Also known as the Indian canon of statutory interpretation
or the Indian canon of construction
In 1832, Justice Marshall of the United States Supreme Court wrote, in Worcester v Georgia:
"The language used in treaties with the Indians should never be construed to their prejudice."
In Carpenter v Shaw, Justice Stone wrote that in the interpretation of agreements between Indians and the government:
"Such provisions are to be liberally construed. Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith."
Note, however, this statement by Justice White of the Supreme Court of the United States, to which two other judges subscribed, in Montana v Blackfeet Tribe:
"I am mindful of the general rule that statutes are to be liberally construed in favor of Indian tribes. But more to the point, to my way of thinking, is the proposition that this rule is no more than a canon of construction, and a canon of construction is not a license to disregard clear expressions of congressional intent."
In Colorado River Indian Tribes, Justice Bates of the United States District Court (District of Columbia), wrote:
"The Indian canon of statutory interpretation ... only has a role in the interpretation of an ambiguous statute. Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit....
"When the statutory language is clear, as it is here, the canon may not be employed."
In Ho-Chunk Nation, Justice Patrick Crooks of the Supreme Court of Wisconsin did not find it necessary to apply the canon because the statute was not ambiguous. But he did incorporate these words at ¶31 (arguably as obiter dicta):
"Under the Indian canon of construction, statutes passed for the benefit of dependent Indian tribes are to be liberally construed, with doubtful expressions being resolved in favor of the Indians."
- Carpenter v. Shaw, 280 US 363 (1930)
- Colorado River Indian Tribes v National Indian Gaming Commission, 383 F. Supp. 2d 123 (2005)
- Clanahan v. Arizona Tax Commission, 411 US 164 (1973)
- Ho-Chunk Nation v. Wisconsin Department of Revenue, 766 NW 2d 738 (2009)
- Montana v. Blackfeet Tribe, 471 US 759 (1985)
- Worcester v. Georgia, 31 US 515 (1832)