Academic journal article Harvard Law Review

Indian Canon Originalism

Academic journal article Harvard Law Review

Indian Canon Originalism

Article excerpt

Indian treaties are "quasi-constitutional" documents. (1) So why not read them like constitutions? In fact, scholars of Indian law have urged federal judges to interpret Indian treaties "in the same manner as [they do] constitutional provisions." (2) But no scholar has ever explained how the principles of constitutional interpretation would actually apply to an Indian treaty--and whether those principles might change in that new environment. This Note attempts to do just that.

In constitutional interpretation, there is a "long history" of debate over the appropriate role for the "original meaning" of the text. (3) Originalists believe that the "discoverable meaning of the Constitution at the time of its initial adoption [should be] authoritative for purposes of constitutional interpretation in the present," (4) while nonoriginalists would also consider the document's contemporary meaning, judicial precedent, morality, fundamental social values, civic interests, and so on. (5) Surprisingly, however, this stormy dispute has yet to reach the shores of federal Indian law.

The most likely reason for the tranquility is that the federal courts long ago established a special method for interpreting Indian treaties: the Indian canon of construction, (6) first announced by the Supreme Court in 1832. (7) The Indian canon instructs judges to abandon the usual rules of statutory construction in Indian law matters. (8) "The language used in treaties with the Indians should never be construed to their prejudice ... How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction." (9) Because judges applying the Indian canon interpret treaty language based on the tribe's perspective, rather than that of "a reasonable speaker of English ... at the time the ... provision was adopted," (10) this fundamental principle of Indian law may have simply seemed incompatible with originalist methodology.

This Note is an attempt to rebut that assumption. It will demonstrate that, far from being incompatible with the Indian canon, originalist theory actually justifies it: a treaty should be read as the tribe would have understood it because this method reflects the most faithful application of the original meaning of the treaty text. (11) First, Part I presents background on the Indian canon. Next, Part II draws a framework for comparison between the Indian canon and originalist methodology by tracing the two dimensions across which Indian treaty interpretation takes place: the dimension of time and the dimension of culture. Part III then demonstrates that the Indian canon, just like originalism, traverses the temporal dimension of interpretation by assigning authoritative significance to the understanding of the treaty text at the time of its enactment. However, Part IV acknowledges that the Indian canon departs from originalist methodology in regard to the cultural dimension--the canon favors the tribe's understanding of the treaty while originalism looks to the public meaning of the Constitution's text. Nevertheless, this Part argues that the principles of originalist theory, as applied in the unique context of an Indian treaty, justify the Indian canon's deviation from traditional originalist methodology. Finally, the Note concludes with the suggestion that recognizing "Indian canon originalism" as a form of ordinary originalism would provide stronger theoretical footing for a revitalized Indian canon.


Chief Justice Marshall announced the Indian canon of construction in his landmark 1832 opinion in Worcester v. Georgia. (12) The case required the Court to interpret the Cherokee Nation's treaties with the federal government, particularly the Treaty of Hopewell of 1785, (13) in order to determine if the tribe had surrendered its inherent sovereignty and power of self-government to the United States. …

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