CHICKASAW NATION v. UNITED STATES

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84 OCTOBER TERM, 2001
Syllabus
CHICKASAW NATION v. UNITED STATES
certiorari to the united states court of appeals for
the tenth circuit
No. 00–507. Argued October 2, 2001—Decided November 27, 2001*
The Indian Gaming Regulatory Act (Gaming Act) provides, as relevant
here, that Internal Revenue Code (Code) provisions “(including
[§§ ]1441, 3402(q), 6041, and 6050I, and chapter 35 . . .) concerning the
reporting and withholding of taxes” with respect to gambling operations
shall apply to Indian tribes in the same way as they apply to States. 25
U. S. C. § 2719(d)(1). Chapter 35 imposes taxes from which it exempts
certain state-controlled gambling activities, but says nothing about tax
reporting or withholding. Petitioners, the Choctaw and Chickasaw
Nations, claim that the Gaming Act subsection’s explicit parenthetical
reference exempts them from paying those chapter 35 taxes from which
the States are exempt. Rejecting that claim, the Tenth Circuit held
that the subsection applies only to Code provisions concerning tax with-
holding and reporting.
Held: Section 2719(d)(1) does not exempt tribes from paying the
gambling-related taxes that chapter 35 imposes. Pp. 88–95.
(a) The subsection’s language outside the parenthetical says that the
subsection applies to Code provisions concerning reporting and with-
holding, and the other four parenthetical references arguably con-
cern reporting and withholding. The Tribes nonetheless claim that
the subsection’s explicit parenthetical reference to chapter 35 expands
the Gaming Act’s scope beyond reporting and withholding provisions—
to the tax-imposing provisions that chapter 35 contains—and at the very
least gives the subsection an ambiguity that can be resolved by applying
the canon that statutes are to be construed liberally in favor of Indians
with ambiguous provisions interpreted to their benefit. Rejecting their
argument reduces the chapter 35 phrase to surplusage, but there is no
other reasonable reading of the statute. Pp. 88–89.
(b) The statute’s language is too strong to give the chapter 35 refer-
ence independent operative effect. The unambiguous language outside
the parenthetical says without qualification that the subsection applies
to “provisions . . . concerning the reporting and withholding of taxes”;
and the language inside the parenthetical, prefaced with the word “in-
*Together with Choctaw Nation of Oklahoma v. United States (see this
Court’s Rule 12.4), also on certiorari to the same court.

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Syllabus
cluding,” literally says the same, since to “include” means to “contain.”
The use of parentheses emphasizes the fact that that which is within
is meant simply to be illustrative. To give the chapter 35 reference
independent operative effect would require seriously rewriting the rest
of the statute. One would have to read “including” to mean what it
does not mean, namely, “including . . . and.” To read the language out-
side the parenthetical as if it referred to (1) Code provisions con-
cerning tax reporting and withholding and (2) those “concerning . . .
wagering operations” would be far too convoluted to believe Con-
gress intended it. There is no reason to think Congress intended to
sweep within the subsection’s scope every Code provision concerning
wagering. The subject matter at issue—tax exemption—also counsels
against accepting the Tribes’ interpretation. This Court can find no
comparable instance in which Congress legislated an exemption through
a parenthetical numerical cross-reference. Since the more plausible
role for the parenthetical to play in this subsection is that of providing
an illustrative list of examples, common sense suggests that “chapter
35” is simply a bad example that Congress included inadvertently, a
drafting mistake. Pp. 89–91.
(c) The Gaming Act’s legislative history on balance supports this
Court’s conclusion. And the canons of interpretation to which the
Tribes point—that every clause and word of a statute should be given
effect and that statutes are to be construed liberally in favor of the
Indians with ambiguous provisions interpreted to their benefit—do not
determine how to read this statute. First, the canons are guides that
need not be conclusive. Circuit City Stores, Inc. v. Adams, 532 U. S.
105, 115. To accept these canons as conclusive here would produce an
interpretation that the Court firmly believes would conflict with con-
gressional intent. Second, specific canons are often countered by some
maxim pointing in a different direction. Ibid. The canon requiring a
court to give effect to each word “if possible” is sometimes offset by the
canon permitting a court to reject words as mere surplusage if inadvert-
ently inserted or if repugnant to the rest of the statute. Moreover, the
pro-Indian canon is offset by the canon warning against interpreting
federal statutes as providing tax exemptions unless the exemptions are
clearly expressed. Given the individualized nature of this Court’s pre-
vious cases, one cannot say that the pro-Indian canon is inevitably
stronger, particularly where the interpretation of a congressional stat-
ute rather than an Indian treaty is at issue. Pp. 91–95.
208 F. 3d 871 (first judgment); 210 F. 3d 389 (second judgment), affirmed.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Kennedy, and Ginsburg, JJ., joined, and in which

