Textualism and the Indian Canons of Statutory Construction

Alex Tallchief Skibine* August, 2022

Abstract

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian nations, courts are supposed to apply any of five specific canons of construction relating to Indian Affairs. Through examining the modern line of Supreme Court cases involving statutory or treaty interpretation relating to Indian nations, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the Court almost never applies. One, the tribal sovereignty canon, requires clear intent to interfere with tribal sovereign rights; the other, the Indian ambiguity canon, requires statutes to be construed liberally with ambiguities resolved to the benefit of Indians. After reviewing the possible reasons why textualist jurists might be opposed to the use of substantive canons, this Article makes two arguments to remedy any reluctance to using the tribal sovereignty and Indian ambiguity canons. First, these canons have constitutional roots, and as such, even textualists on the Court should not be reluctant to use them. Second, the more established canon concerning abrogation of tribal sovereign immunity should also extend to statutes interfering with tribal sovereign rights. There are no normative reasons to treat abrogation of sovereign immunity differently than other statutory interference with tribal sovereignty.

Introduction

When interpreting treaties signed between the United States and Indian nations or statutes enacted for the regulation or benefit of Indians and Indian nations,¹ courts are supposed to apply the Indian canons of treaty and statutory construction.² There are arguably five such canons, which this Article will refer to as the canons of treaty interpretation, treaty abrogation, tribal sovereign immunity, tribal sovereignty, and Indian ambiguity. First, there is the treaty interpretation canon: when a court interprets an Indian treaty, the treaty “must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of the Indians . . . and the words of a treaty must be construed in the sense in which they would naturally be understood by the Indians.”³ The second canon can be described as the treaty abrogation canon: when the issue is whether a subsequent Act of Congress abrogated or modified an Indian treaty, the test is whether there is clear evidence that Congress actually considered the treaty right and decided to abrogate that right.⁴ This canon could be considered a quasi-clear statement rule. Clear statement rules require specific language announcing congressional intent to interfere with a valued norm, such as abrogating the sovereign immunity of the states.⁵ I describe the treaty abrogation rule as “quasi” because the search for “actual consideration” can be derived not only from the text of the statute but also from its legislative history, as was the case in United States v. Dion.⁶

Third, there is what this Article refers to as the tribal sovereign immunity canon, since it has basically been used by the Court only for congressional abrogation of tribal sovereign immunity from suit.⁷ That test was first applied in Santa Clara Pueblo v. Martinez, where the Court stated: “without congressional authorization, the Indian Nations are exempt from suit. It is settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’”⁸ When it comes to interfering with tribal self-government outside of abrogating sovereign immunity, such as allowing suit against tribal officials, the Santa Clara Court phrased the test differently, refusing to allow such suits “unless and until Congress makes clear its intention to permit the additional intrusion on tribal sovereignty that adjudication of such actions in a federal forum would represent.”⁹ So, the abrogation of sovereign immunity requires “unequivocal expression of congressional intent” while the abrogation of tribal sovereignty requires only “clear” indication of congressional intent. This Article will refer to this latter canon as the tribal sovereignty canon.

Finally, there is what can be called the Indian ambiguity canon, applicable to all statutes enacted for the benefit or regulation of Indians.¹⁰ As the Court put it, “[w]hen we are faced with two possible constructions, our choice between them must be dictated by a principle deeply rooted in this Court’s Indian jurisprudence: ‘[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.’”¹¹ Note that this last canon has two components: first, that the statute must be “liberally construed,”¹² and second, that ambiguous provisions are to be interpreted for the benefit of the Indians.

While the Court is inclined to apply the first two treaty-related cannons,¹³ as well as the tribal sovereign immunity canon,¹⁴ it has rarely applied, or even discussed, the canons of tribal sovereignty and Indian ambiguity. Thus, in the last thirty-five years (since 1987), the Court has decided at least twenty-six cases involving Federal Indian law where the holding depended exclusively on statutory or treaty interpretation.¹⁵ Yet, in that time period, only four cases discussed the Indian ambiguity canon, and only one invoked it in its holding.¹⁶ Professor Matthew Fletcher recently spoke on this state of affairs:

The reality is that when it comes to interpreting Indian affairs statutes, the judiciary too often treats these canons as voluntary. And if a court relies on these canons, they often do so in support of an outcome favoring tribal interests reached on other grounds, sort of like frosting on top.¹⁷

This Article analyzes some of these twenty-six Supreme Court cases to understand the reasons for the Court’s reluctance to invoke the Indian ambiguity canon, including the interconnection between the canon and textualism—the ascendant interpretive methodology.¹⁸ There is no question that one of the reasons for the Court’s failure to invoke the Indian ambiguity canon is that it can be easily avoided by finding no ambiguity in the statute.¹⁹ Thus, it may be that judges who are faithful to textualism, which focuses on the statutory text and the plain meaning of the words, are less likely to find ambiguities in statutes.²⁰

Some scholars have correctly noted that there is no current test for determining whether an ambiguity exists.²¹ The problem created by this lack of agreement on what constitutes an ambiguity could have been partially attenuated if the courts had more scrupulously applied the “liberally construed” requirement or the tribal sovereignty canon. But the Court basically ignores these two rules of construction. This Article argues that although there may be a pragmatic reason for treating sovereign immunity differently than other interferences with tribal sovereignty, in that “sovereign immunity” is a discrete and well-defined area while tribal sovereignty is not, there are no normative reasons for doing so. In other words, congressional intent to interfere with tribal sovereignty should also be, in the words of the Santa Clara Court, “unequivocally expressed.” The difference between “clear indication” and “unequivocal expression” may sound like a matter of semantics, but the fact remains that the tribal sovereign immunity canon is being applied while the tribal sovereignty canon is not.²² If there is a difference, it may be that “unequivocal expression” of congressional intent has more of a textualist bent than “clear indication”—theoretically, looking for “unequivocal expression” will make judges focus on the text of the statute, and not on extratextual material, to find such clear indication of congressional intent to abrogate tribal sovereign rights.

Part I begins by explaining why the Indian canons are normative canons that should be applied in the interpretation of statutes enacted for the benefit or regulation of Indians. Next, this Article surveys Supreme Court cases decided on statutory or treaty interpretation grounds since 1987. After arguing that the reservation disestablishment cases should be considered treaty abrogation cases, this Part concludes by identifying some of the cases that should have been decided differently had the Court applied the Indian ambiguity canon.

In Part II, this Article delves into the textualist perspective on applying substantive canons. This theme was more recently taken up by Justice Kavanaugh in an article written before he joined the Court.²³ Justice Kavanaugh argued that judges should, as much as possible, shy away from making determinations that statutes are ambiguous because a finding of ambiguity allows judges to “resort to a variety of canons of construction,” which Kavanaugh finds troubling.²⁴ Coincidentally, the idea that textualist judges should be reluctant to use “substantive” or “normative” canons was also considered by another future Supreme Court Justice, Amy Coney Barrett. In a 2010 article, she explained that textualist judges are reluctant to use these substantive canons because they conflict with the role of judges as “faithful agents” of the legislature by reflecting extratextual norms which the drafters of the legislation were not likely considering.²⁵ This Article explains why, when it comes to the Indian canons, such reluctance is misplaced. I argue that the Indian canons have constitutional roots, and that their legitimacy is similar to that of federalist canons.²⁶

Finally, I present an argument that the test applicable to abrogation of tribal sovereign immunity should be applicable to any statute abrogating tribal sovereign rights. This Article concludes by discussing the limits of the Indian canons’ applicability.

