Textualism and the Indian Canons of Statutory Construction

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 Indian Affairs. Through examining the modern line of Supreme Court cases involving statutory or treaty interpretation relating to Indian nations, 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, the tribal sovereignty canon, requires clear intent to interfere with tribal sovereign rights; the other, the Indian ambiguity canon, 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 using the tribal sovereignty and Indian ambiguity canons. First, these canons have constitutional roots, and as such, even textualists on the Court should not be reluctant to use them. Second, the more established canon concerning abrogation of tribal sovereign immunity should also extend 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

Towards a Balanced Approach for the Protection of Native American Sacred Sites

Protection of sacred sites is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one\u27s ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general applicability alleged to have substantially burdened free exercise rights. In a controversial 2008 decision, the Ninth Circuit held that a substantial burden under RFRA is only imposed when individuals are either coerced to act contrary to their religious beliefs or forced to choose between following the tenets of their religion and receiving a governmental benefit. In all likelihood, such a narrow definition of substantial burden will prevent Native American practitioners from successfully invoking RFRA to protect their sacred sites. In this Article, I first explore whether the Ninth Circuit\u27s definition of substantial burden is mandated under RFRA. To a large degree, this question comes down to whether a pre-RFRA Supreme Court decision, Lyng v. Northwest Indian Cemetery, precludes courts from adopting a broader definition of what is a substantial burden under RFRA. Although this Article contends that neither Lyng nor RFRA precludes the adoption of a broader definition of substantial burden, the Article nevertheless acknowledges that many judges may disagree. The Article therefore recommends enactment of a legislative solution. The legislation proposed is a compromise between the needs of Indian religious practitioners and those who argue that religious practitioners should not have a veto over how federal lands are used and developed. Therefore, in return for the broadening of what can constitute a substantial burden on free exercise rights, the Article recommends the adoption of an intermediate type of judicial scrutiny. The Article also discusses ways to limit what can be considered sacred sites under the legislation so as to ensure protection of sites vital to Native American culture and religion without unnecessarily burdening federal management of federal lands

Towards a Balanced Approach for the Protection of Native American Sacred Sites

Protection of sacred sites is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one\u27s ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general applicability alleged to have substantially burdened free exercise rights. In a controversial 2008 decision, the Ninth Circuit held that a substantial burden under RFRA is only imposed when individuals are either coerced to act contrary to their religious beliefs or forced to choose between following the tenets of their religion and receiving a governmental benefit. In all likelihood, such a narrow definition of substantial burden will prevent Native American practitioners from successfully invoking RFRA to protect their sacred sites. In this Article, I first explore whether the Ninth Circuit\u27s definition of substantial burden is mandated under RFRA. To a large degree, this question comes down to whether a pre-RFRA Supreme Court decision, Lyng v. Northwest Indian Cemetery, precludes courts from adopting a broader definition of what is a substantial burden under RFRA. Although this Article contends that neither Lyng nor RFRA precludes the adoption of a broader definition of substantial burden, the Article nevertheless acknowledges that many judges may disagree. The Article therefore recommends enactment of a legislative solution. The legislation proposed is a compromise between the needs of Indian religious practitioners and those who argue that religious practitioners should not have a veto over how federal lands are used and developed. Therefore, in return for the broadening of what can constitute a substantial burden on free exercise rights, the Article recommends the adoption of an intermediate type of judicial scrutiny. The Article also discusses ways to limit what can be considered sacred sites under the legislation so as to ensure protection of sites vital to Native American culture and religion without unnecessarily burdening federal management of federal lands