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86 CHICKASAW NATION v. UNITED STATES
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Scalia and Thomas, JJ., joined as to all but Part II–B. O’Connor, J.,
filed a dissenting opinion, in which Souter, J., joined, post, p. 96.
Graydon Dean Luthey, Jr., argued the cause for petition-
ers. With him on the briefs were Stephen W. Ray, Bob W.
Rabon, and Dennis W. Arrow.
Edward C. DuMont argued the cause for the United
States. With him on the brief were Solicitor General
Olson, Acting Assistant Attorney General Fallon, Deputy
Solicitor General Wallace, Gary R. Allen, and David Eng-
lish Carmack.†
Justice Breyer delivered the opinion of the Court.*
In these cases we must decide whether a particular sub-
section in the Indian Gaming Regulatory Act, 102 Stat. 2467–
2486, 25 U. S. C. §§ 2701–2721 (1994 ed.), exempts tribes from
paying the gambling-related taxes that chapter 35 of the In-
ternal Revenue Code imposes—taxes that States need not
pay. We hold that it does not create such an exemption.
I
The relevant Indian Gaming Regulatory Act (Gaming Act)
subsection, as codified in 25 U. S. C. § 2719(d)(1), reads as
follows:
†Briefs of amici curiae urging reversal were filed for the San Carlos
Apache Tribe by Richard T. Treon; for the San Manuel Band of Serrano
Mission Indians by Jerome L. Levine and Frank R. Lawrence; for the
Seminole Tribe of Florida et al. by Hans Walker, Jr., and Judith A. Sha-
piro; and for the Shakopee Mdewakanton Sioux (Dakota) Community et al.
by Mark J. Streitz and Michael J. Wahoske.
Briefs of amici curiae urging affirmance were filed for the town of Led-
yard, Connecticut, et al. by Benjamin S. Sharp, Guy R. Martin, and Don-
ald C. Mitchell.
Briefs of amici curiae were filed for the Lower Sioux Indian Commu-
nity in Minnesota et al. by James M. Schoessler, Henry M. Buffalo, Jr.,
Mark A. Anderson, and Dennis J. Peterson; and for the Muscogee (Creek)
Nation by L. Susan Work.
*Justice Scalia and Justice Thomas join all but Part II–B of this
opinion.

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“The provisions of [the Internal Revenue Code of
1986] (including sections 1441, 3402(q), 6041, and 6050I,
and chapter 35 of such [Code]) concerning the reporting
and withholding of taxes with respect to the winnings
from gaming or wagering operations shall apply to In-
dian gaming operations conducted pursuant to this chap-
ter, or under a Tribal-State compact entered into under
section 2710(d)(3) of this title that is in effect, in the
same manner as such provisions apply to State gaming
and wagering operations.”
The subsection says that Internal Revenue Code provisions
that “concer[n] the reporting and withholding of taxes” with
respect to gambling operations shall apply to Indian tribes
in the same way as they apply to States. The subsection
also says in its parenthetical that those provisions “includ[e]”
Internal Revenue Code “chapter 35.” Chapter 35, however,
says nothing about the reporting or the withholding of taxes.
Rather, that chapter simply imposes taxes—excise taxes and
occupational taxes related to gambling—from which it ex-
empts certain state-controlled gambling activities. See,
e. g., 26 U. S. C. § 4401(a) (1994 ed.) (imposing 0.25% excise
tax on each wager); § 4411 (imposing $50 occupational tax on
each individual engaged in wagering business); § 4402(3)
(exempting state-operated gambling operations, such as
lotteries).
In this lawsuit two Native American Indian Tribes, the
Choctaw and Chickasaw Nations, claim that the Gaming Act
subsection exempts them from paying those chapter 35 taxes
from which States are exempt. Brief for Petitioners 34–36.
They rest their claim upon the subsection’s explicit paren-
thetical reference to chapter 35. The Tenth Circuit rejected
their claim on the ground that the subsection, despite its par-
enthetical reference, applies only to Code provisions that
concern the “reporting and withholding of taxes.” 208 F. 3d
871, 883–884 (2000); see also 210 F. 3d 389 (2000). The Court
of Appeals for the Federal Circuit, however, reached the