I. The Indian Canons of Statutory Construction

A. Background Principles and Normative Reasons for the Indian Canons

Whether one is a textualist looking for the meaning of a text or a purposivist/intentionalist looking for the purpose or intent behind Congress’s words,²⁷ courts use canons of statutory construction to resolve ambiguities in statutory text.²⁸ Substantive or normative canons create background norms to help the interpreter decide the meaning that the words of a statute should be given.²⁹ As Professor Frickey noted, normative canons “go outside the document and create an exception to the basic interpretive approach for cases that implicate certain important values. In most instances, these policy-based canons operate either as tiebreakers at the end of the basic interpretive analysis or as rebuttable presumptions at the outset of the interpretive process.”³⁰

The first Indian canons were developed in connection with interpreting treaties between the United States and Indian nations.³¹ According to Professor Frickey, Justice Marshall in Worcester v. Georgia grounded the Court’s interpretation of the treaty with the Cherokees in the value of structural sovereignty, viewing the Cherokee treaties as organic documents integrating Cherokee Nation into the United States as domestic but still sovereign nations.³² The major issue in Worcester was the validity of Georgia’s claim that it could assert jurisdiction over Cherokee territory given that the Cherokee Nation had, in treaties with the United States, ceded all of its sovereignty.³³ The Court refused to allow Georgia jurisdiction, holding that the Cherokee Nation was still a sovereign Indian Nation.³⁴ From that original case, the Court eventually adopted the rule that treaty terms had to be construed the way the Indians would have naturally understood them at the time of the signing.³⁵ As recently stated by the Court, Indian treaties “must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of the Indians, and the words of a treaty must be construed in the sense in which they would naturally be understood by the Indians.”³⁶

Although Worcester involved the interpretation of a treaty, the Court in Choate v. Trapp extended Worcester’s reasoning to the interpretation of statutes enacted specifically for the benefit of Indians.³⁷ The issue in Choate—whether the State of Oklahoma could tax Indian lands—required resolving ambiguity that derived from two apparently conflicting statutes.³⁸ Acknowledging the “general rule that tax exemptions are to be strictly construed,” the Court nevertheless ruled in favor of the Indians because

in the Government’s dealings with the Indians the rule is exactly the contrary. The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation.³⁹

The Choate Court claimed that “[t]his rule of construction has been recognized, without exception, for more than a hundred years,” although it did not provide any citations for this claim.⁴⁰ While Choate and other early cases relied on similarly outdated “weak and defenseless” wording to justify the canon, the Court eventually used the same kind of reasoning initially applied to treaty abrogation to make sure that statutes did not unintentionally abrogate tribal rights in non-treaty interpretation contexts.⁴¹

In Montana v. Blackfeet Tribe of Indians, which concerned whether the State could tax tribal royalties from oil and gas leases under the Indian Mineral Leasing Act of 1938, the State invoked the presumption against implied repeals to argue that its taxation power remained intact.⁴² The Court disagreed, finding:

The State fails to appreciate, however, that the standard principles of statutory construction do not have their usual force in cases involving Indian law. As we said earlier this Term, “[t]he canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians.”⁴³

A few years later, in County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, the Court followed the Blackfeet canon, finding: “When we are faced with two possible constructions, our choice between them must be dictated by a principle deeply rooted in this Court’s Indian jurisprudence: ‘[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.’”⁴⁴

In an article written before she joined the Supreme Court, Justice Coney Barrett mentioned that although the Indian ambiguity canon started with interpreting Indian treaties, it migrated to interpreting statutes without any real explanation.⁴⁵ She noted that only one lower court at the time had stated that the treaty rule became applicable to statutes because Congress stopped making treaties with Indian tribes and instead started regulating them through statutes.⁴⁶ Although she cited to Professor Frickey’s scholarship in this area, Justice Coney Barrett attributed the origin of the Indian ambiguity canon of treaty interpretation to contract law principles under which the benefit of the doubt is given to the less sophisticated party.⁴⁷ In effect, Professor Frickey reached the opposite conclusion, stating that “[a] theory of sovereignty, then, rather than contract, better explains Chief Justice Marshall’s interpretation in Worcester.”⁴⁸ Although sovereignty may better explain Marshall’s theory, contract interpretation theory can also provide theoretical justifications for the Indian ambiguity canon.⁴⁹

This Article endorses Professor Frickey’s argument that Marshall’s treaty interpretation methodology was similar to constitutional interpretation because Chief Justice Marshall considered the treaties as documents incorporating Indian tribes into the U.S. political system.⁵⁰ The objection could be raised, however, that while treaties are documents of incorporation, statutes are not, so the rules of interpretation applying to treaties should not apply to Indian statutes. Yet, as Justice O’Connor noted:

“rooted in the unique trust relationship between the United States and the Indians,” the Indian canon presumes congressional intent to assist its wards to overcome the disadvantages our country has placed upon them. Consistent with this purpose, the Indian canon applies to statutes as well as treaties: The form of the enactment does not change the presumption.⁵¹

The Indian ambiguity canon of statutory construction can be considered a normative canon because it is “rooted in the unique trust relationship between the United States and the Indians.”⁵² This canon recognizes that the trust relationship constitutes a background norm that should be respected when interpreting statutes enacted pursuant to Congress’s role as trustee for the tribes. Most scholars agree that the first official indication of the existence of a trust relationship with Indian nations was Chief Justice Marshall’s famous description of the federal-tribal relationship in Cherokee Nation v. Georgia as being akin to that of a guardian to its ward.⁵³

Thus, if the purpose of using a canon is to determine what Congress meant when it used particular words or phrasing in a statute, the Indian ambiguity canon fulfills this function by presuming that when Congress enacts statutes for the benefit of Indians, it acts pursuant to the trust relationship and would not want a statute to be construed to the detriment of Indian tribes. In that manner, applying the Indian ambiguity canon is necessary to the Court’s role as a “faithful agent” of Congress.⁵⁴ Thus, when Congress is acting pursuant to the trust relationship in enacting Indian-related legislation, it would naturally expect the statute to be interpreted to the benefit of the Indians.

Scholars have proposed other arguments concerning the normativity of the Indian canons. Professor Richard Collins, for instance, justified the Indian statutory canons on a theory of democratic deficit, arguing:

Democratic deficit is a strong reason for courts to insist that Congress spell out legislative impairments of Indian rights . . . during most of our history, Congress acted with virtually no Indian influence and often in response to Indians’ powerful enemies. Thus, when courts interpret statutes adopted under those conditions, the democratic deficit ought to support a strong statutory canon.⁵⁵

Professor David Williams, on the other hand, tied statutory interpretation in Indian cases to the fact that Indian tribes never consented to come under the plenary power of Congress, stating “[e]ven if the courts accept congressional power as a brute fact imposed on them by the Constitution or institutional necessity, they must still seek a reason justifying that power in order to provide themselves with a lodestar to guide interpretation.”⁵⁶ Although many scholars view the trust doctrine as beneficial to Indian nations,⁵⁷ it has had a complicated and mixed history. Although the doctrine can be a source of protection and duties owed by the United States to Indian nations, it was also, at some point in time, viewed as a source of federal power allowing the United States to exercise plenary governmental control over Indian tribes.⁵⁸

As explained in Part II, this Article takes the position that the Indian canons of construction are constitutionally based because the trust relationship has constitutional roots.

