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03/28/2022

Are the Indian Canons Illegitimate? A Textualist-Originalist Answer for Justice Alito
Evan D. Bernick

[Editor's note: For this guest post we welcome Evan D. Bernick, Assistant Professor of Law at Northern Illinois University College of Law.] 

Justice Samuel Alito caused a stir when at oral argument in Ysleta del Sur Pueblo v. Texas he questioned the legitimacy of an interpretive rule that requires judges to interpret legal texts in favor of Native Nations and people. After Anthony Yang, the assistant to the U.S. solicitor general (arguing in support of the Pueblo tribe), invoked the “Indian canon,” Alito pounced:

You refer to the Indian canon. Those who favor the interpretation of statutes to mean what the words of the statute are generally understood to mean have some question about some of these substantive canons.

Now some of them, like the Rule of Lenity, have a long history. What do you think is the basis for this Indian canon?

And when Yang responded that his position didn’t depend on the Indian canon, Alito continued:

What is the origin of this [canon]? Is it your — is it your argument that throughout history Congress has always framed statutes in a way that are favorable to Indian tribes?

This is a very big deal. There are 574 federally recognized Native Nations that govern land masses the size of states. There are over 4,000 treaties and statutes dealing with Native people and thousands of judicial decisions. “Indians” makes up an entire chapter of the United States Code.

And Indian law is in flux. In 2021 the Court in McGirt v. Oklahoma issued what may be the most pro-tribal-sovereignty decision ever to appear in the U.S. Reports, holding that nearly half of the state of Oklahoma (including the entire city of Tulsa) is a reservation of the Muscogee (Creek) Nation. But McGirt was a 5-4 decision; one member of the majority, Justice Ginsburg, has since deceased; and the Court will next term take up a case implicating the constitutionality of the Indian Child Welfare Act, a monumental piece of legislation that regulates all child custody proceedings involving Native children.

So, Justice Alito’s challenge to the Indian canon is important. But it hasn’t yet received an answer from a textualist-originalist standpoint. In this short essay, I’ll sketch one.

There really isn’t just one Indian canon. There exist several rules of interpretation that require favorable treatment of Native Nations and people. One requires that ambiguities in statutes be interpreted in favor of Native Nations and people. A second applies to ambiguities in treaties between Native Nations and the United States.  And a third requires that Congress clearly express in statutory text its intention to diminish or terminate a Native reservation.

These Indian canons have long been criticized by textualists and originalists. In A Matter of Interpretation, Justice Scalia disparaged them along with other “substantive” canons “that load the dice for or against a particular result” because they require judges to depart from what statutes “fairly say.”  And then-Professor Amy Coney Barrett suggested in an widely noted article that the Indian canons of statutory interpretation might be especially suspect because they developed fairly recently, in the early twentieth century.

In the latter article, Barrett noted Philip Frickey’s argument that the Indian canons rest on a firm political-theoretical foundation. Frickey contended that, at the Founding, Native Nations were regarded as nations, with attendant sovereignty; and canons of treaty and statutory construction that favor Native Nations and people recognize and reinforce that sovereignty. They do so by assuming that Native Nations, like other sovereigns, do not willingly make concessions that would undermine their political existence.

From a textualist-originalist standpoint, Frickey’s argument is vulnerable. It’s not clear where judges get the authority to create canons that promote political-theoretical values—even if those values shaped the Constitution’s text and structure. That’s why textualist and originalist skepticism of substantive canons isn’t limited to the Indian canons; it extends as well to federalism canons that require “unmistakably clear statements” before the sovereignty of states can be infringed.  

Then again, from a textualist-originalist standpoint, Indian law has long been a breeding ground for disorderly elements. It is populated with things that find no footing in constitutional text or structure; that constitute radical departures from Founding-era practices, relationships, and doctrines; and which textualists and originalists should not block out of view when evaluating the Indian canons. Among these things are the “plenary power” doctrine, developed in the late-nineteenth century, which gives the federal government virtually unchecked, exclusive power over Native Nations. With the ascendance of plenary power came the replacement of the consensual practice of treating with Native Nations with the imposition of federal statutes on their internal affairs.