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opposite conclusion. Little Six, Inc. v. United States, 210
F. 3d 1361, 1366 (2000). We granted certiorari in order to
resolve the conflict. We agree with the Tenth Circuit.
II
The Tribes’ basic argument rests upon the subsection’s ex-
plicit reference to “chapter 35”—contained in a parenthetical
that refers to four other Internal Revenue Code provisions
as well. The subsection’s language outside the parenthetical
says that the subsection applies to those Internal Revenue
Code provisions that concern “reporting and withholding.”
The other four parenthetical references are to provisions
that concern, or at least arguably concern, reporting and
withholding. See 26 U. S. C. § 1441 (1994 ed. and Supp. V)
(withholding of taxes for nonresident alien); § 3402(q) (with-
holding of taxes from certain gambling winnings); § 6041 (re-
porting by businesses of payments, including payments of
gambling winnings, to others); § 6050I (reporting by busi-
nesses of large cash receipts, arguably applicable to certain
gambling winnings or receipts).
But what about chapter 35? The Tribes correctly point
out that chapter 35 has nothing to do with “reporting and
withholding.” Brief for Petitioners 28–29. They add that
the reference must serve some purpose, and the only purpose
that the Tribes can find is that of expanding the scope of the
Gaming Act’s subsection beyond reporting and withholding
provisions—to the tax-imposing provisions that chapter 35
does contain. The Gaming Act therefore must exempt them
(like States) from those tax payment requirements. The
Tribes add that at least the reference to chapter 35 makes
the subsection ambiguous. And they ask us to resolve the
ambiguity by applying a special Indian-related interpreta-
tive canon, namely, “ ‘statutes are to be construed liberally
in favor of the Indians with ambiguous provisions inter-
preted to their benefit.’ ” Id., at 13 (quoting Montana v.
Blackfeet Tribe, 471 U. S. 759, 766 (1985)).

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We cannot accept the Tribes’ claim. We agree with the
Tribes that rejecting their argument reduces the phrase
“(including . . . chapter 35) . . .” to surplusage. Nonetheless,
we can find no other reasonable reading of the statute.
A
The language of the statute is too strong to bend as the
Tribes would wish—i. e., so that it gives the chapter 35 refer-
ence independent operative effect. For one thing, the lan-
guage outside the parenthetical is unambiguous. It says
without qualification that the subsection applies to “provi-
sions . . . concerning the reporting and withholding of taxes.”
And the language inside the parenthetical, prefaced with the
word “including,” literally says the same. To “include” is to
“contain” or “comprise as part of a whole.” Webster’s Ninth
New Collegiate Dictionary 609 (1985). In this instance that
which “contains” the parenthetical references—the “whole”
of which the references are “parts”—is the phrase “pro-
visions . . . concerning the reporting and withholding of
taxes . . . .” The use of parentheses emphasizes the fact
that that which is within is meant simply to be illustrative,
hence redundant—a circumstance underscored by the lack of
any suggestion that Congress intended the illustrative list to
be complete. Cf. 26 U. S. C. § 3406 (1994 ed.) (backup with-
holding provision not mentioned in parenthetical).
Nor can one give the chapter 35 reference independent
operative effect without seriously rewriting the language of
the rest of the statute. One would have to read the word
“including” to mean what it does not mean, namely, “includ-
ing . . . and.” One would have to read the statute as if, for
example, it placed “chapter 35” outside the parenthetical and
said “provisions of the . . . Code including chapter 35 and
also provisions . . . concerning the reporting and withholding
of taxes . . . .” Or, one would have to read the language as
if it said “provisions of the . . . Code . . . concerning the
taxation and the reporting and withholding of taxes . . . .”

