no power. I mean, that really is one of the infamous statements of the powerlessness and toothlessness of a Supreme Court ruling.

B (6:31)

Well, and that's certainly true. I mean, you think about Brown v. Board of Education. You know, if President Eisenhower had not enforced that in Little Rock immediately following the decision, the decision would have been toothless. It wouldn't have meant anything. And so you see how dependent the Supreme Court is on the executive branch actually enforcing it.

A (6:50)

Now, as I understand it, and correct me if I'm wrong, Mary Katherine, we kind of see an ebb and flow over the history of the U.S. supreme Court where at times they're certainly more solicitous of the claims of Indian sovereignty and at times much less so. Right. I mean, there seems to be a progression through history. And if I'm right about this, we're a several decades long period where the court has really been chipping away at the notion of Native American tribal sovereignty. And is it true, the statistic that I just read, that 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.

B (7:36)

That is true. And it's something that I'm still trying to get my head around because if you think about it, when I was growing up, my grandmother used to talk about the Supreme Court as if that was, that was where we went to get justice. Because from her point of view, her great grandfather, that's what he did. Cherokee Nation was fighting to survive. In 1832. The President and Congress were doing everything they could by passing the Indian Removal act, by ignoring the Supreme Court to forcibly remove Indian nations from the southeast to western Mississippi. And the only branch, the United States government that protected the inherent right of Indian nations and Indian people to simply exist was the United States Supreme Court. Well, you fast forward to today and you have the exact flip of that. And you have a Supreme Court like you said, where you know if you look at even beyond 9 out of 10, I think it's over 90% of the cases that Indian nations and Indian people lose in the Supreme Court.

A (8:33)

So, Mary Kathryn, fast forward us across a few centuries and take us to 1978. There's a landmark Supreme Court ruling in Oliphant versus Suquamish Indian Tribe. And tell us about how everything changes with oliphant.

B (8:51)

So in 1978, the Supreme Court issued its decision in Oliphant, which, for a lot of folks working on federal Indian law and American Indians today, is a case that everyone knows because it controls so much in our lives. Unfortunately, in 1978, the Supreme Court said Indian tribes may no longer exercise their inherent criminal jurisdiction over non Indians who come onto tribal lands and commit crimes. And that was the first time in United States history that the Supreme Court had ever said tribes have no jurisdiction in a certain area over non Indians. Up until that point, tribes had exercised criminal jurisdiction over anyone who came onto tribal lands. And I think there's many aspects of Oliphant that are troubling. But one of the aspects that troubles me the most is one of the precedents that the Supreme Court relied on in Olafont is a case called Johnson v. McIntosh from the 1820s. And in Johnson v. McIntosh, the Supreme Court said that Indian nations cannot claim legal title to their own land. And that basically just means that if you're white and you discover Indian land, you can claim legal title to it, and that Indian no longer has, you know, claim to the land. But in this decision in the 1820s, the Supreme Court justified its decision that tribes cannot claim legal title to their land because Indians are, quote, an inferior race. They're heathens and they're savages, and they don't farm or worship Christ. In 1978, Johnson v. Macintosh became the basis for the Supreme Court's decision in Olive Land. And the Supreme Court basically said, look, we decided in the 1820s that tribes can't claim legal title to their land. So if they can't even claim legal title, how can they possibly exercise criminal jurisdiction over non Indians? You know, those are the origins of the contemporary legal framework that tribal nations face today.

A (10:39)

So let me ask you this, just so that everybody, all our listeners and me and you are on the same page. Is it fair to characterize the general rule after the twists and turns you've described, that native tribes are considered the equivalent of sovereign nations with control over their own internal affairs? They're always going to be subject to the authority of Congress and The federal government and certain matters like civil rights, violent crimes, crimes against non members, criminal. Those are kind of still what we're fighting about. That classification of what is it that the tribal courts do and don't have jurisdiction over in those areas?

