Case 2:25-cv-01541-APG-DJA Document 32 Filed 09/30/25 Page 15 of 21
and manifest.” Posadas v. Nat’l City Bank of N.Y. , 296 U.S. 497, 503 (1936). “[W]hen two
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statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed
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congressional intention to the contrary, to regard each as effective.” Morton v. Mancari , 417 U.S.
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535, 551 (1974). “[T]he only permissible justification for a repeal by implication is when the
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earlier and later statutes are irreconcilable.” Id. at 550 (citing Georgia v. Pa. R.R. Co. , 324 U.S.
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439, 456–57 (1945)). Further, “the specific governs the general,” particularly where “a general
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permission or prohibition is contradicted by a specific prohibition or permission.” RadLAX
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Gateway Hotel, LLC v. Amalgamated Bank , 566 U.S. 639, 645 (2012). Finally, the Indian Canons
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of Construction 15 require courts to resolve statutory ambiguities in favor of tribes. Bryan v. Itasca County , 426 U.S. 373, 392 (1976).
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Applying these same principles to a question of whether a broad statute repeals or amends
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an earlier Indian statute by implication, the Ninth Circuit has established clear precedent. In
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Swinomish Indian Tribal Community v. BNSF Railway , 951 F.3d 1142 (9th Cir. 2020), the Ninth
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Circuit examined whether a broadly applicable statute regulating railways (the Interstate
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Commerce Commission Termination Act (“ICCTA”)) repealed portions of an earlier statute that
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was specific to Indian tribes (the Indian Right of Way Act (“IRWA”)). There, a railroad operator
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was violating an easement issued under IRWA. The railroad operator argued that the ICCTA
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repealed certain provisions of IRWA. The Ninth Circuit noted that “[i]n the context of a statute
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that touches on federal Indian law, such as [IRWA], there is an additional canon of construction:
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[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions
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interpreted to their benefit.” Id . at 1156 (citation omitted).
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15 As the Justice Blackmun has explained:
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Because Congress’ authority to legislate unilaterally on behalf of the Indians derives from the presumption that Congress will act with benevolence, courts “have developed canons of construction that treaties and other federal action should when possible be read as protecting Indian rights and in a manner favorable to Indians.” Hagen v. Utah , 510 U.S. 399, 423 n.1 (1994) (Blackmun, J., dissenting) (quoting Felix Cohen, Handbook of Federal Indian Law 221 (1982 ed.)).
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