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We mention this latter possibility because the congressional
bill that became the law before us once did read that way.
But when the bill left committee, it contained not the em-
phasized words (“the taxation and”) but the cross-reference
to chapter 35.
We recognize the Tribes’ claim (made here for the first
time) that one could avoid rewriting the statute by reading
the language outside the parenthetical as if it referred to
two kinds of “provisions of the . . . Code”: first, those “con-
cerning the reporting and withholding of taxes with respect
to the winnings from gaming,” and, second, those “concern-
ing . . . wagering operations.” See Reply Brief for Petition-
ers 8–10. The subsection’s grammar literally permits this
reading. But that reading, even if ultimately comprehensi-
ble, is far too convoluted to believe Congress intended it.
Nor is there any reason to think Congress intended to sweep
within the subsection’s scope every Internal Revenue Code
provision concerning wagering—a result that this unnatural
reading would accomplish.
The subject matter at issue also counsels against accepting
the Tribes’ interpretation. That subject matter is tax ex-
emption. When Congress enacts a tax exemption, it ordi-
narily does so explicitly. We can find no comparable in-
stance in which Congress legislated an exemption through
an inexplicit numerical cross-reference—especially a cross-
reference that might easily escape notice.
As we have said, the more plausible role for the paren-
thetical to play in this subsection is that of providing an
illustrative list of examples. So considered, “chapter 35”
is simply a bad example—an example that Congress in-
cluded inadvertently. The presence of a bad example in a
statute does not warrant rewriting the remainder of the
statute’s language. Nor does it necessarily mean that the
statute is ambiguous, i. e., “capable of being understood in
two or more possible senses or ways.” Webster’s Ninth
New Collegiate Dictionary 77 (1985). Indeed, in ordinary

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life, we would understand an analogous instruction—say,
“Test drive some cars, including Plymouth, Nissan, Chevro-
let, Ford, and Kitchenaid”—not as creating ambiguity, but as
reflecting a mistake. Here too, in context, common sense
suggests that the cross-reference is simply a drafting mis-
take, a failure to delete an inappropriate cross-reference in
the bill that Congress later enacted into law. Cf. Little Six,
Inc. v. United States, 229 F. 3d 1383, 1385 (CA Fed. 2000)
(Dyk, J., dissenting from denial of rehearing en banc) (“The
language of the provision has all the earmarks of a simple
mistake in legislative drafting”).
B
The Gaming Act’s legislative history on balance supports
our conclusion. The subsection as it appeared in the origi-
nal Senate bill applied both to taxation and to reporting and
withholding. It read as follows:
“Provisions of the Internal Revenue Code . . . concerning
the taxation and the reporting and withholding of taxes
with respect to gambling or wagering operations shall
apply to Indian gaming operations . . . the same as they
apply to State operations.” S. 555, 100th Cong., 1st
Sess., 37 (1987).
With the “taxation” language present, it would have made
sense to include chapter 35, which concerns taxation, in a
parenthetical that included other provisions that concern
reporting and withholding. But the Senate committee de-
leted the taxation language. Why did it permit the cross-
reference to chapter 35 to remain? Committee documents
do not say.
The Tribes argue that the committee intentionally left it
in the statute in order to serve as a substitute for the word
“taxation.” An amicus tries to support this view by point-
ing to a tribal representative’s testimony that certain Tribes
were “opposed to any indication where Internal Revenue

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would be collecting taxes from the tribal bingo operations.”
Hearings on S. 555 and S. 1303 before the Senate Select Com-
mittee on Indian Affairs, 100th Cong., 1st Sess., 109 (1987)
(statement of Lionel John, Executive Director of United
South and Eastern Tribes). Other Tribes thought the “tax-
ation” language too “vague,” preferring a clear statement
“that the Internal Revenue Service is not being granted au-
thority to tax tribes.” Id., at 433, 435 (statement of Charles
W. Blackwell, Representative of the American Indian Tribal
Government and Policy Consultants, Inc.).
Substitution of “chapter 35” for the word “taxation,” how-
ever, could not have served the tribal witnesses purposes,
for doing so took from the bill the very words that made
clear the tribes would not be taxed and substituted language
that made it more likely they would be taxed. Nor can we
believe that anyone seeking to grant a tax exemption would
intentionally substitute a confusion-generating numerical
cross-reference, see Part II–A, supra, for pre-existing lan-
guage that unambiguously carried out that objective. It is
far easier to believe that the drafters, having included the
entire parenthetical while the word “taxation” was still part
of the bill, unintentionally failed to remove what had become
a superfluous numerical cross-reference—particularly since
the tax-knowledgeable Senate Finance Committee never
received the opportunity to examine the bill. Cf. S. Doc.
No. 100–1, Senate Manual 30 (1987) (proposed legislation con-
cerning revenue measures shall be referred to the Commit-
tee on Finance).
Finally, the Tribes point to a letter written by one of the
Gaming Act’s authors, stating that “by including reference
to Chapter 35,” Congress intended “that the tax treatment
of wagers conducted by tribal governments be the same as
that for wagers conducted by state governments under
Chapter 35.” App. to Pet. for Cert. 113a. This letter, how-
ever, was written after the event. It expresses the views
of only one member of the committee. And it makes no