B (11:22)

Well, that's certainly the modern fight. I think a lot of us would agree that before 1978, it really wasn't a question. Now, what's perhaps interesting or complicated, however you want to see it in the Supreme Court's jurisprudence is that three years later, after all, in 1981, it decided a case called Montana versus United States. And what was at issue there was tribes civil jurisdiction over non Indians. And so I think a lot of people in 1981 thought, well, three years ago the Supreme Court stripped tribes of their criminal jurisdiction over Indians, going to do the same thing for civil. And the court didn't. It actually said tribes still have their inherent civil jurisdiction over non Indians. And we recognize that jurisdiction specifically in two different categories. One is when, you know, non Indians enter into contractual agreements with tribes, I.e. leases, contracts, business arrangements, other sorts of legal documents, slash agreements. And the second area that the Montana court mentioned, one recognized civil jurisdiction over non Indians, was to say, and it's a little bit more, I would say it's much more broad. And you know, the Supreme Court has never really helped to articulate what exactly this second category means. But they said when non Indian conduct on tribal lands threatens the public integrity, health and welfare of the tribe or the economic security of the tribe, then the tribe has civil jurisdiction over the non Indian conduct on tribal land.

A (12:52)

Okay, so Mary Catherine, let's talk about the Dollar General case that was argued in early December. Because so far we've talked about abstract ideas. This is a pretty clear cut factual situation, right? In this case we have a 13 year old boy, he's involved in a youth career skills program and he claims he was sexually assaulted by his manager at a Dollar General store. This is a store that is owned by a huge corporation, but it's located on land belonging to the Mississippi Band of Choctaw Indians. Am I right so far?

B (13:27)

You're, you're absolutely right.

A (13:28)

And so this boy is a member of the Choctaw tribe. The manager is not. This is the classic case you're talking about, right? Does the tribe have jurisdiction over a non Indian man who works at a store that is on tribal land? Help us understand why if this is a crime, right, if this is a sexual assault, why this is not a criminal case, why is this being filed as a civil suit.

B (13:57)

Well, and I think that's a very important backdrop to why civil jurisdiction in this instance is so critical. But because of the 1978 Supreme Court decision in Oliphant, tribes do not. Well, I think most certainly they still have their inherent criminal jurisdiction around Indians. But because of this supreme court case in 78, they can't exercise that inherent criminal jurisdiction. The Supreme Court has precluded them from doing so. So for the tribe, they could not prosecute the non Indian man who allegedly assaulted, you know, the young chiral member who was working at Dollar General. The only entity or government with jurisdiction, according to the Supreme Court in this case 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, even though the majority of the time they are the only sovereign with jurisdiction to do so. And in this instance, the United States attorney declined to prosecute. We don't know exactly why. So in this instance, this is a crime that just simply won't be prosecuted. And so if you think about it, you know, a lot of times in, you know, instances of sexual assault, if there is no criminal prosecution, a lot of survivors will bring a civil claim for, you know, monetary compensation for pain and suffering and to seek some sort of, you know, legal form of justice for the harm they have suffered. So that's what the parents did here. The parents of the child survivor filed a civil tort lawsuit based on very common theories of law that are recognized. And I would guess, I don't know for sure, but almost every jurisdiction in the United States, and that's negligent supervision against Dollar General alleging that Dollar General, you negligently supervise your employee who sexually assaulted our son, and therefore we ask that you pay for his pain and suffering. And so that was the theory of their civil tort lawsuit they brought in tribal courts.

A (15:55)

And this is important, Mary Catherine, that that claim, that civil tort claim has never been adjudicated in any lower court. And that's because Dollar General insists at every level of the trial courts that the authority of the tribal court to hear the suit is in question. Now, Dollar General concedes that the lease they signed to operate their store on tribal land has a clause about being subject to tribal jurisdiction. But their claim at every level of the courts is that this does not mean that they are subject to tort claims being adjudicated, their only contract claims. And this is the fairly narrow question that makes its way all the way to the Supreme Court with every lower court, by the way, saying, no, the chalk does have jurisdiction here. But lo and behold, when this question gets to the US Supreme Court and we get to the oral arguments, suddenly this goes all meta and it turns into a much larger dispute about whether tribal courts should have any civil jurisdiction over non Indians. And probably the moment that got most attention and on this show, you know, all the listeners can say it. Along with me, what would Justice Kennedy do? And Justice Kennedy looks like he's really leaning toward the notion that maybe it's just not fair for Americans who have expectations of constitutional or rights to get hauled into tribal courts. Let's have a listen.

