Alaska v. Native Village of Venetie, 101 F.3d 1286 (9th Cir. 1996), cert. granted, 117 S. Ct. 2478 (1997).
Congressional pronouncements in the area of Indian law have often been both sweeping and contradictory.(1) To clear away some of the resulting confusion, the Supreme Court has adopted canons for construing these acts: Most importantly, ambiguous statutes and treaties are interpreted in favor of the tribes.(2) In Alaska v. Native Village of Venetie,(3) the Ninth Circuit applied this canon in interpreting the Alaska Native Claims Settlement Act (ANCSA),(4) determining that Alaska's native villages qualify as "Indian country."(5) This Case Note will show that the court's reliance(6) on the canon of construction was misplaced. The most consistent interpretation of recent Supreme Court precedent involving the canon indicates that it does not apply to the ANCSA.
In general, courts can either rely on canons of construction to determine cases or reject them by claiming that legislative intent is unambiguous.(7) The Supreme Court has taken both approaches with the canon favoring tribal litigants, producing a body of apparently inconsistent law(8) despite dicta asserting that the canon applies equally to all cases involving tribal litigants.(9)
Most of the major recent Supreme Court cases involving statutory analysis of Indian law, however, can be read consistently if the canon is interpreted to apply only when Congress acted in its role as tribal trustee.(10) The rationale for the canon, after all, arises from the trust relationship, as embodied in the conception that the federal government holds lands on behalf of the tribes and must manage these lands for the tribes' benefit.(11)
For example, in County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation,(12) Congress had passed the relevant statute in its role as trustee, and the canon was strictly applied. The case involved a provision of the 1887 General Allotment Act (GAA),(13) which provided for the distribution of reservation lands to individual tribal members. Although Congress may not have been acting with the best interests of the tribes at heart,(14) it was still technically acting as trustee, because the federal government held the land in trust and Congress determined its distribution. The Court interpreted a GAA provision stipulating that, after the trust period expired, "all restriction as to sale, incumbrance, or taxation of [the] land shall be removed."(15) Holding initially that this provision meant what it said, the Court upheld the state's ad valorem tax on the land.(16) Subsequently, however, it applied the canon in finding that the statute did not allow an excise tax: "[O]ur choice between [two constructions] must be dictated by a principle deeply rooted in this Court's Indian jurisprudence: `Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.'"(17)
Similarly, the Court gave the canon significant weight in construing a statute involving mineral development on tribal lands. Congress acted in its capacity as a trustee when it established rules to open Indian lands to non-Indian mining in 1891,(18) as well as when it modified those rules in 1924 and 1938.(19) The Court accordingly strictly applied the canon in Montana v. Blackfeet Tribe(20) when charged with deciding whether the 1924 provision permitting state taxation of the tribal royalties from the mineral leases survived the 1938 revisions. Even though neither the 1938 legislation nor its legislative history mentioned taxation,(21) the Court held that Congress's failure specifically to reauthorize taxation of tribal royalties prevented the state from taxing leases issued under the new statute. In reaching this conclusion, the Court repeatedly emphasized the canon, which appeared to be the determining factor in its decision.(22)
In contrast, when the Court has interpreted statutes passed outside the trust relationship, it has been less solicitous of the canon. The Court virtually ignored the canon, for example, when interpreting the Buy Indian Act(23) in Andrus v. Glover Construction Co.(24) Although Congress intended the statute to benefit tribes, it did not act as their representative; the legislation was primarily a jobs program.(25) The case involved a close and complex reading of the interplay of two statutes,(26) and thus would appear to have offered a perfect opportunity for the Court to use the canon of construction to avoid a knotty analytic problem. The Court dismissed the canon, however, with only a passing reference in the last sentence of its opinion.(27)
Nor was the trust relationship implicated when Congress "simply wished to build a dam."(28) Consequently the canon was not applied when Indian land was taken for that purpose.(29) In this instance, Congress was not acting as a tribal representative; the takings were effected as if the tribe had been a private individual. The Court therefore held that a clause of the statute providing that the land was open to public use abrogated the tribe's right to exclude non-Indians.(30) Although the majority opinion mentioned the canon,(31) strict application of it would have dictated the opposite result.
In sum, the cases illustrate a general, if unacknowledged, trend in recent opinions reinforcing the logic behind the canon's support of...