Supreme Court Confirms Alaska Native Corporation Eligibility for CARES Act Relief
Once again recognizing “the unique circumstances of Alaska and its indigenous population,” the U.S. Supreme Court recently confirmed the special status that Congress has afforded to Alaska Native corporations under the Alaska Native Claims Settlement Act (ANCSA), as amended.
On June 25, 2021, in Yellen v. Confederated Tribes of the Chehalis Reservation, the Court ruled that Alaska Native corporations (ANCs) are “Indian tribes” under the Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA or ISDA) and are therefore eligible to receive certain COVID-19 relief funds made available under Title V of the CARES Act. Although the case itself, together with a related case, Alaska Native Village Corp. Association v. Confederated Tribes of the Chehalis Reservation, was concerned specifically with the CARES Act funds, because many other federal programs incorporate the ISDEAA definition of “Indian tribe” by reference or utilize similar language, the decision has important potential implications for the continuing and future participation by ANCs in a range of other programs benefitting Alaska Natives.
In March 2020, in Title V of the CARES Act, Congress appropriated $8 billion to “Tribal governments” to aid those entities in responding to the COVID-19 public health emergency. The CARES Act defines “Tribal governments” as “the recognized governing body of an Indian Tribe,” and specified that “[t]he term ‘Indian Tribe’ has the meaning given that term” in section 4(e) of the ISDEAA. Under ISDEAA, an “Indian Tribe” is:
any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
In April 2020, the U.S. Department of Treasury determined that, under these definitions, ANCs were eligible to receive relief under Title V of the CARES Act, and the Department set aside a portion of the $8 billion for payment to ANCs. A number of federally recognized tribes subsequently challenged this determination, arguing that ANCs were not eligible for Title V payments because (1) ANCs do not meet ISDEAA’s definition of “Indian tribe,” and (2) ANCs are not or do not have a “recognized governing body” of an Indian tribe.
Neither sovereign Tribes nor typical for-profit corporations, ANCs are unique entities established pursuant to the direction of Congress to implement the settlement of Alaska Natives’ aboriginal land claims under the Alaska Native Claims Settlement Act (ANCSA) in 1971. Generally eschewing the Tribal reservation and trusteeship model used to address Native lands in the lower-48 states, Congress instead settled Alaska Native aboriginal land claims in exchange for title to approximately 44 million acres of land and a payment of almost $1 billion, and directed the establishment of ANCs, including 12 regional corporations and more than 200 village corporations, to receive and manage the benefits of the settlement on behalf of their Alaska Native shareholders. For 50 years, consistent with ANCSA, ANCs have served a key role in promoting the health, education, and welfare of Alaska Natives and Alaska Native communities, often working in cooperation with Alaska Native villages (which, by and large, are federally recognized Tribes) and other Native organizations.
After first finding that the plaintiffs were likely to prevail on the merits and granting their request for a preliminary injunction in April 2020, in June 2020, Judge Amit P. Mehta of the U.S. District Court for the District of Columbia ultimately held that ANCs fall within ISDEAA’s definition of Indian tribe and therefore qualify for emergency relief funding under Title V of the CARES Act. In September 2020, the U.S. Court of Appeals for the D.C. Circuit reversed, holding that ANCs were not eligible for emergency aid under Title V of the CARES Act because ANCs have not been recognized as eligible for special programs and services provided by United States to Indians because of their status as Indians, which the Court of Appeals found to be required to qualify as “Indian tribes” under ISDEAA. In so holding, the D.C. Circuit created a split with an earlier decision by the U.S. Court of Appeals for the Ninth Circuit, Cook Inlet Native Association v. Bowen, which had held that ANCs are “Indian tribes” under ISDEAA, irrespective of the “recognized as eligible” clause in the definition of that term. The United States and several ANCs and ANC groups subsequently took the D.C. Circuit’s opinion case up to the Supreme Court.