C (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.

D (17:23)

I completely agree with that, Justice Kennedy.

A (17:25)

So let me ask you this, Mary Kathryn. Is that really the basis of what looked at oral argument like the conservatives on the court, including I think Justice Kennedy feeling that they were apt to side with Dollar General because this is just not fair to non tribal citizens to be hauled into tribal court. It violates their constitutional right. Is that the gist of what they're balking at?

B (17:51)

That's my understanding. I mean, listening to Justice Kennedy during the oral argument, he made pretty clear that that is his fundamental concern. And I think he gave every indication that that's going to determine how he votes in this case unless something intervenes between now and when the decision is issued to either further educate him on these issues or somehow change his mind.

A (18:13)

And one of the arguments that I've been hearing is, well, that's because tribal courts are just really heavily weighted against non Native Americans, that it's really fundamentally not a fair process, that in some courts all the jurors have to be Native Americans and the law might not be fair. Is that an accurate assessment of what you face if you're a manager of a Dollar General being brought before a tribal court?

B (18:39)

It's wholly inaccurate. And I think one of the most interesting moments in the argument for me watching was when Justice Breyer kind of leaned forward in his chair and asked the attorney for Dollar General, okay, what's wrong with tribal courts?

C (18:52)

What's wrong with tribal courts?

D (18:54)

What's wrong with the tribal courts?

C (18:55)

It depends.

D (18:56)

First of all, let me say that there are modern tribal judiciaries like this one that deserve genuine respect, that are held, have developed real principles in an attempt to identify law that can be known ex ante and the availability of a neutral forum. There are, however many tribes, everyone Agrees that don't have anything like that. They instead deserve respect.

C (19:19)

Fine. So. So we've seen lots of tribal courts, which I can't distinguish them in the fairness and procedure and so forth from every other court in the country. And maybe there's some where that isn't true. True. Right. So what. What you do is you go and complain we didn't get due process of law if you're in one of the ones that has some unusual thing about it. But if you're in a normal thing, you say it's normal. So what's wrong with saying just that? Like a state court which has terrible procedures, terribly unfair, or a foreign court, you complain you didn't get the proper process. But that has nothing to do with this case.

A (19:52)

All right?

B (19:53)

Or little you can remove. And Dollar General, the attorney could not articulate anything except that the due process clause does not control it does not apply and doesn't dictate anything specifically because the Constitution technically doesn't apply on tribal lands. They're separate sovereigns with their own constitutions, just like France and Italy and every other sovereign nation in the world.

A (20:15)

It seems to me like one of the things that comes up in Dollar General's brief is, well, because this is not even written law. This is. It's tribal custom. It's sort of made up as it goes along. It's not even written down anywhere. Is that a fair characterization of what the law looks like in a tribal court?

B (20:34)

Not at all. And that characterization troubles me because it's very easy to access the Missoula Choctaw Indians law. First of all, their code is online. It's very clear, I would assert, even more clear than some of the laws and codes that you would find in different states across the United States. And, you know, the Mississippi banner, Choctaw Supreme Court publishes its decision, and it really functions just like any other appellate court in the United States. I mean, it creates common law just like our state and federal courts do. And if you want to know how is the court going to come out in a certain way, read its decisions. And I would assert that in some instances, the Mississippi ban, a Choctaw tribal court courts are more predictable than the United States Supreme Court.

A (21:21)

Imagine.

B (21:23)

Yeah, imagine that. Right. So this idea that, you know, Dollar General tries to paint this picture that tribal courts are, you know, it's like voodoo, you know, or it's just, who knows what's going to happen. Some elder is going to climb to the top of the mountain and smoke some tobacco and pray, and then there's going to be a decision which is, you know, what they keep alluding to. And, and, and I, I am concerned that really at the, at the very root of the assumption that tribal courts are not capable of fairly rendering justice is a prejudice that, you know, dates back to colonial times. And I think it's just simply unfounded in modern day America.

