Canons of Construction

Ambiguities are to be resolved in favor of the Indian nations.

• • contract-oriented interpretive bias to remedy structural bias

    • • "The United States drew up this contract, and we normally construe any ambiguities against the drafter who enjoys the power of the pen." Washington v. Cougar Den (2019)

Treaties are to be interpreted as the Indian signatories would have understood them.

• • a mode of originalism requiring research and consultation

    • • "The language of the treaty should be understood as bearing the meaning that the Yakamas understood it to have in 1855." Washington v. Cougar Den (2019)

      • "Considering the terms of the 1868 Treaty as they would have been understood by the Crow Tribe, we conclude that the creation of Bighorn National Forest did not remove the forest lands, in their entirety, from the scope of the treaty." Herrera v. Wyoming (2019)

Indian treaties are to be liberally construed in favor of the Indian nations.

• • account for context and obligations

    • • "It is our responsibility to see that the terms of the treaty are carried out, so far as possible . . . in a spirit which generously recognizes the full obligation of this nation to protect the [Indian] interests." Tulee v. Washington (1942)

      • "Treaty rights are to be construed in favor, not against, tribal rights." McGirt v. Oklahoma (2020)

Rights not surrendered are necessarily reserved.

• • Don’t drive away in the truck!  And don't sink the boat!

    • • "The treaty was not a grant of rights to the Indians, but a grant of rights from them -- a reservation of those not granted. " US v. Winans (1905)