Tulsa Law Journal
Kristen A. Carpenter, Interpreting Indian Country in State of Alaska v. Native Village of Venetie, 35 Tulsa L.J. 73 (1999), available at https://scholar.law.colorado.edu/faculty-articles/607.
According to federal Indian law's canons of construction, statutes enacted for the benefit of American Indians and Alaska Natives must be liberally interpreted in their favor. But a doctrine of statutory interpretation presently challenges certain applications of the Indian canons. Announced by the Supreme Court in Chevron, U.S.A. v. Natural Resources Defense Council, Inc., the doctrine requires that courts defer to administrative agency interpretations of ambiguous language in statutes they are authorized to administer. In instances where agencies construe statutes against Indian interests, Chevron deference and the Indian canons dictate opposite results for a reviewing court. This conflict muddles Indian law jurisprudence, produces uncertainty among affected individuals and communities, and weakens the relationship between the federal government and Indian tribes.
The federal courts of appeal have split on the question of whether Chevron deference trumps the Indian canons. The Supreme Court has avoided opportunities, including the recent case of State of Alaska v. Native Village of Venetie to resolve the issue. In Venetie the Court considered whether land owned in fee simple by Alaska Native tribes, pursuant to the Alaska Native Claims Settlement Act (ANCSA), constituted Indian Country. If the tribal lands were Indian Country, the tribe would retain its authority to tax non-Indians doing business there. ANCSA itself did not describe whether such lands were Indian Country; the tribe urged the Court to interpret this silence as leaving tribal jurisdiction intact while the State argued the opposite. The State cited a Department of the Interior Solicitor's Opinion expressing the view ANCSA had abrogated Indian Country. Thus the case involved both an ambiguous statute affecting Indians and an agency interpretation contrary to Indian interests and thereby presented the question of whether the Indian canons trump Chevron deference. The Supreme Court, however, did not answer, or even discuss, this question when it held the ANCSA had generally extinguished Indian Country in Alaska, including in the Native Village of Venetie.
Examining the problem under three jurisprudential frameworks, this Article argues the Court should have rejected the Solicitor's Opinion on Indian Country's existence in Alaska, if it had reached the issue. First, as a matter of administrative law, the Solicitor's Opinion was an unauthorized, unpublished and informal agency interpretation. The Opinion, therefore, lacked the weight of law and could and was not binding on the courts: it had no claim to Chevron deference. Second, as a matter of federal Indian law, because the ANCSA is a statute enacted for the benefit of Indians and contains ambiguous language, courts must interpret it with the aid of the Indian canons. Under the Indian canons, Congressional silence could not have extinguished Indian Country, and the Solicitor's belief to the contrary was incorrect. Third, as a matter of indigenous Indian law, indigenous peoples must be meaning fully involved in lawmaking affecting them. Because the Solicitor's Opinion deeply affected Alaska Natives but failed to incorporate Alaska Native interpretations of Indian Country under ANCSA, it violated indigenous Indian law, and should not have informed the Court's decision.
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