Textualism and the Indian Canons of Statutory Construction

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.