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effort to explain the critical legislative circumstance, namely,
the elimination of the word “taxation” from the bill. The
letter may express the Senator’s interpretive preference, but
that preference cannot overcome the language of the statute
and the related considerations we have discussed. See
Heintz v. Jenkins, 514 U. S. 291, 298 (1995) (A “statement
[made] not during the legislative process, but after the stat-
ute became law . . . is not a statement upon which other
legislators might have relied in voting for or against the Act,
but it simply represents the views of one informed person on
an issue about which others may (or may not) have thought
differently”). Cf. New York Telephone Co. v. New York State
Dept. of Labor, 440 U. S. 519, 564, n. 18 (1979) (Powell, J.,
dissenting) (“The comments . . . of a single Congressman,
delivered long after the original passage of the [act at issue],
are of no aid in determining congressional intent . . .”).
In sum, to adopt the Tribes’ interpretation would read
back into the Act the very word “taxation” that the Sen-
ate committee deleted. We ordinarily will not assume that
Congress intended “ ‘to enact statutory language that it
has earlier discarded in favor of other language.’ ” INS v.
Cardoza-Fonseca, 480 U. S. 421, 443 (1987) (quoting Nach-
man Corp. v. Pension Benefit Guaranty Corporation, 446
U. S. 359, 392–393 (1980)); Gulf Oil Corp. v. Copp Paving
Co., 419 U. S. 186, 200 (1974) (same); Mescalero Apache Tribe
v. Jones, 411 U. S. 145, 157 (1973) (same). There is no special
reason for doing so here.
C
The Tribes point to canons of interpretation that favor
their position. The Court has often said that “ ‘every clause
and word of a statute’ ” should, “ ‘if possible,’ ” be given
“ ‘effect.’ ” United States v. Menasche, 348 U. S. 528, 538–
539 (1955) (quoting Montclair v. Ramsdell, 107 U. S. 147, 152
(1883)). The Tribes point out that our interpretation de-
prives the words “chapter 35” of any effect. The Court has
also said that “statutes are to be construed liberally in favor

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of the Indians with ambiguous provisions interpreted to
their benefit.” Montana v. Blackfeet Tribe, 471 U. S., at
766; South Carolina v. Catawba Tribe, Inc., 476 U. S. 498,
520 (1986) (Blackmun, J., dissenting). The Tribes point out
that our interpretation is not to the Indians’ benefit.
Nonetheless, these canons do not determine how to read
this statute. For one thing, canons are not mandatory rules.
They are guides that “need not be conclusive.” Circuit City
Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001). They are
designed to help judges determine the Legislature’s intent
as embodied in particular statutory language. And other
circumstances evidencing congressional intent can overcome
their force. In this instance, to accept as conclusive the can-
ons on which the Tribes rely would produce an interpreta-
tion that we conclude would conflict with the intent embod-
ied in the statute Congress wrote. Cf. Choteau v. Burnet,
283 U. S. 691 (1931) (upholding taxation where congressional
intent reasonably clear); Superintendent of Five Civilized
Tribes v. Commissioner, 295 U. S. 418 (1935) (same); Mesca-
lero Apache Tribe v. Jones, supra (same). In light of the
considerations discussed earlier, we cannot say that the stat-
ute is “fairly capable” of two interpretations, cf. Montana v.
Blackfeet Tribe, supra, at 766, nor that the Tribes’ interpre-
tation is fairly “possible.”
Specific canons “are often countered . . . by some maxim
pointing in a different direction.” Circuit City Stores, Inc.
v. Adams, supra, at 115. The canon requiring a court to
give effect to each word “if possible” is sometimes offset by
the canon that permits a court to reject words “as surplus-
age” if “inadvertently inserted or if repugnant to the rest of
the statute . . . .” K. Llewellyn, The Common Law Tradi-
tion 525 (1960). And the latter canon has particular force
here where the surplus words consist simply of a numerical
cross-reference in a parenthetical. Cf. Cabell Huntington
Hospital, Inc. v. Shalala, 101 F. 3d 984, 990 (CA4 1996)

