4 Issues Tribal Advocates Want The Supreme Court To Avoid

In 2016, the Supreme Court heard four cases that set important precedent for Indian Country. Native American Law Attorney James Meggesto touches on four areas of federal Indian law that attorneys for Native American tribes are leery of the high court tackling, including:

Tribal Jurisdiction over Non-Indians

"I don’t think there would’ve been a controversy in any other context except that it’s tribal court jurisdiction flowing naturally from this consensual relationship [with Dollar General]," Mr. Meggesto said. "You’re still looking at a very precarious situation when cases go to the [Supreme Court]."

"The broader issue is that for justices concerned about impacts on non-Indians, you really need to be more concerned about the cases where the non-Indian litigant can claim they didn’t know they’d have to submit to the authority of the tribe," Mr. Meggesto said.

Sovereign Immunity of Tribal Employees

"The court has pretty much reaffirmed that a tribal government is immune from suit unless it consents, and that being the significant barrier that it is, then it raises the question of whether there are going to be ways around that for potential litigants," Mr. Meggesto said.

National Labor Relations Board Authority over Tribal Casinos

"Tribes aren’t commercial entities, even if they do something that looks commercial," Mr. Meggesto said. "It’s still not for the enrichment of shareholders. It’s a government funding itself with a very limited stream of revenue."

Federal Power and the Indian Child Welfare Act

The Indian Child Welfare Act has been under attack in recent years by some who question the preference given to Native families as well as Tribes themselves when adoptions involve their people. In the time that has followed the Supreme Court’s decision in the Baby Veronica case, which sided with the non-Indian interests, certain groups have felt emboldened to further attack ICWA as an unconstitutional racial classification. All of Indian country continues to watch these cases closely and participate as appropriate.

READ: 4 Issues Tribal Advocates Want The Supreme Court To Avoid (subscription may be required)