Canons of Construction, Stare Decisis and Dependent Indian Communities: a Test of Judicial Integrity

• Citation: Vol. 16
• Publication year: 1999

§ 16 Alaska L. Rev. 37. CANONS OF CONSTRUCTION, STARE DECISIS AND DEPENDENT INDIAN COMMUNITIES: A TEST OF JUDICIAL INTEGRITY

Alaska Law Review
Volume 16
Cited: 16 Alaska L. Rev. 37

CANONS OF CONSTRUCTION, STARE DECISIS AND DEPENDENT INDIAN COMMUNITIES: A TEST OF JUDICIAL INTEGRITY

DAVID M. BLURTON ^[*]

I. INTRODUCTION

II. FEDERAL INDIAN LAW CANONS OF CONSTRUCTION

III. STARE DECISIS

IV. APPLYING STARE DECISIS AND THE CANONS OF CONSTRUCTION OF FEDERAL INDIAN LAW TO STATE OF ALASKA V. NATIVE VILLAGE OF VENETIE TRIBAL GOVERNMENT

A. The Continuing Validity of the Canons

B. The Venetie Opinion Violates the Canons in its Interpretation of 18 U.S.C. 1151(b).

C. The Court's Erroneous Interpretation of ANCSA Violates the Canons

V. CONCLUSION

FOOTNOTES

This Article discusses the U.S. Supreme Court's failure to incorporate the Federal Indian law canons of construction into its recent decision in Alaska v. Native Village of Venetie Tribal Gov't. Although these canons have factored frequently into the Court's decisions on Indian law issues, and direct that courts treat Indian claims favorably in a number of situations, the Court does not consider such precedent in its Venetie decision. After tracing the development of the canons, this Article argues that stare decisis principles mandated that the Court refer to the canons when it was interpreting two statutes crucial to the Venetie decision. The Article concludes that the Court's Venetie decision violated the canons of construction, and that its failure to mention the canons in its decision leaves the Court open to accusations that its opinion was politically motivated.

I. INTRODUCTION

In February 1998, a unanimous United States Supreme Court held that lands received by the Native Village of Venetie pursuant to the Alaska Native Claims Settlement Act ("ANCSA") do not constitute "Indian country" within the meaning of 18 U.S.C. 1151(b). ^[1] A highly politicized case, the ultimate issue of whether the Venetie Tribal Government could exercise regulatory [*pg 38] (taxation) jurisdiction over the ANCSA lands depended on the Court's determination of whether the lands were Indian country. The politically charged nature of the case is evident from the amici curiae briefs submitted with regard to it. In support of the State's appeal of the decision by the United States Court of Appeal for the Ninth Circuit, twenty-five states joined together in filing an amicus curiae brief. ^[2] In turn, many Alaska Native organizations filed briefs in support of Venetie's position, and an amicus curiae brief was submitted jointly by the Navajo Nation, the Pueblo of Laguna, the Santa Ana Pueblo, the Shoshone Tribe of the Wind River Reservation, the Lummi Nation, the Rosebud Sioux Tribe, the Crow Tribe of Indians, and the Ute Indian Tribe. ^[3] Clearly, the ramifications of this decision extend beyond the territorial boundaries of the State of Alaska, and other state and tribal governments outside of Alaska see it as having significant political importance.

In arriving at a decision, the Court had to interpret two federal statutes dealing specifically with Indians. ^[4] The first, ANCSA, set aside forty-four million acres for Alaska Native corporations. ^[5] The second, 18 U.S.C. 1151, defines Indian country for criminal jurisdiction purposes and has been interpreted by the Court to pertain to civil jurisdiction as well. ^[6] Even though the decision revolves around the interpretation of these two statutes, the Venetie opinion does not invoke a single canon of statutory construction in interpreting the statutes in favor of the state. ^[7]