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(“A parenthetical is, after all, a parenthetical, and it cannot
be used to overcome the operative terms of the statute”).
Moreover, the canon that assumes Congress intends its
statutes to benefit the tribes is offset by the canon that
warns us against interpreting federal statutes as provid-
ing tax exemptions unless those exemptions are clearly ex-
pressed. See United States v. Wells Fargo Bank, 485 U. S.
351, 354 (1988) (“[E]xemptions from taxation . . . must be
unambiguously proved”); Squire v. Capoeman, 351 U. S. 1, 6
(1956) (“[T]o be valid, exemptions to tax laws should be
clearly expressed”); United States Trust Co. v. Helvering,
307 U. S. 57, 60 (1939) (“Exemptions from taxation do not
rest upon implication”). Nor can one say that the pro-Indian
canon is inevitably stronger—particularly where the inter-
pretation of a congressional statute rather than an Indian
treaty is at issue. Cf. post, at 100 (O’Connor, J., dissenting).
This Court’s earlier cases are too individualized, involving
too many different kinds of legal circumstances, to warrant
any such assessment about the two canons’ relative strength.
Compare, e. g., Choate v. Trapp, 224 U. S. 665, 675–676 (1912)
(interpreting statement in treaty-related Indian land patents
that land is “nontaxable” as creating property right invali-
dating later congressional effort to tax); Squire, supra, at 3
(Indian canon offsetting tax canon when related statutory
provision and history make clear that language freeing In-
dian land “ ‘of all charge or incumbrance whatsoever’ ” in-
cludes tax); McClanahan v. Arizona Tax Comm’n, 411 U. S.
164, 174 (1973) (state tax violates principle of Indian sover-
eignty embodied in treaty), with Mescalero, supra (relying
on tax canon to find Indians taxable); Choteau, supra (lan-
guage makes clear no exemption); Five Tribes, supra (same).
Consequently, the canons here cannot make the difference
for which the Tribes argue. We conclude that the judg-
ments of the Tenth Circuit must be affirmed.
It is so ordered.

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96 CHICKASAW NATION v. UNITED STATES
O’Connor, J., dissenting
Justice O’Connor, with whom Justice Souter joins,
dissenting.
The Court today holds that 25 U. S. C. § 2719(d) (1994 ed.)
clearly and unambiguously fails to give Indian Nations (Na-
tions) the exemption from federal wagering excise and re-
lated occupational taxes enjoyed by the States. Because I
believe § 2719(d) is subject to more than one interpretation,
and because “statutes are to be construed liberally in favor
of the Indians, with ambiguous provisions interpreted to
their benefit,” Montana v. Blackfeet Tribe, 471 U. S. 759, 766
(1985), I respectfully dissent.
I
I agree with the Court that § 2719(d) incorporates an error
in drafting. I disagree, however, that the section’s refer-
ence to chapter 35 is necessarily that error.
As originally proposed in the Senate, the bill that became
the Indian Gaming Regulatory Act (IGRA) would have ap-
plied all gambling and wagering-related sections of the In-
ternal Revenue Code to the Nations in the same manner as
the States:
“Provisions of the Internal Revenue Code of 1986,
concerning the taxation and the reporting and with-
holding of taxes with respect to gambling or wager-
ing operations shall apply to Indian gaming operations
conducted pursuant to this Act the same as they apply
to State operations.” S. 555, 100th Cong., 1st Sess., 37
(1987).
The Senate Indian Affairs Committee altered the language
of this bill in two contradictory ways. It restricted the
applicable Code sections to those relating to the “reporting
and withholding of taxes with respect to the winnings” from
gaming operations. 25 U. S. C. § 2719(d). It also added a
parenthetical listing specific Code sections to be applied to
the Nations in the same manner as the States, including

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chapter 35, a Code provision that relates to gambling opera-
tions generally, but not to the reporting and withholding
of gambling winnings. Ibid.
One of these two changes must have been made in error.
There is no reason to assume, however, that it must have
been the latter. It is equally likely that Congress intended
§ 2719(d) to apply chapter 35 to the Nations, but adopted
too restrictive a general characterization of the applicable
sections.
The Court can do no more than speculate that the bill’s
drafters included the parenthetical while the original re-
striction was in place and failed to remove it when that
restriction was altered. See ante, at 92. Both the inclusion
of the parenthetical and the alteration of the restriction
occurred in the Senate committee, S. Rep. No. 100–446
(1988), and there is no way to determine the order in which
they were adopted. If the parenthetical was added after
the restriction, one could just as easily characterize the
restriction as an unintentional holdover from a previous
version of the bill.
True, reading the statute to grant the Nations the exemp-
tion requires the section’s reference to the “reporting and
withholding of taxes with respect to the winnings” from
gaming operations to sustain a meaning the words them-
selves cannot bear. But the Court’s reading of the statute
fares no better: It requires excising from § 2719(d) Con-
gress’ explicit reference to chapter 35. This goes beyond
treating statutory language as mere surplusage. See Potter
v. United States, 155 U. S. 438, 446 (1894) (the presence of
statutory language “cannot be regarded as mere surplusage;
it means something”); cf. ante, at 89. Surplusage is redun-
dant statutory language, Babbitt v. Sweet Home Chapter,
Communities for Great Ore., 515 U. S. 687, 697–698 (1995);
W. Popkin, Materials on Legislation: Political Language and
the Political Process 214 (3d ed. 2001)—the Court’s reading

