Construing Treaties Strictly

Regardless of what you think of industrial hemp cultivation, United States v. White Plume is a classic example of how federal courts say they construe Indian treaties liberally, but actually construe them narrowly.

The petitioners in White Plume argued that, during the negotiations of the 1868 Treaty of Fort Laramie, Indian farmers cultivated hemp. As such, the treaty allowed the cultivation of hemp today. The court's response:

Appellants further argue that the Treaty gives the White Plumes a right to grow hemp. The Treaty between the United States and the Tribe provided in part that if any head of a family within the Tribe wished to farm, the government would provide them with a tract of land, as well as seeds and agricultural implements for the first year. Appellants assert that because hemp was either grown by Indian tribes or its cultivation was being encouraged by the United States government at the time of the signing of the Treaty, language guaranteeing farming support to the Tribe means the Treaty contemplated all kinds of farming, including hemp. Regardless of the historical accuracy of the assertion that the federal government encouraged hemp growing when the Treaty was signed, the plain language of the treaty merely refers to "farming"-it mentions nothing about farming hemp. Indian treaties are to be interpreted liberally in favor of Indians, and any ambiguities are to be resolved in their favor. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 200 (1999). The record does not support an assertion that the Treaty is ambiguous as to whether it contemplated the growing of hemp by the Tribe.
Under statutory interpretation, a statute is ambiguous if it is " 'capable of being understood in two or more possible senses or ways." ' Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001) (quoting Webster's Ninth New Collegiate Dictionary 77 (1985)). The language of the Treaty as written is not ambiguous on the matter of farming hemp because the Treaty is not written in the context of permitting the cultivating of particular crops. Rather, the Treaty simply provides for government assistance should members of the Tribe choose to farm. Given that the CSA prohibits the cultivation of marijuana without a DEA registration, and given that "the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States ... shall extend to the Indian country," the White Plumes may not cultivate hemp without a DEA registration, and the Treaty does not reserve any such right.

This is how Indian treaties are construed. The court adopts what contracts teachers refer to as the "four corners" rule -- if the language of the document is plain, then the court may not refer to outside sources or evidence to seek out ambiguity.

But the four corners rule, as any contracts teacher can tell you, is a mostly empty vessel. Courts generally allow for the introduction of extrinsic evidence provisionally to determine whether what appears to be plain language may in fact be ambiguous. E.g. Evergreen Investments, LLC v. FCL Graphics, Inc., 334 F.3d 750, 756 (8th Cir. 2003) (construing Illinois law). And the White Plume petitioners alleged that the United States encouraged the Lakota people to farm hemp. Appellants' Brief at 33. Maybe they couldn't prove it, but the federal courts appear not to care.

So, although the Eighth Circuit will cite Mille Lacs for the proposition that they construe Indian treaties liberally, they actually adopt a stricter rule of construction for Indian treaties than they do for simple contracts. Hmmm.