This absence of canons of statutory construction is perplexing since the statutes involve Indian law concepts, and federal Indian law includes several notable canons of construction. ^[8] These canons tend to lead to statutory interpretation in favor of Indian interests, [*pg 39] as Indian law scholar Charles F. Wilkinson advises students of Indian law:

If Indians are involved, you should infuse all federal laws, old and new, with the policy of the special Indian trust relationship and read those laws with a heavy bias in favor of Indian and tribal prerogatives. If the first reading does not produce a result in favor of the Indians, you should read the document again. And once again - with an inventive mind. ^[9]

Justice Thomas's opinion takes quite the opposite approach in arriving at a decision favorable to the State's interests, and appears deserving of the criticism leveled at the Court: "The Court's written opinions in statutory cases are often wooden or one-sided: The Court unrealistically asserts that all of the interpretive factors support the Court's interpretation or are at least neutral; very often the Court simply ignores those considerations that point in a different direction." ^[10] The Court's relatively recent tendency to ignore, in particular, Indian law canons of statutory construction has been noted and has caused one Indian law scholar to comment, "[W]ith the warning that it is always difficult to tell the degree to which canons of construction are being ignored, we might conclude that future statutory construction will tilt less towards the interests of the Indians and the tribes than it has in the past." ^[11]

It is very tempting to suggest that the Court's silence regarding Indian law canons of construction indicates that it has concluded the canons are no longer appropriate and should be discarded. However, since 1990 the Court has invoked or acknowledged the application of Indian law canons of construction a number of times. ^[12] Consequently, it is bewildering that the Vene- [*pg 40] tie opinion does not address the canons; especially since briefs for both petitioners and respondents addressed them, ^[13] and the canons were an integral part of the Ninth Circuit decision that the opinion reverses. ^[14]

The Court's failure to note federal Indian law canons of construction which it has applied repeatedly over a 150-year period, combined with the case's highly politicized nature raises the specter that the Court's decision was based on political rather than legal considerations. ^[15] When a minority tribal group's interests compete with the interests of a state, the principle of stare decisis should be adhered to scrupulously by the Court. ^[16] The Court should not deviate from principles of Indian law that it consistently has applied in the past.

Part II of this Article examines the development of the federal Indian law canons of construction and their appropriate application. Part III briefly considers the principle of stare decisis, and Part IV applies these concepts to State of Alaska v. Native Village of Venetie Tribal Government and argues that these principles mandated that the Venetie Court consider the Indian law canons of construction when making its decision. Part V concludes that the Court's failure to invoke these canons suggests that Venetie was a poorly decided case.

[*pg 41]

II. FEDERAL INDIAN LAW CANONS OF CONSTRUCTION

Worcester v. Georgia ^[17] generally is accepted as the genesis of the canons of construction for federal Indian law. ^[18] In his concurring opinion in that case, Justice M'Lean wrote that "[t]he language used in treaties with the Indians should never be construed to their prejudice," and "[h]ow the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction." ^[19] Although Justice M'Lean did not elaborate on these statements, it is apparent from their context that he believed the canon's basis was the disadvantaged bargaining position of the "unlettered" Indians in negotiating treaties with the United States. ^[20]

The Court voiced this justification in subsequent opinions, and clearly expressed it in 1899 in Jones v. Meehan ^[21] when it noted that with regard to construing treaties between the United States and Indian tribes, it must be kept in mind that

the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed . . . in the sense in which they would naturally be understood by the Indians. ^[22]

Although the Court's emphasis in Jones is upon the disadvantaged negotiating position of the Indians, its reference to Indians as "dependent people" represents an additional or alternative reason for developing the canons of construction favoring the Indians. ^[23] The trust or fiduciary relationship of the federal government with Indian tribes requires fairness in interpreting treaty terms.

[*pg 42]

In 1905, the Court noted in United States v. Winans ^[24] that the treaty is to be interpreted as the unlettered Indians understood it, and that "justice and reason" demand such when "power is exerted by the...