A (21:58)

I want to go back briefly to the issue you flagged at the beginning of our conversation about Dollar General, which is just this factual question about whether Dollar consented to be under Choctaw jurisdiction once it leased the land from the tribe and agreed. You know, they agreed in writing to be governed by tribal and federal rules. And there was a moment that may have been, I think, sort of emotionally the most interesting at oral argument where Neil Kadial, who was representing the tribe in this case, said to the court, look, there are consequences of leasing land from a tribe. Let's listen for a minute.

D (22:39)

Forced Dollar General to show up on the tribal lands. Nobody forced Dollar General to sell to these customers. Nobody forced Dollar General to have this youth opportunity program. And yes, like every employer in this country, Justice Kennedy, when you do those things, you open yourselves up to the reasonable liability that follows.

A (22:58)

So, Mary Katherine, let me ask you this. Is that really at the heart of the Choctaw defense here is, look, if you open yourself up to liability, then you subject yourself to the jurisdiction of the court where you are. That's kind of the core of Neil's argument, correct?

B (23:19)

Yes, and I wholly agree with it. I think if Dollar General truly believed that the Mississippi Band of Choctaw Indians tribal court was simply just not capable of fairly rendering justice. And if they truly believed that being subject to tribal court jurisdiction would violate their due process rights, why did they move on to tribal lands, open a store, and sign a contract with the tribe where they agreed to be subject to tribal court jurisdiction? I mean, originally this dispute was about whether or not that contract applied to contractual disputes or tort disputes. But at oral argument, their attorney was saying, any jurisdiction whatsoever over non Indians violates the due process rights. So if that was their sincere belief, why would they sign a contract agreeing to be subject to jurisdiction they believed violated their constitutional rights? And so in this instance, if the Supreme Court accepts Dollar General's arguments, American Indians will become the only group of United States citizens that when they're violated in their own home, in their own lands, they have to travel to a foreign forum just to bring a claim for justice because the perpetrator who assaulted them isn't the same racism and isn't a citizen of the government where they were assaulted. And I just think that that is absurd. And I can't square that with the U.S. constitution. But of course, that wasn't really the discussion at Oral argument.

A (24:36)

Can I pan back a little bit, Mary Kathryn, because I want to give you a chance to talk about something that undergirds this case in a deep way and doesn't get talked about much at Oral Argument in Dollar General. And that is, you know, this unbelievable issue of sexual violence and Indigenous peoples in this case. Now, my research is showing me that between 2005, 2009, the U.S. attorney's office declined to prosecute 40% of assault matters, 67% of sexual abuses. The U.S. department of justice reports in 2007 that Native American and Alaska Native women are two and a half times more likely to be raped or sexually assaulted than the general population of women across this country. That more than a third third of Native women will be raped at some point during their lives, compared to 1 in 5 non Indian women. This is kind of underneath this story there seems to be this long, long littered trail of non prosecuted sexual assault cases and what seems to be a vacuum of law somewhere between court jurisdiction and state and federal jurisdiction where these, these cases just don't get prosecuted. Is that fair?

B (25:51)

