What Then Remains of the Sovereignty of the Indians? The Significance of Social Closure and Ambivalence in Dollar General v. Mississippi Choctaw

The United States was erected on the lands of Native peoples. This fact has bedeviled American law courts since the nation’s founding. Native peoples have never abandoned their desire to exercise sovereign authority over those lands and the United States has never recognized the full extent of the tribes’ desires. For two centuries, the resolution of that conflict has been the American nation’s acceptance of Indian communities as distinctive, federally protected “domestic dependent nations.” Despite treaties and congressional action establishing this important political relationship, tribal nations face persistent challenges in administering internal affairs, particularly when non-Indians and tribal courts are involved. This article argues that contemporary federal Indian law questions the quality and neutrality of tribal courts in order to foreclose upon competing economic and legal interests in Indian land. The historic struggle to maintain legal authority is apparent in the treatment of tribal civil adjudicatory authority in Dollar General Corporation v. Mississippi Band of Choctaw Indians and key moments in federal Indian policy. The theoretical framework of social closure provides a critical lens by which to examine persistent Indian exclusion and competition over profitable resources. Paired with the notion of colonial ambivalence, which articulates the shifting logics of settler states to accept or reject indigenous sovereignty, the exclusionary language in Dollar General reveals the nation’s firm investment in limiting access to resources at the expense of tribal self-determination