As Robert Clinton provocatively put it, There is No Federal Supremacy Clause for Indian Tribes. No constitutional text hierarchically subordinates Native Nations and their laws to federal law. The only text that expressly delegates to the federal government any power respecting Native Nations at all is the Indian Commerce Clause, which grants Congress the authority “[t]o regulate Commerce . . . with the Indian Tribes.” Justice Clarence Thomas has raised doubts about whether this text can justify the plenary power to govern Native Nations that the Supreme Court has endorsed for over a hundred years. Originalist scholarship reinforces these doubts.

In particular, Lorraine Updike Toler’s meticulous parsing of the Constitution’s drafting history has yielded compelling evidence that the Framers intentionally omitted a clause that would have supplied broad authority, not only over trade with Native Nations but over external and internal Indian affairs. These affairs included war and peace, land acquisitions, protection, border policing,  gift giving, and the maintenance of legal relations between Natives and non-Natives. The Continental Congress had exercised such authority in the wake of the Revolution and under the Articles of Confederation.

It might be thought that the powers that would have conferred by the (nonexistent) Indian Affairs Clause are reserved to the states or the people of the U.S. by the Tenth Amendment. But neither the states or the people enjoyed broad, preexisting authority over Indian affairs to reserve. Native Nations stood as independent sovereign entities that did not delegate any power over their affairs to other sovereigns save by treaty. The Constitution did not alter this; in fact, Article VI indirectly strengthens tribal sovereignty by making treaties—including treaties with Native Nations—supreme over state law. It is telling that no new major legislation was enacted regarding Indian affairs until a century after the Founding, whereas hundreds of treaties were negotiated in that time.

Of course, that is not our world. Today, reams of federal statutes regulate Indian affairs, and the U.S. does not make treaties with Native Nations. Since 1871, federal law has prohibited the U.S. from treating with Native Nations. And in a series of decisions during the late-nineteenth century that—like similar decisions endorsing plenary power over immigration and newly acquired territories—reek of racism and colonialism, the Court upheld unilateral congressional interventions in Native Nations’ internal affairs on the basis of the “paramount authority of Congress over the Indian tribes, and of the duties imposed on the Government by their condition of dependency.” Subsequent interventions included outlawing Native religious and cultural practices; changing Native land-tenure systems from communal tribal ownership to individually owned allotments, with any “surplus,” unallotted land being sold to non-Indians; and removing Native children to boarding schools that were designed to eliminate tribal traditions, cultures and languages.

Which brings us back to the Indian canons. To reject them because they are relatively recent and load the dice in favor of Native Nations and people would be to assume a textualist-originalist Indian-law baseline from which the Indian canon supposedly departs. We should reject that assumption. The statutory canons are recent, yes; but so are the nontextualist, nonoriginalist doctrines and decisions that legitimate federal regulation of Indian affairs in the first place. The canons load the dice against the natural reading of statutory text, yes; but so, too, do the doctrines for which they compensate load the dice against natural readings of constitutional text.

A natural reading of the constitutional text would not give Congress the plenary power it currently enjoys over Native Nations. But Congress does currently have that power. And the Indian canons constrain its exercise in ways that (1) promote Native sovereignty by assuming that Nations do not lightly part with it; and (2) increase the chances that statutes will approximate arrangements to which Native Nations and people would have consented through treaty—as the original Constitution requires.

The ideal, first-best originalist path forward might involve transforming Indian law by eliminating the plenary-power doctrine altogether; holding unconstitutional the 1871 prohibition on treating with Native Nations; and restoring treaty-making. In the meantime, however, the Indian canons should be seen as instruments of second-best originalism. In a pervasively nontextualist, nonoriginalist area of law, they make it harder than it would otherwise be for the federal government to depart still further from constitutional text and original meaning and reduce the harm inflicted by previous departures. They should be retained.