B. The Court’s Modern Treaty and Statutory Interpretation Cases

1. The Treaty Cases

There are two types of treaty cases: treaty interpretation cases and treaty abrogation cases.⁵⁹ Treaty abrogation cases are controlled by the test enunciated in United States v. Dion.⁶⁰ The issue in Dion was whether an Act of Congress, the Eagle Protection Act, abrogated the treaty hunting rights of a Sioux tribe on its reservation.⁶¹ In holding that the treaty right was abrogated, the Court articulated a test requiring clear evidence that Congress actually considered the treaty right in question and opted to abrogate or modify it.⁶² In Dion, such clear evidence was “strongly suggested on the face of the Eagle Protection Act” since there was a provision allowing Indians to take eagles for religious purposes pursuant to a federally issued permit.⁶³ Although the Court relied on legislative history only to support its textual interpretation, it unfortunately prefaced its clear evidence of congressional consideration test by announcing in dicta that “where the evidence of congressional intent to abrogate is sufficiently compelling, the weight of authority indicates that such an intent can also be found by a reviewing court from clear and reliable evidence in the legislative history of a statute.”⁶⁴

Tribal interests won four treaty cases decided in the last thirty years, all in 5-4 decisions.⁶⁵ The tribal position lost one case, South Dakota v. Bourland, a treaty abrogation case involving a tribal attempt to control non-members hunting and fishing within the exterior boundaries of the reservation.⁶⁶ The issue in Bourland was whether the Cheyenne River Sioux Tribe preserved its treaty right to exclude non-members on land that was within the reservation but taken by the federal government for a dam and reservoir project.⁶⁷ In an opinion authored by Justice Thomas, the Court held that the Tribe’s treaty right to exclude non-members from the reservation, implicit in its rights of “absolute and undisturbed use and occupation” of such lands, as well as its derivative right to regulate non-members while on these lands, was implicitly abrogated when the United States took the lands from the Tribe, assumed control over such lands, and opened them for general public use.⁶⁸

Justice Thomas insisted that his analysis was not in conflict with Dion.⁶⁹ Thomas concluded, however, that he could only explain the relevant provisions of the Cheyenne River Act and the Flood Control Act as “indications that Congress sought to divest the Tribe of its right to ‘absolute use and occupation.’”⁷⁰ That conclusion was strongly objected to by the dissent, which stated that the majority “points not even to a scrap of evidence that Congress actually considered the possibility that by taking the land in question it would deprive the Tribe of its authority to regulate non-Indian hunting and fishing on that land.”⁷¹ The dissent also remarked that although the Court acknowledged the application of cases like Dion to the instant case, “the majority adopts precisely the sort of reasoning-by-implication that those cases reject.”⁷²

In Minnesota v. Mille Lacs Band of Chippewa, one important issue was whether certain hunting, fishing, and gathering rights, guaranteed to the Chippewas in an 1837 treaty, were terminated by an 1850 Executive Order, by a subsequent treaty signed with the Tribe in 1855, or by Minnesota entering the Union in 1858.⁷³ The Court ruled that none of these actions abrogated or terminated the Tribe’s treaty rights.⁷⁴ The Court followed Dion and held there was no “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.”⁷⁵

Herrera v. Wyoming was both a treaty abrogation and a treaty interpretation case.⁷⁶ Concerning treaty abrogation, the major issue was whether Congress intended to end the Crow Tribe’s hunting rights, guaranteed in a 1868 Treaty, by enacting the Wyoming Statehood Act.⁷⁷ The treaty had a clause authorizing tribal members to continue hunting “on the unoccupied lands of the United States so long as game may be found thereon . . . and peace subsists . . . on the borders of the hunting districts.”⁷⁸ The Court noted that the Wyoming Statehood Act made no mention of Indian treaty rights and provided no clue that Congress considered the Tribe’s rights and decided to abrogate them when enacting the law.⁷⁹ As the Court put it, “[t]here simply is no evidence that Congress intended to abrogate the 1868 Treaty right through the Wyoming Statehood Act, much less the ‘clear evidence’ this Court’s precedent requires.”⁸⁰ In other words, the Court again performed a straightforward application of the Dion test.

On the treaty interpretation matter, the issue was whether the Crow Tribe, at the time of signing the treaty, understood the 1868 treaty to expire at statehood.⁸¹ Taking the position that a treaty is a contract between two sovereign nations, the Court stated that Indian treaties “‘must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor of the Indians’⁸² . . . and the words of a treaty must be construed ‘in the sense in which they would naturally be understood by the Indians.’”⁸³ The Court concluded that there was nothing in the text of the 1868 Treaty with the Crow Tribe that even suggested that the parties intended the hunting right to expire at statehood.⁸⁴

Washington State Department of Licensing v. Cougar Den was another 5-4 decision, this one involving a matter of treaty interpretation.⁸⁵ The issue was whether the State could impose on Cougar Den, a Yakama tribal entity, a fuel tax levied and imposed upon motor vehicle fuel licensees for each gallon of fuel that the licensee brings into the State.⁸⁶ Cougar Den argued that the state fuel tax was preempted by a clause in the Yakama Treaty of 1855 that reserved for tribal members “the right, in common with citizens of the United States, to travel upon all public highways.”⁸⁷

In upholding Cougar Den’s claim, Justice Gorsuch, in concurrence, followed the Indian canons of treaty interpretation, stating “[w]hen we’re dealing with a tribal treaty, too, we must ‘give effect to the terms as the Indians themselves would have understood them.’”⁸⁸ Gorsuch then gave his reasons for applying the canon, noting that it was the United States who wrote this “contract,” and any ambiguities in contracts are usually construed against the drafter.⁸⁹

There was one unusual case decided in 2001 that fell in between treaty and statutory interpretation. The issue in Idaho v. United States was whether the United States intended the land underneath Lake Coeur d’Alene to transfer to the State of Idaho upon statehood.⁹⁰ Pursuant to former “agreements” with the Lac Coeur d’Alene Tribe, the lake was originally included as part of the tribal reservation.⁹¹ Because the case involved land underneath navigable waters, which are presumed to transfer to the state upon statehood, slightly different rules of interpretation applied.⁹² Thus, the Court in this 5-4 decision never mentioned any canons in favor of Indians or brought in rules of treaty interpretation and instead found:

The issue of congressional intent is refined somewhat when submerged lands are located within a tract that the National Government has dealt with in some special way before statehood, as by reserving lands for a particular national purpose such as a wildlife refuge or, as here, an Indian reservation. Because reserving submerged lands does not necessarily imply the intent “to defeat a future State’s title to the land,” we undertake a two-step enquiry in reservation cases. We ask whether Congress intended to include land under navigable waters within the federal reservation and, if so, whether Congress intended to defeat the future State’s title to the submerged lands.⁹³

In the end, the Court found that Congress never intended to modify the agreement negotiated with the Tribe, stating that “[a]ny imputation to Congress either of bad faith or of secrecy in dropping its express objective of consensual dealing with the Tribe is at odds with the evidence.”⁹⁴

Except for Bourland, the tribes won all these treaty or quasi-treaty cases, and the Court faithfully applied the appropriate canons. This was not always true for the types of cases analyzed in the next Subsection of this Article.

