A Bit More on the “Indian Canon” Talk in the Ysleta Argument

What is the origin of the “Indian canon” asked Justice Alito?

Quick answer: The Constitution. The default interpretative rules in federal Indian law are rooted in separation of powers. The Constitution grants plenary power in Indian affairs to Congress. When Congress enacts a statute implementing its Indian affairs powers to benefit an Indian tribe, say, the Ysleta del Sur Pueblo Restoration Act, the Article III judiciary must defer to Congress’s Indian affairs powers and interpret the statute to reflect Congress’s wishes. The Ysleta restoration act is the epitome of an Indian affairs statute designed to benefit an Indian tribe. For the Supreme Court to interpret that statute to the advantage of the State of Texas on such a critically important point is for the Court to wildly overstep its place as a separate branch of government. Is that really so difficult?

Justice Kavanaugh asked a softball that should have ended with an answer like the one above (well, maybe not the last line):

JUSTICE KAVANAUGH: So that suggests you need more of a clear statement, and those usually — those clear statement rules usually reflect some constitutional or quasi-constitutional value, due process, extraterritorial structure, the structure of the country. What would that reflect here, that principle you just described?

p. 62, line 25 — p. 63, lines 1-7

This was NOT the answer we got:

MR. YANG: Well, I think it — it reflects that Indian tribes are sovereign nations, that they have before the founding of this country. And, you know, the Court’s opinion in Bay Mills tracks some of this. So, you know, whatever you think about the — canons in general and whether that should be, you know, plain statement, just, you know, tip the balance in ambiguity, the Indian canon, at least when we’re talking about tribal sovereignty and the application of state law on tribal lands, that does have a strong pedigree and I think ultimately it traces to the fact these are sovereign nations.

p. 63, lines 8-21

The fact that Indian tribes are sovereigns is true (so are states and so are foreign nations), but doesn’t answer whether the Court should privilege substantive canons favoring tribes over states. It’s a non-answer in the end, and allows room for a states’ rights oriented judge to toss up their hands and say, let’s give this one to the states so I can fulfill my political commitments without being too obvious about it.