Via TurtleTalk: Supreme Court Oral Argument Transcript in Dollar General

Transcript available here.

Here are some interesting passages:

Justice Sotamayor (questioning counsel for Dollar General at p 10):

States appoint judges. Sometimes they’re elected, but often they’re appointed. We don’t think it lacks being a neutral forum because the State can sue a citizen there. We think of it as neutral because the judges are neutral.

You’re just assuming that these judges are not neutral.

Counsel for Dollar general (asserting that tribal courts are not an inherent feature of sovereign tribal governments at p 16):

The United States obviously did not regard the Tribes’ judiciary as something that is purely a part of their government, because time and again, it has micromanaged them.

And, Justice Breyer, I do want to point out another example of that, and that is the Violence Against Women Act. There, we see the right way of doing this, and that Congress has developed systems that say if this tribal judiciary is a good one which affords due process, then it has jurisdiction over cases.

And we think that’s the right approach here. Congress has the institutional capacity to develop rules like the one you were talking about. It’s a much more ­­[…]

Justice Breyer (trying to frame Dollar General’s argument at p 18):

The nontribal member goes to the tribal land and signs an agreement that says tribal law would apply, and then commits a tort on the tribal lands, and even under those circumstances, and even if the court is functioning well, the tribal court cannot take jurisdiction over his claim. That’s your position. And then to that I say, if I haven’t got it already, why not?


Justice Kagan (characterizing Dollar General’s argument at p 23):

It’s a bit of an odd argument, isn’t it, Mr. Goldstein, that there’s less of a sovereign interest in protecting your own citizens than in enforcing your licensing laws?


Exchange between Justice Kennedy and Dollar General regarding the scope of Congress’s power to delegate jurisdiction to Indian tribes (p 25):

JUSTICE KENNEDY: My ­­ my hypothetical is that the Congress gives Indian powers ­­ Indian tribes complete powers, both civil and criminal, over all persons on tribal Reservations. No Federal review, nothing.

Mr. GOLDSTEIN: That’s unconstitutional because Congress is subject to the Constitution. It would violate the Supremacy Clause; it would violate Article III, which contemplate, sorry…

Neal Katyal, counsel to the Mississippi Band of Choctaw pushing back on Justice Scalia’s suggestion that the Supreme Court’s prior statements on tribal court jurisdiction are merely dicta (p 31):

So yes, I understand that they are dicta, but it is dicta of the most persuasive sort. It is the unbroken rule of this Court, frankly, that in all of these cases, this Court has said there is presumptively jurisdiction.

And indeed, the exhaustion cases would make no sense otherwise because twice this Court said, in tort cases, in Iowa Mutual and National Farmers Union, this Court said you’ve got to go to tribal court and exhaust your remedies.

And Justice Scalia, if the rule in those cases was, hey, tribal courts don’t have jurisdiction, they would have done what you did in your opinion in Hicks, because at page 369 you said, quote, “Since it’s clear tribal courts lack jurisdiction over State officials, adherence to the tribal exhaustion requirement would serve no purpose.

Chief Justice Roberts, on whether there can be due process with all-Indian juries in tribal courts (p 42):

If we’re ­­ if we’re going to evaluate the due process concerns on a case­by­case basis, as a general matter, it ­­ does it violate due process for a nonmember to be subjected to a jury verdict where the jury consists solely of tribal members?

Chief Justice Roberts, again, on the same point (pp 43-44):

Kind of think that ­­ you think the concerns are on the same level: Forcing somebody in a State court to be subjected ­­a New Yorker to be subject to jurisdiction where everyone’s from Massachusetts because it’s Massachusetts court. You think that’s the same as subjecting a nonmember accused of a terrible assault on an Indian to jurisdiction before a jury consisting solely of members of the Tribe.

The Chief Justice, one more time, on the same point when questioning the United States’ attorney Ed Kneedler (p 56):

Is it consistent with your concept of due process, as a general matter, to have a nonmember tried by a jury consisting solely of tribal members?

Justice Scalia, questioning Ed Kneedler on the scope of tribal regulatory jurisdiction in relation to tribal court jurisdiction over tort claims (p 58):

And so I could say that person was subject to tribal regulatory jurisdiction, which can be interpreted, narrowly, to mean the Tribe can regulate that person’s conduct. If he violates that conduct, the Tribe, as a tribe, can fine him. It doesn’t necessarily mean that the regulatory jurisdiction includes the ­­ the power to impose tort law and adjudicate tort law.

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