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98 CHICKASAW NATION v. UNITED STATES
O’Connor, J., dissenting
negates language that undeniably bears separate meaning.
This is not a step to be undertaken lightly.
Both approaches therefore require rewriting the statute,
see ante, at 89. Neither of these rewritings is necessarily
more “serious” than the other: At most, each involves
doing no more than reversing a change made in committee.
Cf. ante, at 90.
The Court argues that, because the reference to chapter
35 occurs in a parenthetical, negating this language does less
damage to the statute than concluding that the restrictive
language outside the parenthetical is too narrowly drawn.
I am aware of no generally accepted canon of statutory con-
struction favoring language outside of parentheses to lan-
guage within them, see, e. g., W. Eskridge, P. Frickey, &
E. Garrett, Legislation and Statutory Interpretation, App. C
(2000) (listing canons), nor do I think it wise for the Court
to adopt one today. The importance of statutory language
depends not on its punctuation, but on its meaning. See
United States Nat. Bank of Ore. v. Independent Ins. Agents
of America, Inc., 508 U. S. 439, 454 (1993) (“[A] purported
plain-meaning analysis based only on punctuation is neces-
sarily incomplete and runs the risk of distorting a statute’s
true meaning”).
The fact that the parenthetical is illustrative does not
change the analysis: If Congress’ illustration does not match
its general description, there is as much reason to question
the description as the illustration. Where another general
description is possible—and was in fact part of the bill at an
earlier stage—Congress’ choice of an example that matches
the earlier description is at least ambiguous. Moreover, as
§ 2719(d)’s parenthetical specifically lists statutory sections
to be applied to the Nations, one might in fact conclude that
the doctrine that the specific governs the general, Crawford
Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437, 445 (1987),
makes this specific parenthetical even more significant than
the general restriction that follows.

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O’Connor, J., dissenting
Nor is negating Congress’ clear reference to chapter 35
required by the policy behind the statute. If anything, con-
gressional policy weighs in favor of the Nations. Congress’
central purpose in enacting IGRA was “to provide a statu-
tory basis for the operation of gaming by Indian tribes as
a means of promoting tribal economic development, self-
sufficiency, and strong tribal governments.” § 2702(1). Ex-
empting Nations from federal gaming taxation in the same
manner as States preserves the Nations’ sovereignty and
avoids giving state gaming a competitive advantage that
would interfere with the Nations’ ability to raise revenue in
this manner.
II
Because nothing in the text, legislative history, or under-
lying policies of § 2719(d) clearly resolves the contradiction
inherent in the section, it is appropriate to turn to canons
of statutory construction. The Nations urge the Court to
rely upon the Indian canon that “statutes are to be construed
liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit,” Montana v. Blackfeet Tribe,
471 U. S., at 766, as a basis for deciding that the error in
§ 2719(d) lies in the restriction of the subclass, not in
the specific listing of chapter 35. “[R]ooted in the unique
trust relationship between the United States and the Indi-
ans,” County of Oneida v. Oneida Indian Nation of N. Y.,
470 U. S. 226, 247 (1985), the Indian canon presumes congres-
sional intent to assist its wards to overcome the disadvan-
tages our country has placed upon them. Consistent with
this purpose, the Indian canon applies to statutes as well
as treaties: The form of the enactment does not change the
presumption that Congress generally intends to benefit
the Nations. Montana v. Blackfeet Tribe, supra; County
of Yakima v. Confederated Tribes and Bands of Yakima
Nation, 502 U. S. 251 (1992). In these cases, because Con-
gress has chosen gaming as a means of enabling the Nations
to achieve self-sufficiency, the Indian canon rightly dictates

