Will Inherent Tribal Court Authority Over Non-Members Survive Dollar General?

Patrick Sullivan
April 26, 2017

State, county and city governments are responding to the opiate crisis by suing the national manufacturers and distributors of these dangerous drugs. For the first time, an Indian tribe has sued prescription drug wholesalers and retailers in tribal court for damages related to addiction. On April 20, 2017, the Cherokee Nation filed a complaint in the District Court of the Cherokee Nation against the drug wholesalers and retailers that operate on the Cherokee reservation in Oklahoma. The lawsuit names national pharmaceutical distributors including McKesson, Wal-Mart, Walgreens and CVS and again raises the question of tribal court tort jurisdiction over non-Indians conducting business on Indian reservations.

That issue was recently addressed by an equally divided United States Supreme Court in Dollar General Corporation v. Mississippi Band of Choctaw Indians. The stalemate decision let stand a Fifth Circuit ruling upholding a tribal court’s jurisdiction over a national retailer. Now, the same issue is once again very much in play in Cherokee Nation of Oklahoma v. McKesson Corp. et al. With a full panel, Neil Gorsuch will be the tiebreaker if this dispute reaches the Court.
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Drones on the Reservation

What do drones – also known as UAVs (Unmanned Aerial Vehicles) − have to do with Indian reservations? Quite a bit. The Warm Springs Indian Reservation in Central Oregon is now home to the Warm Springs UAS Test Range.

The Warm Springs Indian Reservation spans 1,000 miles of Central Oregon.

In February 2012, President Obama signed the FAA Modernization and Reform Act of 2012, P.L. 112-95, 126 Stat. 11, into law.  The Act required federal agencies including the FAA Part to “safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.”   Specifically, the Act requires that the FAA “establish a program to integrate unmanned aircraft systems into the national airspace system at 6 test ranges.”

The FAA subsequently solicited proposals from public entities, including state and local governments and eligible universities. 25 entities submitted proposals from 24 states, and the FAA announced the six winning applicants in December 2013.

The result of a winning proposal by a consortium of three states – Oregon, Alaska and Hawaii, – the “Pan-Pacific Unmanned Aerial System Test Range Complex”  opened for business in December 2013 on the  Confederated Tribes of Warm Springs Reservation.  The Complex also includes other Oregon sites in Tillamook on the Oregon coast, and in Pendleton at the Eastern Oregon Regional Airport.
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A new Indian law firm for a new year.

There is now no question that tribal sovereignty benefits not only tribe members but also brings unique economic development opportunities to investors and local communities.

Tribal economic development brings billions of dollars to the rural United States. Indian gaming now equals commercial gaming in revenue, pumping billions of dollars to local economies and creating jobs. Native owned businesses hire tribe members and non-Indians alike.

Indian tribes manage tribal lands, protect and steward tribal resources, and serve as a strong voice for the protection of the natural environment.

But Indian tribes face an uncertain path in a new political climate. Tribes that have succeeded in building political and economic sovereignty are now in a position of defending the gains they have made.  In short, tribal leaders must now work to prevent the pendulum of Indian policy from swinging away from self-determination and towards abrogation of tribal sovereignty.

I started The Law Office of Patrick Sullivan to help tribal leadership craft proactive strategies to strengthen tribal communities, build tribal businesses, and defend hard-won victories. I also work with non-tribal entities that want to establish great relationships in Indian country. I could not have gotten to this stage without the help of my clients and my many teachers and colleagues and I am grateful for them all.

Please reach out to discuss how I can help.

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