Yellen v. Confederated Tribes of the Chehalis Reservation

Justice Breyer to Respondent (1:05:19): Good morning. Thank you. Imagine you work for a company that sends people subscription requests, you know, they keep information about subscriptions to vast numbers of publications, and I write back, you get this letter, and you’re in charge of filling requests, Dear -- et cetera -- I would like more information about any newspaper, including The Atlantic Monthly, which is published daily. Would you be at a loss as to how to fill that request?

Gerald Torres and Grace Brosofsky: Justice Breyer, in your example, I would presume that the letter’s author—unlike Congress in the case at hand—did just use poor grammar. The request is confusing because we can’t take the author literally: she knows (or should know) that a monthly publication is not published daily, so she couldn’t have meant for the qualifier to apply to The Atlantic Monthly. And she’s making a one-time request that she expects to be filled soon, so she clearly isn’t trying to say, “Well, if someday in the future The Atlantic Monthly becomes The Atlantic Daily, then send me information about it.”

That’s where this example is different from the case at hand. An example more similar to our case would be, say, a fifty-year subscription to “newspapers, including newspapers and magazines outside the United States, that feature Mickey Mouse comics.” Assume that this subscription request was made in January of 1930. At that time, there were no Mickey Mouse comic strips published outside the U.S., and it probably seemed unlikely that any ever would be. But it was possible that newspapers and magazines in other countries would start printing Mickey Mouse comics within the fifty-year subscription period, and we should read the subscription request to account for that possibility. In other words, we should assume that the author of the subscription request meant what he said--that he only wanted newspapers and magazines outside the United States if, at some point during his fifty-year subscription period, they started publishing Mickey Mouse comics. This makes sense and is a perfectly logical reading, even if no newspapers or magazines outside the U.S. at the time published the comic strips, and even if the comics never ended up being published outside the U.S.

Likewise, here, the authors of the ISDA were writing a law that would continue to take effect years into the future, and they wrote it to account for the possibility that ANCs would eventually be recognized as sovereign. It was perfectly logical for Congress to account for that possibility, even if the eventual recognition of ANCs seemed unlikely, and even though it still hasn’t happened. We should therefore read the ISDA to mean what it says—that ANCs will only be included in the definition of “Tribes” if eventually they are formally recognized. When this reading makes sense, there’s no reason to presume bad grammar and decide that Congress didn’t mean what it said.