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

handle is hein.journals/yljfor126 and id is 1 raw text is: 

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


    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
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


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