On June 28, 2024, the Supreme Court issued its long-awaited decisions in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce—overruling the 40-year-old Chevron doctrine. The opinion is likely to set off a wave of litigation across multiple areas of the law. However, it remains an open question of how drastic an impact this decision will have on tribal interests. Because the Indian canon of construction already requires construing ambiguous statutes in favor of tribes, the end of Chevron deference may have less impact in the Indian law context than in other areas. But time will tell if Chevron was doing work above and beyond that of the Indian canon.
Background
The Court’s 1984 decision in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., established a foundational doctrine where courts should defer to reasonable agency interpretations of acts of Congress.1 Chevron set forth a two-step analysis. First, a court must ascertain “whether Congress has directly spoken to the precise question at issue”.2 If it has, then that is the end of the inquiry, and the court must follow the intent of Congress. Second, if the court finds the text of the statute silent or ambiguous as to the specific issue at hand, the court must defer to a reasonable agency interpretation.3
Two cases this term concerned challenges to a rule issued by the National Marine Fisheries Service, which required commercial fishing companies to pay the costs of government-mandated observers who monitor compliance with fishery management plans. Both the DC Circuit and the First Circuit upheld the rule under Chevron as a reasonable interpretation of the Magnuson-Stevens Act.
The Supreme Court granted certiorari limited to a single question: Whether to overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.4
Loper Bright Enterprises/Relentless
In a 6-3 decision5 authored by the chief justice, the Court ended the 40-year tenure of Chevron.
The Court first emphasized the framers’ vision that the final “interpretation of the laws” would be “the proper and peculiar province of the courts”.6 Accordingly, the framers structured the Constitution to allow judges to exercise their judgment independent of influence from the political branches. In Marbury v. Madison, the Court embraced the framers’ understanding of the judicial function.
Congress opted to codify, in the Administrative Procedure Act (APA), “the unremarkable, yet elemental proposition”—dating back to Marbury—that courts must decide “all relevant questions of law” by applying their own judgment.7 In the majority’s view, Chevron—and in particular, Chevron’s presumption that statutory ambiguities are implicit delegations to agencies—cannot be squared with the APA.
Agencies have no special competence in resolving ambiguities in statutes, according to the majority.8 The framers anticipated and expected that courts would confront—and resolve—statutory ambiguities by exercising their own independent legal judgment. While an agency’s specific expertise may be informative, the agency’s interpretation of a statute cannot bind an article III court.
Impact on Recent BIA Actions
Most immediately, the Court’s decision may impact the Biden administration’s critical interpretations of Indian law statutes. The fate of these interpretations—which already are subject to scrutiny and will face or are facing significant court challenges—is more uncertain in the absence of Chevron.
Relevant interpretations include:
- The criteria issued this year that the Department of the Interior uses to review Class III Tribal-State Gaming Compacts.9
- The criteria issued last year that the Department of the Interior uses in adjudicating tribes’ requests to have land taken into trust, including the presumption that land acquisitions will benefit tribal interests.10
- The Department of the Interior’s 2022 M-Opinion concluding that Section 5 of the Indian Gaming Regulatory Act (IRA)11 and Section 1 the Alaska IRA12 authorize the secretary of the interior to take land into trust for Alaska Natives and Alaska Native villages.13
Impact on Future Tribal Cases
Looking forward, the impact of the Court’s decision in the Indian law context may end up being muted. To be sure, anti-tribal interests will likely jump on this development to challenge agency interpretations like those discussed above. But, while the end of Chevron is a seismic shift for many areas of the law, Indian law is owed special treatment. Regardless of Chevron, the Indian canon of construction requires construing statutes in favor of tribal interests. Thus, it is possible Chevron’s death will not substantially impact the interpretation of Indian law statutes: when an agency interprets an Indian law statute in a way that benefits tribes, the Indian canon will still compel a reviewing court to adopt that interpretation, irrespective of deference. And when an agency interprets an Indian law statute in a way that harms tribes, the Indian canon will require a court to reject that interpretation. Indeed, many courts held that the Indian canon trumped agencies’ anti-tribal interpretations of Indian law statutes even under the Chevron regime.14
Moreover, to the extent agencies have already interpreted statutes in favor of tribes, court decisions upholding such interpretations may remain valid even after Loper Bright Enterprises/Relentless. In striking down Chevron, the Court emphasized that its decision “do[es] not call into question prior cases that relied on the Chevron framework”.15 That is because “the specific holdings of those cases that specific agency actions are lawful . . . are still subject to statutory stare decisis despite [the Court’s] change in interpretive methodology”.16 Thus, agency interpretations of Indian law statutes that have already stood the test of judicial review may continue to do so going forward.17
That said, at this very early stage any predictions about the implications for tribes are necessarily tentative. Those opposed to tribal interests will surely insist that the Indian canon alone does less than the Indian canon and Chevron did when working together. Some have already questioned whether interpretations previously upheld under Chevron will really survive future challenges.18 The only thing that is sure is that the implications of Chevron’s demise for tribal interests will be litigated for years to come.
Footnotes
[1] 467 U.S. 837 (1984).
[2] Id. at 842.
[3] Id. at 843.
[4] See Relentless, Inc. v. Dep’t of Com., 144 S. Ct. 325 (2023); Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023).
[5] Because Justice Jackson was recused from Loper Bright, the Relentless decision (which included Justice Jackson) was 6-3 and the Loper Bright decision (which excluded Justice Jackson) was 6-2.
[6] Loper Bright Enters. v. Raimondo, Nos. 22-451 & 22-1219, --- S. Ct. ----, 2024 WL 3208360, at *9 (June 28, 2024).
[7] Id. at *12.
[8] See id. at *16.
[9] See generally Class III Tribal Gaming Compacts, 89 Fed. Reg. 13232 (Feb. 21, 2024).
[10] See generally Land Acquisitions, 88 Fed. Reg. 86222 (Dec. 12, 2023).
[11] 25 U.S.C. § 5108.
[12] Id. § 5119.
[13] See generally U.S. Dep’t of the Interior, M-37076, The Secretary’s Land into Trust Authority for Alaska Natives and Alaska Tribes Under the Indian Reorganization Act and the Alaska Indian Reorganization Act (Nov. 16, 2022).
[14] E.g., Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461–62 (10th Cir. 1997).
[15] 2024 WL 3208360, at *21.
[16] Id.
[17] E.g., Confederated Tribes of Grand Ronde Cmty. of Ore. v. Jewell, 830 F.3d 552, 558–63 (D.C. Cir. 2016) (upholding under Chevron the Department of the Interior’s construction of the phrase “now under federal jurisdiction” in the IRA).
[18] See Loper Bright Enters., 2024 WL 3208360, at *52 (Kagan, J., dissenting).
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