Throw Out All the Canons?

Yesterday the Supreme Court heard oral arguments in Ysleta del Sur Pueblo v. TexasA case concerning Indian Tribes’ authority to regulate gambling activities on Indian lands. It is mostly a case of statutory interpretation. This includes whether Texas cannot enforce gaming regulations on tribal land.

This case concerns Indian territory. It is therefore questionable whether the Court should adopt a substantive standard of construction to clear up ambiguities in favor Indian tribes. Justice Kagan asked broader questions regarding the construction of substantive canons (as opposed semantic).

The transcript is available here:

JUSTICE KAGAN – I am about to move you out of the case scope, so I am sorry
beforehand. Justice Alito brought up an intriguing question. I have been wondering a lot about these substantive canons and how they are defined.

Of course, they’re everywhere. They’re not limited to the Indian canon. Next week
We’ll be focusing on the so-called major questions canon. Other canons exist.

You’ll see a lot of these canons in Justice Scalia’s book. Some are helpful to the government. Some of them are harmful to the government.

Does the government have any other way of saying “How do we?”
How can we reconcile our differing views on all these types of canons. You might just have to throw them all away. . . .

You know what I mean? I believe we ought to, honest. What are we actually doing? Is there — can you see, for example, which canons you should be talking about in your briefs, and which canons you shouldn’t?

MR. YANG (Well, our briefs usually deal first with the text.
We’ve achieved this. Canons are able to play an essential role in specific contexts. Bryan, I believe, recognized the importance of the principle of Indian tribal sovereignty. It kind of supports the entire body of law.

Not wanting to be required to review statutes granting state regulatory authority over tribal lands
It is difficult to express that clearly. These types of principles are a reflection of the background law one has when reading statutes.
You know what? I do believe that I saw the Court’s ruling that canons sometimes conflict in opposite directions. These aids in interpretation are not meant to replace the text.

Throw out all the Canons! published the article originally.