The United States Supreme Court issued a very simple decision just now in the waning days of this term: “PER CURIUM. The Judgment is affirmed by an equally divided Court.” The decision is attached. This means that the decision of the U.S. Court of the Appeals for the Fifth Circuit stands. The Fifth Circuit affirmed the federal district court in Mississippi holding the Tribe had jurisdiction under the first Montana exception. This means the lawsuit can proceed in Mississippi Choctaw courts. The allegedly sexually-molested tribal victim—13 years old at the time—is now about 26 years old. With the death of Justice Scalia on Valentine’s Day, this resulted in the 4 to 4 split allowing the lower court decisions to stand (we believe we knew where Justice Scalia stood on the issue from his prior stances and questions at oral argument). Justice Roberts likely could not muster a consensus on a narrow holding. The Supreme Court dodged taking a stand on the long-standing issue of the inherent powers of Indian tribes over non-Indians percolating since Montana v. United States (1981) and its progeny. The Supreme Court will likely grant certiorari again when the Senate confirms the next Justice on a similar case. For now, this is a “win” for Indian country.
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