Textualism and the Indian Canons of Statutory Construction

33 Pages Posted: 29 Mar 2021 Last revised: 20 Apr 2021

See all articles by Alexander Tallchief Skibine

Alexander Tallchief Skibine

University of Utah - S.J. Quinney College of Law

Date Written: March 26, 2021


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.

Suggested Citation

Skibine, Alexander Tallchief, Textualism and the Indian Canons of Statutory Construction (March 26, 2021). University of Michigan Journal of Law Reform, Forthcoming, University of Utah College of Law Research Paper No. 435, Available at SSRN: https://ssrn.com/abstract=3813569

Alexander Tallchief Skibine (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics