Thomas, J., concurring
should be construed against the drafting party. See, e.g., Patterson v. Jenks, 2 Pet. 216, 229 (1829); Worcester v. Georgia, 6 Pet. 515, 552 (1832); The Kansas Indians, 5 Wall. 737, 760 (1867); Restatement (Second) of Contracts §206 (1979); Restatement (First) of Contracts §505 (1932). These canons then “jumped without discussion from the interpretation of treaties to the interpretation of statutes” in the 20th century. A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 152 (2010). To this day, it remains unclear how the “trust relationship” could justify freestanding pro-Indian canons that authorize courts to depart from the ordinary rules of statutory interpretation.
Next, the Court has also suggested that the “trust relationship” provides the Federal Government with an additional power, not enumerated in the Constitution, to “do all that [is] required” to protect Indians. Morton v. Mancari, 417 U. S. 535, 552 (1974) (internal quotation marks omitted); see also Board of County Comm’rs v. Seber, 318 U. S. 705, 715–716 (1943). In doing so, the Court has apparently used the trust relationship to feed into the so-called plenary power that Congress supposedly enjoys over Indian affairs. But the Court has also approved the use of that power to, among other things, restrict tribal sovereignty and “eliminate tribal rights.” See South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 343 (1998); Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 501 (1979); Haaland, 599 U. S., at ___ (Thomas, J., dissenting) (slip op., at 35). Accordingly, it is difficult to see how such a plenary power could be rooted in a trust relationship with Indians. And it seems at least slightly incongruous to use Indians’ trust in the Government as both the basis for a power that can restrict tribal rights and canons of interpretation that favor Indians.
The influence of the “trust relationship” idea on these doctrinal areas is troubling, as the trust relationship appears to lack any real support in our constitutional system.
