University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2013 Never Construed to Their Prejudice: In Honor of David Getches Richard B. Collins University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Indian and Aboriginal Law Commons, Legal History Commons, Legislation Commons, and the Supreme Court of the United States Commons Citation Information Richard B. Collins, Never Construed to Their Prejudice: In Honor of David Getches, 84 U. COLO. L. REV. 1 (2013), available at https://scholar.law.colorado.edu/articles/113. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 84 U. Colo. L. Rev. 1 2013 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Fri Feb 24 13:16:43 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. UNIVERSITY OF COLORADO LAW REVIEW Volume 84, Issue 1 2013 NEVER CONSTRUED TO THEIR PREJUDICE: IN HONOR OF DAVID GETCHES RICHARD B. COLLINS* This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. Recent Supreme Court decisions restrictingtribal sovereignty show significant weakening of the canons. INTRODUCTION ............................................... 2 I. A BRIEF HISTORY................3..........3 II. THE TREATY CANON .......................... ........ 5 A. Origin and Theory.............................5 B. Applications to Disputes with State and Private Interests .......................... ............... 9 C. Applications to Disputes with the Federal Government ............................ ..... 12 III. THE STATUTORY CANON ..................... ..... 20 * Professor, University of Colorado Law School. Many thanks to organizers of A Life of Contributionsfor All Time: Symposium in Honor of David H. Getches for inviting me to submit this paper in absentia during my sabbatical leave. Amber B. Widgery, Colorado class of 2014, provided valuable research assistance. Thanks also to the editors of the University of Colorado Law Review for a thorough and careful editing process. 2 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 84 A. Origin and Theory.........................21 1. Paternalism .............................. 23 2. The Federal Trust Relationship . .............. 23 3. The Democratic Deficit ..................... 25 B. Application to Disputes with State or Private Parties ..................................... 28 C. Application to Disputes with the Federal Government..............................33 1. Remedy.................................33 2. Damages for Land.........................35 3. Original Indian Title ....................... 38 4. Executive Order Reservations.................42 5. Damages for Breach of Trust................42 IV. TRIBAL SOVEREIGNTY'S SETBACKS SINCE 1975 ............ 44 A. Reservation Diminishment ................... 46 B. Tribal Jurisdiction Over Nonmembers...... ..... 50 C. Divesture, Democracy, and the Canons .......... 55 CONCLUSION ....................................... 56 INTRODUCTION Numerous judicial opinions recite that ambiguities in treaties with Indian nations and in federal statutes relating to Indians and tribes should be interpreted in their favor.1 Can these canons be justified? If they can, have they mattered? The treaty canon has strong theoretical support in contract law and the law of treaty interpretation, domestic and international. 2 By resolving unclear wording in tribes' favor, the rule has effectively helped tribes to preserve their resources and sovereignty over their members against opposing private and state interests.3 However, the Supreme Court has ignored the canon in recent rulings divesting tribes of jurisdiction over nonmembers in tribal territory. 4 In addition, the treaty rule has been much less effective in disputes between tribes and the federal government. The Supreme Court dishonored it in major decisions denying constitutional protection of tribal land 1. See NELL JESSUP NEWTON ET AL., COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 2.02[1] (2005) [hereinafter 2005 COHEN]. 2. See infra Part II.A and text accompanying notes 24-38. 3. See infra Part II. B. 4. See infra Part IV.B. 2013] NEVER CONSTRUED TO THEIR PREJUDICE 3 ownership. 5 Theoretical grounding for the statutory canon is less clear. The statutory rule is supported by the trust relationship between the United States and the Indian nations arising from treaties, but the extent of the government's trust duties is contested and uncertain. 6 The canon is also supported by democratic theory. Until recently, when Congress imposed laws on Indian country, it lacked any normal political restraint. However, application of general federal laws to Native Americans may differ according to context. Some laws uniquely impact Indians and Indian tribes and thus lack political restraint. Other laws apply alike to Indian interests and to those of other citizens and governments and are subject to normal democratic forces. 7 Like its treaty counterpart, the statutory canon has effectively helped tribes in disputes against private and state interests.8 But again, the rule has been much less effective against the federal government. Decisions defining remedies for taking tribal land and other resources have often been stingy or nonexistent. 9 The next section is a brief history of the two canons. The two sections that follow discuss the origins, theory, and applications of both canons, first the treaty rule, then its statutory counterpart. To highlight significant differences, discussions of the canons' applications address disputes between Native Americans and state or private interests separately from disputes between Indians and the federal government. The article's fourth section addresses the canons' deteriorating force in Supreme Court decisions since 1975. I. A BRIEF HISTORY Native American rights and obligations arise from treaties, federal statutes, and the Constitution itself. 10 It follows that 5. See infra Part II.C. 6. See infra Part III.A and text accompanying notes 130-44. 7. See infra Part III.A and text accompanying notes 145-61. 8. See infra Part III.B. 9. See infra Part III.C. 10. U.S. CONST. art. I, § 2, cl. 3; U.S. CONST. art. I, § 8, cl. 3; U.S. CONST. amend. XIV, § 2; 2 CHARLES J. KAPPLER, INDIAN AFFAIRS: LAWS AND TREATIES (1904); 25 U.S.C. §§ 1-4307 (2006). Early Supreme Court opinions applied inter- national law to interpret Indian treaties, and in recent years, Native Americans have made modern international law claims. See 2005 COHEN, supra note 1, § 4 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 84 interpretation of federal laws is a paramount concern of Indians and tribes, and of others who interact with them. Prior to 1959, interpretation was mostly administrative, left to the Bureau of Indian Affairs and other federal agencies, and in some contexts to the tribes themselves.II But occasional judicial opinions since the Marshall Court have reasoned that ambiguous treaties with tribes should be interpreted in their favor. 12 When Felix Cohen and his Interior team organized federal Indian law in 1941, they generalized the treaty cases into a "cardinal rule."1 3 The Cohen Handbook applied the same rule to federal statutes that ratify agreements with tribes made after treaty making ended. 14 The treatise did not address whether ambiguities in other federal statutes should be interpreted in favor of Indian rights; at the time it was published, only one important Supreme Court decision had relied on such a rule. 1 When the Interior Department published its vulgate version of the treatise in 1958, its statement of the interpretive rule for treaties and treaty equivalents was unchanged, and nothing was added on statutory interpretation.16 Thereafter, judicial opinions that recited a statutory rule became more common, and by the time 5.07. The early decisions are sound precedents, but neither the Supreme Court nor Congress appear likely to embrace the modern movement for the foreseeable future. For discussion of the subject, compare Philip P. Frickey, Domesticating Federal Indian Law, 81 MINN. L. REV. 31, 78-79 (1996) (advocating reliance on international law), with Alex Tallchief Skibine, The Dialogic of Federalism