2. The Reservation Disestablishment Cases: Treaty Abrogation Cases or Something Else?

The following cases ask whether subsequent legislation enacted pursuant to the General Allotment Act of 1884,⁹⁵ and allowing non-Indians to purchase “surplus” land within an allotted Indian reservation,⁹⁶ disestablished the borders of the reservations at issue.⁹⁷ There have been four of these cases since 1987: Hagen v. Utah,⁹⁸ South Dakota v. Yankton Sioux Tribe,⁹⁹ Nebraska v. Parker,¹⁰⁰ and McGirt v. Oklahoma.¹⁰¹ Officially, all four cases applied the test the Court established in Solem v. Bartlett.¹⁰² The issue in Solem was whether South Dakota had jurisdiction over a crime committed by a tribal member on land within the exterior boundaries of a reservation created under a treaty with the Cheyenne River Sioux.¹⁰³ South Dakota argued that the treaty reservation was disestablished, and therefore the State, and not the federal government or the tribe, had jurisdiction over the crime.¹⁰⁴ The Court held that the reservation was not diminished, and therefore the State had no jurisdiction.¹⁰⁵ The Court in Solem declared that “[d]iminishment . . . will not be lightly inferred. Our analysis of surplus land Acts requires that Congress clearly evince an ‘intent to change boundaries’ before diminishment will be found.”¹⁰⁶

Although the Court seemed to adopt a “clear evidence of congressional intent” test similar to the one the Court would adopt in Dion a couple years later,¹⁰⁷ that was far from the reality. Under Solem, If the words of the statute failed to demonstrate such clear intent, a court could also look at events surrounding the passage of the Act to see if they “unequivocally reveal a widely held contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation.”¹⁰⁸ If “contemporaneous events” were not enough to reveal a clear indication of congressional intent, a court could analyze “events that occurred after the passage of a surplus land Act to decipher congressional intent.”¹⁰⁹ Finally, if these “subsequent events” did not show clear congressional intent, a court could look at “who actually moved onto opened reservation lands” since this “is also relevant in deciding whether a surplus land act diminished a reservation.”¹¹⁰

Among the four cases, Yankton was the only one that mentioned Dion but did not elaborate further.¹¹¹ Nor did it follow Dion’s methodology. In Yankton, the Yankton tribe was attempting to regulate a solid waste disposal facility owned by a non-Indian.¹¹² The non-Indian argued that the tribe did not have jurisdiction because the waste facility was not within the reservation.¹¹³ The Court agreed, finding that congressional intent to diminish the part of the reservation where the facility was located was clear from the “plain statutory language.”¹¹⁴ Key to the Court’s finding of clarity was that the legislation provided that the Tribe shall “cede, sell, relinquish, and convey to the United States all their claim, right, and interest to all the unallotted lands within the limits of the reservation” for a sum of $600,000.¹¹⁵

In Hagen, the State of Utah was trying to prosecute an Indian for distributing a controlled substance.¹¹⁶ The Indian argued that the State had no jurisdiction over him because the crime was committed within the reservation.¹¹⁷ The Court disagreed, finding that the part of the reservation at issue had been disestablished.¹¹⁸ Just as in Yankton, the Court found clear indication of congressional intent because the statute at issue used certain key words, such as having the lands relinquished by the Tribe “restored to the public domain.”¹¹⁹ The Hagen dissent eloquently summarized the applicable law in disagreeing with the majority’s methodology:

Two rules of construction govern our interpretation of Indian surplus-land statutes: we must find clear and unequivocal evidence of congressional intent to reduce reservation boundaries, and ambiguities must be construed broadly in favor of the Indians. . . . In diminishment cases, the rule that “legal ambiguities are resolved to the benefit of the Indians” also must be given “the broadest possible scope”. . . . Although the majority purports to apply these canons in principle, it ignores them in practice, resolving every ambiguity in the statutory language, legislative history, and surrounding circumstances in favor of the State and imputing to Congress, where no clear evidence of congressional intent exists, an intent to diminish the Uintah Valley Reservation.¹²⁰

Both Hagen and Yankton claimed to look for clear evidence of congressional intent but found such clarity by arbitrarily claiming that some “magic words” such as “cede, sell, and relinquish” or “lands returned to the public domain” were code for “the reservation is hereby diminished, reduced, or terminated.”

Parker and McGirt, both finding no disestablishment, could be interpreted as moving away from the Solem methodology, although both pretended to follow it.¹²¹ Professor Matthew Fletcher noted that Parker reflected closer fidelity to textualism by engaging only with the text of the statutes and putting “an end to much of that nonsense” that had been generated under the Solem extratextual methodology.¹²² Indeed, in Parker, Justice Thomas rejected sole reliance on extratextual materials in federal cases, stating that while the Court could consider such treatment, “[o]ur cases suggest that such evidence might ‘reinforc[e]’ a finding of diminishment or nondiminishment based on the text. . . . But this Court has never relied solely on this third consideration to find diminishment.”¹²³ As to the subsequent demographic history of the reservation, Thomas concluded that it “cannot overcome our conclusion that Congress did not intend to diminish the reservation in 1882. And it is not our role to ‘rewrite’ the 1882 Act in light of this subsequent demographic history.”¹²⁴
McGirt v. Oklahoma continued the trend away from the Solem methodology.¹²⁵ Justice Gorsuch for the majority reaffirmed Parker’s position that extratextual evidence could not be conclusive when it came to holding a reservation was disestablished, stating:

To avoid further confusion, we restate the point. There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome those terms. The only role such materials can properly play is to help “clear up . . . not create” ambiguity about a statute’s original meaning.¹²⁶

Nor are there any past Supreme Court cases that support the State’s position in McGirt.¹²⁷

While both Parker and McGirt can be viewed as decisions applying textualism to the tribes’ advantage, the disestablishment cases should have been viewed as treaty abrogation cases from the beginning, and not just as statutory interpretation cases, as these cases all involve disestablishment of treaty-created reservations. As with treaty abrogation, statutes affecting reservation boundaries should require clear evidence that Congress actually considered modifying the original reservation boundaries and opted to diminish the reservation. In effect, Parker and McGirt can be viewed as cases re-establishing Dion—instead of Solem—as the controlling authority, with the important caveat that both Parker and McGirt disregarded Dion’s dicta that clear evidence of actual consideration could also be derived from legislative history and surrounding circumstances.¹²⁸

The reason for the initial error in not considering such cases treaty abrogation cases could be traced to the fact that although many reservations were established by treaties, the statutes opening the reservations to non-Indians did not “directly” abrogate treaties, because the treaty-established borders had already been modified by other Acts of Congress that reduced the original size of the treaty reservations. These Acts of Congress were in turn further modified by subsequent legislation opening up the reservations for non-Indian settlement pursuant to the General Allotment Act of 1887.¹²⁹

For instance, the first two cases considering disestablishment were non-treaty cases, in that the reservations were established by acts of Congress and not by treaties.¹³⁰ The third case, DeCoteau v. District Court, was different in that even though the original reservation was set up by treaty, the Act held to disestablish the reservation was enacted to implement an 1889 agreement with the Tribe.¹³¹ The Court mentioned the Indian canon under which “legal ambiguities are resolved to the benefit of the Indians,”¹³² but not the treaty abrogation canon requiring clear evidence of actual consideration to abrogate the treaty.

The fourth case, Rosebud Sioux Tribe v. Kneip, also involved amendments to the 1889 Act,¹³³ even though the reservation of the Rosebud Sioux was originally established in an 1868 treaty.¹³⁴ Justice Rehnquist, speaking for the Court, noted that the resolution of the case hinged on congressional intent, but that such intent can be derived from “‘the face of the Act,’ the ‘surrounding circumstances,’ and the ‘legislative history.’”¹³⁵ Although Rehnquist found such clear evidence of congressional intent to disestablish the reservation, the dissent criticized the majority, noting that the Court held the reservation disestablished “when the evidence concerning congressional intent is palpably ambiguous.”¹³⁶

In conclusion, it seems that the Solem methodology was in effect not applied in Parker and McGirt. Both cases emphasized finding clear evidence of congressional intent from the text of the statutes and not from extratextual evidence.

3. Non-Treaty Cases Mentioning the Indian Ambiguity Canon

Although there are four cases mentioning the Indian ambiguity canon, only one, County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, actually applied the canon.¹³⁷ Another mentioned it, but only for the purpose of discarding it.¹³⁸ The other two cases involved dissenting opinions.¹³⁹

County of Yakima involved state taxation of land inside the Yakima Indian reservation that had been initially assigned to individual Indians during the Allotment process but was subsequently taken out of trust status and now owned in fee simple.¹⁴⁰ The Court, per Justice Scalia, held that while the General Allotment Act permitted the County to impose an ad valorem tax on reservation land patented in fee pursuant to the Act, it did not allow the County to enforce its excise tax on sales of such land.¹⁴¹ On that issue, the Court noted that while “taxation of land” could be construed to include “taxation of the proceeds from sale of land,” this was not the phrase’s “unambiguous meaning.”¹⁴² Finding ambiguity, the Court said that “[w]hen we are faced with these two possible constructions, our choice between them must be dictated by a principle deeply rooted in this Court’s Indian jurisprudence: ‘[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.’”¹⁴³

The County of Yakima Court did not consider the Indian ambiguity canon when it came to taxation of the land itself, because the Indian General Allotment Act authorized taxation of fee-patented land, and such taxing power was explicitly confirmed in the 1906 Burke Act which amended the General Allotment Act.¹⁴⁴ The Burke Act provided that upon issuance of the fee patent by the Secretary of the Interior, all restrictions as to taxation of said land shall be removed.¹⁴⁵ Thus, the Court found unmistakably clear expression of congressional intent to authorize state taxation of Indian lands.¹⁴⁶

Justice Blackmun disagreed with that part of the majority opinion, arguing: “To be sure, the proviso could be read to suggest that Congress possibly intended taxation of allotted lands other than those lands patented prematurely. But a possibility, or even a likelihood, does not meet this Court’s demanding standard of ‘unmistakably clear’ intent.”¹⁴⁷

In Negonsott v. Samuels, a tribal member accused of a crime argued that a federal law did not give the State of Kansas jurisdiction over reservation Indians and that any ambiguity in the legislation should be resolved in his favor.¹⁴⁸ The Court rejected his argument. Concerning the Indian ambiguity canon, the Court said:

It is not entirely clear to us that the Kansas Act is a statute “passed for the benefit of dependent Indian tribes.” But if it does fall into that category. . . . We see no reason to equate “benefit of dependent Indian tribes,” . . . with “benefit of accused Indian criminals.”¹⁴⁹

The Court went on to hold that since the statute was unambiguous in conferring Kansas jurisdiction over major offenses committed by or against Indians on Indian reservations, this case did not call for the application of the Indian ambiguity canon of construction.¹⁵⁰

Another case where the Court discussed the Indian ambiguity canon was Chickasaw Nation v. United States.¹⁵¹ At issue was a provision of the Indian Gaming Regulatory Act, which stated:

The provisions of [the Internal Revenue Code of 1986] (including . . . chapter 35 of such [Code]) concerning the reporting and withholding of taxes . . . shall apply to Indian gaming operations . . . in the same manner as such provisions apply to State gaming and wagering operations.¹⁵²

The problem was that Chapter 35 did not concern itself with reporting or withholding taxes but only imposed taxes related to gambling while exempting certain state-controlled gambling activities.¹⁵³

The tribes argued that the Indian Gaming Act exempted them from paying those chapter 35 taxes from which states were exempted.¹⁵⁴ The Court disagreed, holding that the tribes’ treatment like states ended with “reporting and withholding” activities.¹⁵⁵ Concerning the Indian ambiguity canon, the Court stated:

The canon that assumes Congress intends its statutes to benefit the tribes is offset by the canon that warns us against interpreting federal statutes as providing tax exemptions unless those exemptions are clearly expressed. Nor can one say that the pro-Indian canon is inevitably stronger—particularly where the interpretation of a congressional statute rather than an Indian treaty is at issue.¹⁵⁶

The dissent, authored by Justice O’Connor, agreed that the statute contained some contradictions, but argued that since nothing in the text or legislative history resolved the ambiguity, it was appropriate to invoke the substantive canons of statutory construction.¹⁵⁷ These canons included “the Indian canon that ‘statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.’”¹⁵⁸ She concluded that “because Congress has chosen gaming as a means of enabling the Nations to achieve self-sufficiency, the Indian canon rightly dictates that Congress should be presumed to have intended the Nations to receive more, rather than less, revenue from this enterprise.”¹⁵⁹

Carcieri v. Salazar was another case where the majority purported to find a statute to be unambiguous,¹⁶⁰ while the dissent stated that the Court’s “cramped reading of a statute intended to be sweeping in scope . . . ignores the ‘principle deeply rooted in [our] Indian jurisprudence’ that ‘statutes are to be construed liberally in favor of the Indians.’”¹⁶¹ This case is perhaps the most egregious example among Federal Indian law cases when it comes to arbitrarily declaring that a statute was unambiguously clear, when in fact, it was far from it. At issue in Carcieri was whether tribes that were not under federal jurisdiction as of 1934 could still benefit from Section 5 of the Indian Reorganization Act of 1934 (IRA),¹⁶² which allowed the Secretary to take land in trust for Indians or Indian tribes.¹⁶³ Section 19 of the IRA defined “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.”¹⁶⁴

For over fifty years, the Department of the Interior had taken the position that “now under federal jurisdiction” meant that the tribe had to be under federal jurisdiction at the time the land was being transferred in trust to the tribe.¹⁶⁵ The Court disagreed and held that “now” meant as of 1934, the year the Act was enacted into law.¹⁶⁶ This meant that many of today’s federally acknowledged or recognized tribes, like the Narragansett Tribe (the applicant for a fee to trust transfer in Carcieri), would not qualify for the land transfer because they were not “under federal jurisdiction” as of 1934. In finding the law unambiguous, the Court managed to avoid both the Indian ambiguity canon of statutory construction and the Chevron doctrine under which an agency’s interpretation of an ambiguous statutory term should be given deference and sustained as long as such interpretation is permissible or reasonable.¹⁶⁷

Justice Thomas, speaking for the Court, first relied on the ordinary meaning of the word “now.”¹⁶⁸ He then mentioned the context of the IRA and thought it very meaningful that in another section of the IRA, Congress had used the words “now existing or established hereafter” when referring to an Indian reservation, yet did not adopt this phrasing in the section authorizing the Secretary to take land into trust for Indians.¹⁶⁹ Finally, he mentioned one departmental letter which indicated that the Executive Department had a different construction of the Act at the time of enactment than it had at the time of the case.¹⁷⁰

The rest of this Section will explore three cases where there was no discussion of the Indian ambiguity canon but applying the canon would have made a difference.

4. Cases Where the Indian Ambiguity Canon Should Have Been Used

In addition to Carcieri, Justice Thomas wrote two other majority opinions that totally ignored the Indian canons. In Cass County v. Leech Lake Band of Chippewa Indians, the issue was whether the County could tax fee land owned by tribal members within the Leech Lake Band’s reservation.¹⁷¹ The Leech Lake reservation had been allotted by the Nelson Act of 1889.¹⁷² That Act did not contain any language explicitly authorizing state or local taxation of such allotted lands. Nevertheless, Justice Thomas, writing for a unanimous Court, held that the County could impose the tax because Congress had made its intent to allow such tax “unmistakably clear.”¹⁷³ Justice Thomas came to this conclusion by interpreting precedents as endorsing the principle that whenever Congress allows Indians to alienate their lands, it corresponds to an explicit endorsement of state taxation of such lands.¹⁷⁴

One would have expected Thomas, as an avowed textualist, to derive this “unmistakably clear” meaning from the words of the statute or at least from its structure. Instead, his conclusion relied on two cases that dealt with other Acts of Congress: Goudy v. Meath, a 1906 case,¹⁷⁵ and Yakima v. Confederated Tribes, a 1993 case.¹⁷⁶ Justice Thomas’s reasoning can be summarized as follows. First, Goudy held that Section 5 of the General Allotment Act (GAA) allowed state taxation of Indian fee land because of its alienability.¹⁷⁷ Second, in Yakima, the Court held that the GAA was amended by the Burke Act to specifically allow state taxation.¹⁷⁸ Therefore, congressional intent to allow similar taxation in the 1889 Nelson Act could be inferred by importing a purpose borrowed from the 1906 Burke Act.¹⁷⁹ As one scholar noted, in his Cass County opinion, Thomas the textualist had become Thomas the purposivist.¹⁸⁰ The problem with Thomas’s analysis is first, that the Yakima Court only found unmistakable intent to allow taxation from the Burke Act.¹⁸¹ That Act is not applicable in Cass County, as the Leech Lake reservation was allotted pursuant to the 1889 Nelson Act.¹⁸² Second, as one federal circuit noted, the Yakima Court actually rejected the position adopted in Goudy that alienability automatically means taxability.¹⁸³