Yes, that is an accurate assessment. And that's one of the things that our brief really focuses on and really tries to tell that story and educate the court on this reality. And it is true that, you know, our American Indian women face rates of violence and sexual assault higher than any other population in the United States, and so do our children. And the rates of assault and abuse have really harmful effects on our community. As you can imagine, the PTSD and trauma is just astronomical in some communities, and it affects the ability of our tribal governments to function. When the majority of your population has been assaulted sexually or just by violent abuse, it's near catastrophic for some tribal communities and governments. And unfortunately, the majority of these assaults are perpetrated by non Indians. So to tell tribal governments, you know, sure, you can have jurisdiction, maintain your jurisdiction when the perpetrator is Indian, but no jurisdiction when the perpetrator is non Indian is really telling tribal governments, you're going to be stripped of the inherent authority that you have and that you need to protect your own citizens and curb this crisis. And certainly if you look at the supreme court's decision in 1981 in Montana, that second category of jurisdiction they recognized, which really wasn't discussed or debated in the lower courts below I think because everyone thought this case was squarely about Montana number one. But Montana number two talks about if and when non Indian conduct on tribal land threatens the integrity and essentially what the Supreme Court was saying, you know, the public health and welfare of the tribe, the ability of the tribe to self govern, then there's no question that the tribe has civil jurisdiction over that non Indian conduct. And so the argument we make in our brief, in our amicus brief is that this is that exception to it's Montana number two. Because the epidemic of violence against Native women and children is so incredibly high, the majority of the perpetrators are non Indian. It is critical that tribal governments maintain their civil jurisdiction over non Indians for cases arising out of abuse and sexual assault.

A (27:54)

I'm going to ask you a question that you can completely choose not to answer. But we so often on this show talk about the intersection of race and gender and identity and the justice. Do you think that part of what you're describing, which is, you know, a court that's deeply sensitive to the rights of corporations, particularly right now, as compared to almost completely not willing to address the rights of a 13 year old Choctaw boy, would this case have sounded different if there were just who was a Native American sitting on the US Supreme Court?

B (28:34)

Absolutely, yes. And I think that as humans, we know what we know and what we don't know, we don't know. And no justice on the Supreme Court has ever hired a Native American law clerk. That's never happened. And I think some of them have certainly put out more effort than others to meet tribal leaders, to visit Indian country to learn about a culture and a tribal government that, you know, that they're simply not familiar with in an area of law that they probably didn't study that thoroughly in law school. There are very few law schools that really have significant Indian law programs, and certainly the most elite institutions are not among them. So, you know, a lot of these justices are coming from a background that is devoid of contact with tribal governments and devoid of significant time spent studying the law and the creation of the law and how we got to where we are in 2015.

A (29:30)

I guess it's a good place to end for me to at least note that in the last few months, we saw Justin Trudeau, the new Prime Minister of Canada, appoint the first ever First Nations Attorney General. And that was a remarkable, I think, moment in Canadian history. And I think you're going to see exactly what you're describing here, Mary Kathryn, which is how that starts to inflect on the conversation about Native rights in Canada.

B (29:57)

I certainly hope so. And I think that is definitely something that we should all celebrate and is a wonderful milestone. And from down here, looking up there, I think there are certain things that we look at and think, wow, you know, what do we have to do down here to get that down here?

A (30:15)

Mary Kathryn Nagle is a partner at Pipestem law firm PC. She submitted an Amicus brief in the Dollar General case on behalf of the National Indigenous Women's Resource Center. She's also a nationally acclaimed playwright. And Mary Kathryn, it has really been a pleasure to have you on the show and I promise as myself to do a better job of covering some of these issues going forward. Thank you for joining us on Amicus.

B (30:38)

Thank you so much for having.

A (30:45)

And that's gonna do it for this episode of Amicus. We would love to hear what you thought. You can always email us@amicaslate.com and thank you for all of your email. We love reading it. We do our very best to respond and we really enjoy hearing from you. We also love reading your reviews of Amicus on our itunes page, and those reviews are a great way of helping other folks find out about the show. If you haven't already done so, please consider leaving a few words of your own. Just just search Amicus in the itunes store and click to the Ratings and Reviews tab. Have some extra time on your hands this holiday break. Why not catch up on old Amicus episodes? They are all waiting for you on our show page. And if you're a Slate plus member, you can also find transcripts there. You'll find that@slate.com Amicus thank you as ever to the Virginia foundation for the Humanities where our show is taped. Our producer is Tony Field. Andy Bowers is our executive producer. Amicus is part of the Panoply Network. Check out our entire roster of podcasts@itunes.com Panoply I'm Dahlia Lithwig. We'll be back with you in the new year with another edition of Amicus and we wish you and your family a happy holiday season.