Alex Skibine on Textualism and the Indian Canons of Statutory Construction

Alexander Tallchief Skibine has posted “Textualism and the Indian Canons of Statutory Construction,” forthcoming in the University of Michigan Journal of Law Reform, on SSRN.

Here is the 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 the field of Indian Affairs. Through an examination of the Supreme Court’s cases involving statutory or treaty interpretation relating to Indian nations since 1987, 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 requires clear intent to interfere with tribal sovereign rights, the other 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 use these two canons: First, these canons have constitutional roots and as such even textualists on the Court should not be reluctant to use them. Secondly, the canon applicable to abrogation of tribal sovereign immunity should also be applied 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.

Highly recommended!

Makah & State request rehearing & rehearing en banc in dispute regarding Quileute’s and Quinault’s ocean U&A

Makah’s petition is here, and the state’s is here. Among the issues at stake in the case are whether the Stevens treaties must be interpreted monolithically and whether the evidence of whaling and sealing is sufficient to establish fishing usual & accustomed areas.

Quapaw Tribe Congressional Reference Case Survives Motion to Dismiss

Here are the materials in Quapaw Tribe v. United States (Fed. Cl.):

1 Congressional Reference

4 Complaint

7-1 US Motion to Dismiss

10 Response

11 Reply

16 DCT Order Denying Motion to Dismiss