The last of the three Thomas opinions surveyed in this Subsection also reflects a stubborn refusal to acknowledge ambiguities. The issue in Alaska v. Native Village of Venetie Tribal Government was whether the Venetie Indian Community could tax a non-Indian entity for work done on tribal lands.¹⁸⁴ The State argued that because such lands were owned by the tribe in fee simple, they did not qualify as being in “Indian Country” for the purpose of allowing tribal tax jurisdiction over nonmembers.¹⁸⁵ The Court, through Justice Thomas, held that lands set aside for Alaska Natives pursuant to the Alaska Native Claims Settlement Act (ANCSA)¹⁸⁶ could not qualify as “Indian Country” because such lands were not set aside for a “dependent Indian Community” as defined in 18 U.S.C. § 1151.¹⁸⁷ The Court emphasized that to qualify as land set aside for a dependent Indian Community under Section 1151, such lands must be “validly set apart for the use of the Indians as such” and “under the superntendence of the Federal Government.”¹⁸⁸ In finding that these lands were not under federal superintendence, Justice Thomas relied heavily on ANCSA’s congressional findings, according to which “the [ANCSA] settlement should be accomplished rapidly, with certainty, . . . without establishing any permanent racially defined institutions [and] without creating a reservation system or lengthy wardship or trusteeship.”¹⁸⁹ As other scholars have argued, there is nothing in ANCSA indicating that Congress unequivocally intended that these Native fee lands not be considered Indian Country for the purpose of Section 1151.¹⁹⁰ Justice Thomas derived that intent not as much from ANCSA as from his understanding of much older pre-ANCSA cases indicating that all lands set aside for dependent Indian communities had historically been under federal supervision.¹⁹¹

The final case where the Indian ambiguity canon should have been used to reach the opposite conclusion is Adoptive Couple v. Baby Girl.¹⁹² The major issue was whether the unmarried genetic Indian father of an Indian child could challenge the adoption of his child under Section 1912 (f) and (d) of the Indian Child Welfare Act (ICWA).¹⁹³ Adoptive Couple should have been a good candidate for applying the Indian ambiguity canon. Yet, in this 5-4 decision, the majority concluded that the “plain text of §§ 1912(f) and (d) makes clear that neither provision applies in the present context.”¹⁹⁴ Section 1912(f) provides that:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”¹⁹⁵

Relying heavily on dictionary definitions of the words “continued custody,” the Court held that Section 1912(f) did not apply because the father in this case never had custody of the Indian child.¹⁹⁶ The Court also stated that this interpretation conformed with the “primary mischief” the Act was intended to prevent, which was “the unwarranted removal of Indian children from Indian families due to the cultural insensitivity and biases of social workers and state courts.”¹⁹⁷ The dissent, on the other hand, accused the majority of beginning “its analysis by plucking out of context a single phrase from the last clause of the last subsection of the relevant provision, and then builds its entire argument upon it.”¹⁹⁸ The dissent also criticized the majority for openly professing “its aversion to Congress’ explicitly stated purpose in enacting the statute.”¹⁹⁹ Justice Sotomayor concluded the dissent by stating that the majority

asserts baldly that “when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no ‘relationship’ that would be ‘discontinu[ed]’ . . . by the termination of the Indian parent’s rights.” Says who? Certainly not the statute. . . . In the face of these broad definitions, the majority has no warrant to substitute its own policy views for Congress’ by saying that “no ‘relationship’” exists between Birth Father and Baby Girl.²⁰⁰

In conclusion, since 1987, the Indian ambiguity canon of statutory construction, calling for a liberal construction with ambiguities resolved in the Indians’ favor, has been mentioned only once in a majority opinion. Yet many cases, including Chickasaw, Carcieri, Cass County, Venetie, and Adoptive Couple, should have reached contrary results had the Court acknowledged that the statutes involved were ambiguous and applied the Indian ambiguity canon.

II. The Legitimacy of the Indian Canons
and Their Proper Application

In this Part, after first exploring the potential textualist objections to the use of normative canons, I argue that these objections are not legitimate because the Indian canons have a constitutional basis. I then provide arguments to enhance the use of such canons and conclude by discussing the extent of their applicability.

A. The Textualist Perspective

This Article has already mentioned how Justice Scalia’s unwillingness to find ambiguities has posed a problem for the use of the Indian ambiguity canon.²⁰¹ An additional issue is that the first part of the canon calling for statutes to be “liberally” construed is bound to be problematic for a textualist if “liberally” is understood as construing a statute so as to give the maximum effect to the purpose of the statute.²⁰² Almost by definition, textualists dislike considering a statute’s “purpose” in order to derive the meaning of a text. Yet, as Professor John Manning noted, “although textualists find it appropriate in cases of ambiguity to consult a statute’s apparent purpose or policy (provided, that it is derived from sources other than legislative history), they resist altering a statute’s clear semantic import in order to make the text more congruent with its apparent background purpose.”²⁰³

One theme running throughout many of the Indian canons is a search, whether clear or unequivocal, for congressional intent. One could think that this would pose a problem for textualists since they allegedly oppose interpreting statutes by looking for congressional intent.²⁰⁴ Textualist scholars like John Manning, however, have taken the position that the very concept of legislative intent is just “a metaphor that invites interpreters to think about how to attribute a decision to a complex, multiparty body that does not have a mental state.”²⁰⁵ Although textualists do not believe in an actual or subjective congressional intent, they do believe in “objectified intent,” which is “the import that a reasonable person conversant with applicable social and linguistic conventions would attach to the enacted words.”²⁰⁶ So, the fact that the Indian canons are phrased in terms of a search for clear or unequivocal congressional intent should not be a problem per se for textualists. To the extent that there is a problem, it seems to come from the Justices’ reluctance to find ambiguities in cases such as Carcieri, Cass County, Venetie, and Adoptive Couple.

Another potential problem for textualists is the use of substantive canons.²⁰⁷ As Justice Coney Barrett stated in an article written before she joined the Court:

Substantive canons are in significant tension with textualism . . . insofar as their application can require a judge to adopt something other than the most textually plausible meaning of a statute. Textualists cannot justify the application of substantive canons on the ground that they represent what Congress would have wanted. . . . A judge applying a substantive canon often exchanges the best interpretation of a statutory provision for a merely bearable one.²⁰⁸

On the other hand, Justice Coney Barrett does not object to the use of substantive canons when there are two equally plausible interpretations.²⁰⁹ Her concern is with the use of substantive canons to allow courts to depart from the most natural interpretation of the text.²¹⁰ Thus, she identified as a major concern for textualists the need to find the authority for a court to adopt an interpretation that is contrary to the faithful agent model.²¹¹ However, Coney Barrett takes the position that canons derived from the Constitution should be acceptable to textualists²¹² because “[t]he duty to enforce the Constitution may empower a judge not only to invalidate congressional actions that violate constitutional norms, but also to resist congressional actions that threaten those norms. The Judge need not serve exclusively as Congress’s faithful agent because she serves a higher law.”²¹³ In the next Section, I argue that the Indian canons could be viewed as constitutionally inspired canons.

