Turtle Talk

Katherine Florey has posted “Indian Law Countercanons,” forthcoming in the Michigan Law Review, on SSRN.

Here is the abstract:

On the second or third day of class, Federal Indian Law students learn that courts apply field-specific canons, originally derived from Chief Justice Marshall’s 1832 opinion in Worcester v. Georgia, to determine the degree to which tribal nations retain sovereign powers and treaty-protected rights in the face of arguably conflicting law. Although the canons are formulated in different ways, they are animated by the shared goal of establishing structural recognition and protections for tribes. Nonetheless, scholars and tribal advocates have lamented that, even as courts continue to apply the canons, in recent years they have failed to do so consistently. 

This Article posits, however, that the issue goes deeper. The Supreme Court, especially in recent decades, has done more than simply ignore the canons when it chooses to. Rather, in keeping with Karl N. Llewellyn’s famous observation that, where statutory interpretation in general is concerned, “there are two opposing canons on almost every point,” the Court has developed a series of what might be called the Indian law countercanons. Although not precisely opposite to the traditional Indian law canons in all respects, the countercanons reflect a set of values wholly inconsistent with the protections for tribal sovereignty that the traditional canons embody, instead evincing an overwhelming preoccupation with safeguarding the non-Native status quo. 

The countercanons have strongly influenced outcomes in a variety of cases over the past few decades. Yet the Court has not identified them as canons, nor has it explained their source, role, or scope of application. To fill this gap, this Article attempts to map the evolution of the countercanons and to explore the significant role they have played in a variety of situations. The Article also adds a new element to the abundant critiques of the Court’s recent federal Indian law jurisprudence by analyzing the countercanons specifically as canons – that is, by connecting them to the larger literature on the role of canons in legal interpretation more generally. Reviewing two areas of canon scholarship – standards for assessing canons’ validity and considerations of when it is appropriate for canons to change – the Article concludes that, in contrast to the traditional canons, the countercanons lack legitimacy. On this basis, the Article critiques both the countercanons themselves and the process by which they have come to partially supplant the traditional canons.