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126 Yale L.J. F. 1 (2016-2017)

handle is hein.journals/yljfor126 and id is 1 raw text is: THE YALE LAW JOURNAL FORUM APRIL 11, 2016 Contract and (Tribal) Jurisdiction Matthew L.M. Fletcher Consider two commercial contracts. The first requires customers to waive their rights to bring class actions against large businesses in favor of private arbitration. The second requires a reservation leaseholder to adjudicate disputes in tribal court. Both contracts require dispute resolution in fora over which the Supreme Court does not exercise supervisory jurisdiction. Both arbitration and tribal courts are favored by acts of Congress. Both contracts are hotly contested in the Supreme Court. But the arbitration clause contract has been affirmed in a series of recent decisions.' The tribal court contract, by contrast, is pending before the Court in Dollar General Corp. v. Mississippi Band of Choctaw Indians.' Ironically, while the more conservative Justices signed on to the arbitration clause decisions, these same Justices may be Dollar General's best bets for escaping tribal jurisdiction. This short Essay details the key arguments in Dollar General and argues that to undo the tribal contract would unnecessarily and unconstitutionally undo the right to contract for Indian nations. I. CONTRACT AND TRIBAL JURISDICTION Indian nations and non-Indians conduct billions of dollars' worth of business on Indian lands. Indian energy revenue disbursements from the 1. Compare The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (2012), with Indian Tribal Justice Act, 25 U.S.C. §§ 3601-3631 (2012), Indian Tribal Justice Technical and Legal Assistance Act of 2000, 25 U.S.C. §§ 3651-3682 (2012), and Tribal Law and Order Act of 2010, Pub. L. No. 111-211, tit. II, 124 Stat. 2261 (2oo). 2. Cf., e.g., DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015); Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). 3. Dolgencorp, Inc. v. Miss. Band of Choctaw Indians, 746 F-3d 167, 169 (5th Cir. 2014) (affirming tribal court jurisdiction over tribal member tort claim against nonmember arising on tribal lands), rehg en banc denied, 746 F-3d 588 (5th Cir. 2014), cert. granted, 135 S. Ct. 2833 (2015). 1

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