B. The Indian Canons’ Constitutional Connection

What does it mean for the Indian canons to be rooted in the trust relationship, and what does this fact imply for the canons’ application? Here, I show that the Indian canons have a constitutional lineage because the trust doctrine has constitutional roots. As Professor Carole Goldberg eloquently stated:

[T]he concept of a federal trust does draw on the text of the Constitution. . . . The textual source in the Constitution is article I, which differentiates Indian tribes both from foreign nations and from states. This text required the Marshall Court to identify precisely what kind of political bodies the tribes were; and the conclusion—that they were “domestic dependent nations”—encompasses both the ideas of a trust and of sovereignty.²¹⁴

The existence of a trust relationship between the United States and the Indian nations can be traced to Chief Justice Marshall’s opinion in Cherokee Nation v. Georgia.²¹⁵ In his opinion, Chief Justice Marshall relied principally on three arguments to formulate his description of tribes as “domestic, dependent nations.”²¹⁶ First, “[t]he Indian territory is admitted to compose a part of the United States.”²¹⁷ This assertion derives from the Court’s earlier case Johnson v. M’Intosh where the Court held that the doctrine of discovery applied to Indian nations.²¹⁸ Second, “[t]hey acknowledge themselves in their treaties to be under the protection of the United States; they admit that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper.”²¹⁹ Finally, the Chief Justice mentioned that the Commerce Clause, which empowers Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” makes a distinction between foreign nations and Indian tribes because “[i]n this clause they are as clearly contradistinguished by a name appropriate to themselves, from foreign nations, as from the several states composing the union. They are designated by a distinct appellation.”²²⁰

As explained earlier, the trust doctrine was used to justify the congressional plenary power over Indian nations.²²¹ In more modern times, however, the source of congressional power over Indian tribes has migrated from the trust doctrine to the Constitution.²²² Thus, while comparing the Interstate Commerce Clause with the Indian Commerce Clause, the Court mentioned that “while the Interstate Commerce Clause is concerned with maintaining free trade among the States . . . the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”²²³ However, the trust doctrine is still mentioned as a source of congressional plenary power. For instance, in a 1974 case, although the Court stated that “[t]he plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself,”²²⁴ the Court also mentioned that Congress’s broad powers over Indian tribes was “based on a history of treaties and the assumption of a ‘guardian-ward’ status, to legislate on behalf of federally recognized Indian tribes.”²²⁵

In mentioning Indian tribes in the Commerce Clause along with other sovereigns, the Constitution recognizes, implicitly at least, that Indian tribes possess a certain degree of sovereignty.²²⁶ The Constitution does not, however, guarantee the extent of this sovereignty,²²⁷ and the Court has undermined tribal sovereignty by holding that the purpose of the Commerce Clause was to give Congress plenary power over Indian tribes.²²⁸ In that fashion, the trust relationship can be considered, just like federalism, an underenforced norm with constitutional roots.²²⁹ For instance, although Indian tribes can sue the federal government for breach of specific statutes creating trust duties,²³⁰ they have generally been denied the right to sue the federal government for injunctive relief directing the government to enforce the trust responsibility.²³¹ Similarly, while tribes can sue the federal government for monetary damages for taking a vested property right without affording just compensation under the Fifth Amendment,²³² they have not been able to successfully challenge the power of Congress to regulate their tribal affairs or interfere with tribal self-government.²³³

In other words, while tribes can sue the United States for violations of other parts of the Constitution, they cannot allege that Congress has exceeded its power under the Indian Commerce Clause. Professor Clinton once critically observed that while there are external constitutional limits to congressional power over Indian tribes, there are no internal limits within the Indian Commerce Clause.²³⁴ In conclusion, the Indian canons of statutory construction have a constitutional lineage because the status of Indian nations as sovereigns is implied in the Commerce Clause. However, that clause has also been construed as giving plenary power to Congress.

C. Searching for Congressional Intent to Interfere with Tribal Sovereignty: Review and a Proposed Test

In a recent case involving tribal sovereign immunity, after stating that the tribal sovereign immunity canon represented a rule of construction reflecting “an enduring principle of Indian law,” the Court added that “[a]lthough Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government.”²³⁵ Similarly, in Santa Clara Pueblo v. Martinez, the Court stated that in construing Indian-related statutes, courts should look for “clear” indication of congressional intent before a statute is construed to intrude on tribal sovereignty.²³⁶ The problem with looking for a “clear” intent to interfere with tribal self-government is that “clear intent” seems to be in the eyes of the beholder. This Article takes the position that the test to find an intent to interfere with tribal sovereignty should be the same as the test requiring “unequivocal” expression of congressional intent before tribal sovereign immunity can be abrogated by Congress. The tribal sovereign immunity test was phrased in this manner because the Court borrowed from cases deciding whether state sovereign immunity had been abrogated. Thus, in Santa Clara Pueblo,²³⁷ the Court cited to two state sovereign immunity cases to justify its “unequivocal expression of congressional intent” test for abrogation of tribal sovereign immunity.²³⁸

While looking for clear indication of congressional intent may sound the same as looking for “unequivocal” expression, as is the case for abrogation of tribal sovereign immunity, the fact is that courts have taken the sovereign immunity canon more seriously.²³⁹ Under my proposed methodology, a court interpreting a federal statute should first ask: Is our interpretation of the statute interfering with tribal sovereignty? If the answer is yes, the next step would be to look for unequivocal expression that Congress intended such interference. If the answer is no, the court should interpret the statute so as not to interfere with such sovereign rights.

In requiring Congress to be clear when it uses its plenary power to interfere with tribes’ sovereign rights, the Indian canons fulfill a similar role to the federalist canons in that those canons also aim to make sure that Congress clearly intends to interfere with state sovereignty.²⁴⁰ In United States v. Bond, the Court stated that “it is incumbent upon the federal courts to be certain of Congress’s intent before finding that federal law overrides ‘the usual constitutional balance of federal and state powers.’”²⁴¹ As explained by Professor Manning, federalist canons preserve this balance “by presuming that, absent a clear statement to the contrary, acts of Congress do not intrude upon the states either by regulating state functions or displacing state law.”²⁴² The Indian canons play a similar role in ensuring that tribal rights are protected from congressional plenary power until there is a clear and manifest congressional intent to interfere with such rights.²⁴³ This Article’s proposed canon protecting tribal sovereignty attempts to protect underenforced norms such as tribal self-government and the trust relationship by ensuring that even though the Court declared that Congress has plenary power over Indian tribes, this power is only enforced sparingly and willfully.

To justify the proposed analogy to the federalist canons, the tribal sovereignty canon should apply only when federal statutes interfere with tribal sovereignty. The question, therefore, is what kind of statutes are those? The Indian Civil Rights Act,²⁴⁴ at issue in Santa Clara v. Martinez,²⁴⁵ provides a good example of such a statute since it imposes on tribal governments the duty to protect rights similar to those in the Bill of Rights.²⁴⁶

One test attempting to define what kind of government actions infringe on tribal sovereignty was initially devised by the Court with respect to states’ attempts to extend their jurisdiction in Indian Country. Thus, in 1959, the Court in Williams v. Lee formulated a test for deciding the extent of state jurisdiction in Indian Country, stating: “Essentially, absent governing Acts of Congress, the question has always been whether the state actions infringed on the right of reservation Indians to make their own laws and be ruled by them.”²⁴⁷ The problem with borrowing this test for this Article’s purpose is that this test was soon modified in 1973 when the Court announced a new test:

[T]he trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal preemption. The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead at the applicable treaties and statutes which define the limits of state power.²⁴⁸

Therefore, there are no examples where the Court has applied this test except for its application in Williams v. Lee.²⁴⁹ The Court in Williams held that state jurisdiction could not be extended so as to allow a non-Indian to sue a tribal member in a state court over a debt contracted on the reservation because this would “undermine the authority of tribal courts over Reservation Affairs and hence would infringe on the right of the Indians to govern themselves.”²⁵⁰

