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Gregory Ablavsky, Seth Davis, Patty Ferguson-Bohnee et al., Brief of Legal Scholars as Amici Curiae in Support of Respondents, Becerra v. San Carlos Apache Tribe, Becerra v. Northern Arapaho Tribe, U.S. Supreme Court Docket Nos. 23-250 & 23-253 (2024).

Abstract: Congress has enacted into law thousands of statutory provisions containing rules of construction. These rules direct courts to the permissible interpretations of the statutes that Congress enacts. With respect to the self-determination contracts between Indian tribes and the United States at issue in these cases, the Indian Self-Determination and Education Assistance Act (ISDA) prescribes two interpretive rules that serve as congressional directives to this Court. First, each provision of the self-determination contract must be construed liberally for the benefit of the tribe. Second, the same is true of the statute itself: each provision of the ISDA must be construed liberally for the benefit of the tribe. The ISDA’s interpretive rules were intended to ensure agency compliance with Congress’s policy to promote tribal self-determination and are consistent with well-established rules guiding interpretation of treaties, agreements, and statutes that address Indian affairs and implement the United States’ unique responsibilities to Indian tribes. Congress enacted these rules in response to the executive branch’s repeated cramped readings of the relevant provisions of law and the resulting failures to ensure adequate federal financial support for tribes’ self-determination contracts. The parties here agreed to these rules as part of their contracts, and Congress codified these rules in the ISDA, as it has codified substantially identical rules for other agreements between tribes and the United States under other parts of the ISDA. Under ordinary principles of both contractual and statutory interpretation, these rules control in these breach-of-contract cases. The goal of interpretation— whether of a contract or statute—is to discern the authors’ intent from the written text. The plain text of the contracts and statute makes clear the parties’ and Congress’s intent regarding how the terms of their agreement and the applicable provisions of law are to be construed. As this Court has previously explained in a similar case, to prevail under these rules of construction, the government must demonstrate that its reading “is clearly required by the statutory language.” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 194 (2012). The government has made no such showing here. Instead, its arguments seek to bypass the ISDA’s text and read into the statute and contracts restrictions on the government’s financial-support obligations that are based solely on inferences drawn against Indian tribes. Congress gave no indication, much less a clear one, that any of the government’s suggested inferences should be drawn. And adopting such inferences would require this Court to disregard Congress’s unequivocal directives to construe each provision of the ISDA and self-determination contract liberally in the tribe’s favor. Applying the ISDA’s rules of construction is consistent with longstanding principles of federal Indian law and congressional and judicial practice in other statutory contexts. In the context of federal Indian Law, the Indian canon already requires liberal construction of the ISDA and the agreements as a matter of the United States’ trust responsibility and duty of protection to Indian tribes. The canon’s well-settled application to agreements between the United States and tribes and to statutes affecting their interests further supports enforcement of these express congressional rules. Congressionally mandated provisions telling courts to construe a provision liberally in favor of one party are a familiar feature of government contracting law. Federal courts have similarly applied Congress’s rules of construction in cases concerning the Employee Retirement Income Security Act, the Federal Arbitration Act, the Religious Land Use and Institutionalized Persons Act, the Miller Act, and numerous other statutes. Moreover, these are breach-of-contract cases in which the Court is construing statutory provisions incorporated into a contract. It is commonplace to enforce contractual provisions setting forth rules of interpretation, just like courts enforce any other provision of a contract. Indeed, that is precisely what this Court did in Salazar. It is unexceptional thus that the ISDA—a law authorizing and governing a specific type of government contracting with tribes—directs a liberal construction of those contracts for tribes’ benefit. The Court should enforce the ISDA’s rules of construction and affirm the decisions below in respondents’ favor.