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O’Connor, J., dissenting
that Congress should be presumed to have intended the Na-
tions to receive more, rather than less, revenue from this
enterprise.
Of course, the Indian canon is not the only canon with
potential applicability in these cases. Also relevant is the
taxation principle, that exemptions from taxation must be
clearly expressed. United States Trust Co. v. Helvering,
307 U. S. 57, 60 (1939); see also ante, at 95. These canons
pull in opposite directions, the former favoring the Nations’
preferred reading, and the latter favoring the Government’s.
This Court has repeatedly held that, when these two can-
ons conflict, the Indian canon predominates. In Choate v.
Trapp, 224 U. S. 665 (1912), a State attempted to rely on
the taxation principle to argue that a treaty provision
making land granted to Indians nontaxable was merely a
bounty, capable of being withdrawn at any time. The Court
acknowledged the taxation principle, responding:
“But in the Government’s dealings with the Indians, the
rule is exactly the contrary. The construction, instead
of being strict, is liberal; doubtful expressions, instead
of being resolved in favor of the United States, are to be
resolved in favor of [Indian nations.]” Id., at 674–675.
In Squire v. Capoeman, 351 U. S. 1, 3 (1956), the Federal
Government had conveyed land to the Nations “ ‘free of all
charge or encumbrance whatsoever.’ ” Although this phrase
did not expressly mention nontaxability, the Court held that
the language “might well be sufficient to include taxation,”
id., at 7. Invoking the Indian canon, id., at 6–7, we found
the Nations exempt.
Likewise, in McClanahan v. Arizona Tax Comm’n, 411
U. S. 164 (1973), this Court inferred an exemption from state
taxation of property inside reservations from a treaty re-
serving lands for the exclusive use and occupancy of the
Nations. In doing so, the Court noted: “It is true, of course,
that exemptions from tax laws should, as a general rule, be

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clearly expressed. But we have in the past construed lan-
guage far more ambiguous than this as providing a tax ex-
emption for Indians.” Id., at 176 (citing Squire, supra, at
100).
As the purpose behind the Indian canon is the same re-
gardless of the form of enactment, supra, at 99, there is no
reason to alter the Indian canon’s relative strength where a
statute rather than a treaty is involved. Cf. ante, at 95.
The primacy of the Indian canon over the taxation principle
should not be surprising, as this Court has also held that
the general presumption supporting the legality of executive
action must yield to the Indian canon, a “counterpresumption
specific” to Indians. Minnesota v. Mille Lacs Band of Chip-
pewa Indians, 526 U. S. 172, 194, n. 5 (1999).
This Court has failed to apply the Indian canon to extend
tax exemptions to the Nations only when nothing in the lan-
guage of the underlying statute or treaty suggests the Na-
tions should be exempted. The Cherokee Tobacco, 11 Wall.
616, 618, 620 (1871) (finding no exemption for the Nations
from language imposing taxes on certain “ ‘articles produced
anywhere within the exterior boundaries of the United
States’ ”); Choteau v. Burnet, 283 U. S. 691, 693–694 (1931)
(finding no exemption in provisions “subject[ing] the income
of ‘every individual’ to tax,” including “income ‘from any
source whatever’ ”); Superintendent of Five Civilized Tribes
v. Commissioner, 295 U. S. 418 (1935) (same); Mescalero
Apache Tribe v. Jones, 411 U. S. 145, 155 (1973) (refusing to
exempt the Nations from taxes on land use income based on
language that “[o]n its face . . . exempts land and rights in
land, not income derived from its use”). Mescalero also
went further, suggesting that because of the taxation princi-
ple, the Court would refuse to find such an exemption absent
“clear statutory guidance.” Id., at 156. Mescalero’s formu-
lation is admittedly in tension with the Court’s precedents
giving the Indian canon primacy over the taxation principle
where statutory language is ambiguous. As Mescalero was

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102 CHICKASAW NATION v. UNITED STATES
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decided on the same day as one of those very precedents, the
unanimous decision in McClanahan v. Arizona Tax Comm’n,
supra, however, it cannot have intended to alter the Court’s
established practice.
Section 2719(d) provides an even more persuasive case for
application of the Indian canon than any of our precedents.
Here, the Court is not being asked to create out of vague
language a tax exemption not specifically provided for in the
statute. Instead, the Nations simply ask the Court to use
the Indian canon as a tiebreaker between two equally plausi-
ble (or, in these cases, equally implausible) constructions of
a troubled statute, one which specifically makes chapter 35’s
tax exemption applicable to the Nations, and one which
specifically does not. Breaking interpretive ties is one of
the least controversial uses of any canon of statutory con-
struction. See Eskridge, Frickey, & Garrett, Legislation
and Statutory Interpretation, at 341 (“The weakest kind of
substantive canon operates merely as a tiebreaker at the end
of the interpretive analysis”).
Faced with the unhappy choice of determining which part
of a flawed statutory section is in error, I would thus rely
upon the long-established Indian canon of construction and
adopt the reading most favorable to the Nations.