One could also borrow from the area of the law attempting to determine if a federal law of general applicability not mentioning Indian tribes should nevertheless be enforced on Indian reservations.²⁵¹ There is no controlling Supreme Court precedent on this issue.²⁵² Under the majority view, established by the Ninth Circuit, there is a presumption that general federal regulatory laws apply to Indian reservations.²⁵³ This presumption can be rebutted, however, if applying the law would interfere with “exclusive rights of self-governance in purely intramural matters,” or interfere with treaty rights.²⁵⁴ If the presumption is rebutted, courts following this approach have required clear evidence of congressional intent to apply the law to the tribes.²⁵⁵ Another approach, favored by the D.C. Circuit, would require only clear evidence of congressional intent if the general federal law interfered with the “traditional attributes of self-government.”²⁵⁶ This Article argues that when determining whether the Indian canons should apply to a federal statute, a more generous definition of tribal self-government, as was adopted in Williams and Pueblo of San Juan, should be used. While there are some judicially imposed limits on tribal jurisdiction over non-members,²⁵⁷ the Court has never restricted tribal sovereignty to traditional attributes of sovereignty, let alone to purely intramural aspects of self-government.²⁵⁸

In NLRB v. Pueblo of San Juan, the Tenth Circuit disagreed with an approach focusing on whether the general federal law interfered with strictly intramural aspects of tribal sovereignty.²⁵⁹ The Tenth Circuit viewed the central question as whether Congress, in enacting such laws of general applicability, had the intent to preempt tribal sovereign powers in the area covered by the general federal law at issue.²⁶⁰ After stating that “in addition to broad authority over intramural matters such as membership, tribes retain sovereign authority to regulate economic activity within their own territory,”²⁶¹ the Pueblo of San Juan court concluded that “[p]reempting tribal laws divests tribes of their retained sovereign authority. . . . In the absence of clear evidence of congressional intent, therefore, federal law will not be read as stripping tribes of their retained sovereign authority to pass right-to-work laws and be governed by them.”²⁶²

The Tenth Circuit also announced that the burden to show such intent was on the federal agency, not the Pueblo,²⁶³ and went on to explain why the burden to show a congressional intent to preempt tribal sovereignty fell on the federal agency.²⁶⁴ First, the court asserted that although Congress can divest tribal powers, divestiture was disfavored as a matter of national policy.²⁶⁵ The court then mentioned that whenever tribal sovereignty was at stake, the trust relationship cautioned that “we tread lightly in the absence of clear indications of legislative intent.”²⁶⁶ Finally, the court invoked the federal policy of encouraging tribal self-government.²⁶⁷

The final Section of this Article addresses the kinds of statutes where the Indian canons should apply.

D. The Extent of the Indian Canons’ Applicability

There have been five Indian statutory interpretation cases before the Court since 1987 that did not involve Indian-specific statutes.²⁶⁸ The tribal interests lost all five, and the Court did not apply any of the Indian canons.²⁶⁹ For some, the Indian canons are applicable only to statutes enacted for the benefit of Indians. As stated earlier, the Court in Negonsott v. Samuels said that “[i]t is not entirely clear to us that the Kansas Act is a statute ‘passed for the benefit of dependent Indian tribes.’”²⁷⁰ The question this Section addresses is how courts should determine the applicability of an Indian canon.

There is arguably a difference between applying the Indian ambiguity canon to all statutes and applying the canon when the statute interferes with tribal sovereignty such that the tribal sovereignty canon also comes into play. The ambiguity canon can be traced to the treaties, but it was first applied to interpret statutes enacted pursuant to the trust relationship.²⁷¹ The question here is whether the test should focus, as the Negonsott Court indicated, on whether a statute was enacted for the “benefit of tribes.”²⁷² This Article takes the position that this determination would be too subjective. Determining whether some statute was enacted “for the benefit” of the Indians could be problematic. Take the GAA of 1887 for instance.²⁷³ Just about all Indian tribes were against the policy of allotment and thought the GAA would be detrimental to Indian tribes.²⁷⁴ Yet, many white politicians of the time argued that the Act was being enacted for the benefit of Indians because its goal was to transform Indians into farmers so that they could more quickly assimilate into the non-Indian mainstream society.²⁷⁵

Rather than determining whether the statute actually “benefits” the Indians or the tribes, the canon should be extended to all statutes that were enacted pursuant to Congress’s Indian Commerce Clause power. As noted earlier in this Article, the ambiguity canon has historically been tied to the trust relationship.²⁷⁶ It is therefore rational to assume that in cases containing ambiguities, Congress would have wanted the statute to be interpreted to the benefit of Indians.

The tribal sovereignty canon should not be limited to statutes enacted solely pursuant to the Indian Commerce Clause power. Take, for instance, federal laws of general applicability. These laws were not enacted with the Indian Commerce Clause power in mind but pursuant to other constitutional provisions, such as the Interstate Commerce Clause power.²⁷⁷ Yet, application of such laws to Indian tribes may still interfere with tribal self-government or, in other words, with “the right of reservation Indians to make their own laws and be ruled by them.”²⁷⁸ Both the tribal sovereignty canon—a canon that asks whether there is a clear or unequivocal expression of congressional intent to interfere with tribal sovereign rights—and the Indian ambiguity canon should apply to such statutes of general applicability.²⁷⁹

The Supreme Court expounded that “[a]mbiguities in federal law have been construed generously in order to comport with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence.”²⁸⁰ The tribal sovereignty canon is based on Congress’s relatively unchecked plenary power over Indian nations.²⁸¹ Congress can exercise this plenary power not only under the Indian Commerce Clause but also pursuant to other powers granted to Congress under the Constitution.²⁸² The normative reason for the tribal sovereignty canon is to ensure that in using its plenary power, Congress has willfully and intentionally decided to abrogate tribal sovereign rights.²⁸³ It therefore does not matter whether Congress was acting pursuant to its Indian Commerce Clause power or other more general constitutional power. Thus, several courts have applied the Indian ambiguity canon along with the tribal sovereignty canon to federal laws of general applicability.²⁸⁴

Conclusion

Through an analysis of treaty and statutory interpretation cases decided in the last thirty-five years, this Article shows that the Court is generally inclined to apply the Indian canons of construction to treaty interpretation and treaty abrogation cases and cases involving abrogation of tribal sovereign immunity. However, the Court is much less willing to apply the tribal sovereignty canon, calling for clear legislative intent before a statute is construed to interfere with tribal sovereignty. Similarly, the Court almost never relies on the Indian ambiguity canon, requiring statutes enacted for the benefit of Indians to be liberally construed with ambiguities resolved to the benefit of the Indians.

This Article argues that these canons have constitutional roots, and as such, textualist jurists should not be reluctant to use them. Furthermore, textualism as a methodology could be helpful to tribal interests in that congressional intent to abrogate tribal rights should be derived from only the text of the statute and not extratextual material. This Article also argues that the tribal sovereignty canon has been underused. To remedy this problem, the Article suggests that the “unequivocal expression of congressional intent” test that has been applied to abrogation of tribal sovereign immunity should also be applied to cases involving interference with other tribal sovereign rights. Therefore, this Article argues that a court interpreting a federal statute should first ask whether a certain interpretation of the statute interferes with tribal sovereignty. If the answer is yes, the court should look for unequivocal expression of congressional intent to interfere with that sovereignty. Finding no such intent, a court should interpret the statute so as not to interfere with tribal sovereign rights.

* S.J. Quinney Professor of Law, University of Utah S.J. Quinney College of Law. This research was made possible, in part, through generous support from the Albert & Elaine Borchard Fund for Faculty Excellence.