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Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins Jan 2013

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

Articles

This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government ...


Persuasion Treaties, Melissa J. Durkee Jan 2013

Persuasion Treaties, Melissa J. Durkee

Articles

All treaties, akin to contracts between nations, formalize the promises of their parties. Yet the contents of those promises differ, with important consequences.

One particular difference is underappreciated and divides treaties into two fundamentally different categories. In one category of treaty, nations agree that they themselves will act, or refrain from acting, in certain ways. For convenience, I call these “resolution” treaties because they demand that states resolve to act. In the second category, nations make promises they can only keep if nonstate third parties also act or refrain from acting. These are what I term “persuasion” treaties because they ...