In a 6-3 opinion delivered by Justice Sotomayor and joined in full by Chief Justice Roberts and Justices Breyer, Kavanaugh, and Barrett, and in part by Justice Alito, the Supreme Court reversed: “The Court today affirms what the Federal Government has maintained for almost half a century: ANCs are Indian tribes under ISDA. For that reason, they are Indian tribes under the CARES Act and eligible for Title V funding.”
In so ruling, the Court first held that ANCs satisfy the “recognized as eligible” clause in the ISDEAA definition, but went on to say that even if they did not, they would still qualify under the definition. In the first instance, the Court explained that ANCs were established pursuant to ANCSA and therefore are “recognized as eligible” for ANCSA’s benefits. Such eligibility, the Court concluded after recounting provisions of ANCSA describing the roles and responsibilities of ANCs and noting that ANCSA is “Indian legislation enacted by Congress pursuant to its plenary authority under the Constitution of the United States to regulate Indian affairs,” counts as eligibility for “the special programs and services provided by the United States to Indians because of their status as Indians.” “Congress’ express inclusion of ANCs” in the ISDEAA definition, the Court said, “confirms that eligibility for ANCSA’s benefits alone is eligibility enough to be an Indian tribe.”
The Court further rejected the Tribes’ argument that “recognized” as used in the “recognized as eligible” clause should be read as a term of art to refer exclusively to federally recognized tribes having a government-to-government relationship with the United States. “Recognized,” the Court stated, “is too common and context dependent a word to bear so loaded a meaning wherever it appears, even in laws concerning Native Americans and Alaska Natives.”
But even if they did not satisfy the “recognized as eligible” clause, the Court concluded that ANCs would still meet ISDEAA’s definition of “Indian tribe.” Pointing to the fact that no Alaska Native villages or ANCs had been recognized for a government-to-government relationship with the United States when ISDEAA was enacted in 1975, and the high unlikelihood at that time that ANCs ever would be recognized as sovereign political entities, the Court explained that applying the “recognized as eligible” clause to these entities would have rendered the clause specifically “including” the Alaska groups without effect. Noting that certain grammatical canons of interpretation must give way when applying them would yield a “contextually implausible outcome,” the Court concluded: “Any grammatical awkwardness involved in the recognized-as-eligible clause skipping over the Alaska clause pales in comparison to the incongruity of forever excluding all ANCs from an ‘Indian Tribe’ definition whose most prominent feature is that it specifically includes them.”
The Court dismissed concerns that its holding would “open the door” to other Indian groups that have not been federally recognized from being deemed Indian tribes under ISDEAA. ANCs, the Court reasoned, were “part of a legislative experiment tailored to the unique circumstances of Alaska and recreated nowhere else” and no other entities other than Alaska Native villages—which are themselves federally recognized—are expressly included in ISDEAA’s definition of “Indian tribe.” It also disagreed that its decision “vest[s] ANCs with new and untold tribal powers: “It merely confirms the powers Congress expressly afforded ANCs and that the Executive Branch has long understood ANCs to possess.”
Following the decision, although some Tribal Nations and other groups expressed disappointment with the Court’s ruling, key groups representing Alaska Natives and American Indians in the lower-48 states issued statements calling for the broader Native community to work together going forward in the interest of all indigenous people:
“ARA and ANVCA are committed to building greater understanding about the critical roles ANCs play in the lives of Alaska Native people, and we stand ready to unite with Indian Country to better serve all of our Indigenous communities.” ANCSA Regional Association and Alaska Native Village Corporation Association (June 25, 2021)
“NCAI looks forward to continuing our work representing tribal governments and working with Alaska Native Corporations, tribal partners, and other allies to ensure that the United States meets its treaty obligations and its trust responsibilities to moving forward.” National Congress of American Indians (NCAI) President Fawn Sharp (June 25, 2021)
This dispute over CARES Act relief funds focused attention on the importance of recognizing and respecting the sovereign status of Tribes and their government-to-government relationship with the United States, while also recognizing and respecting the unique status and role of ANCs in serving Alaska Natives and Alaska Native communities. While the Court’s decision brings closure to the CARES Act litigation, these issues can be expected to remain a focus of policymakers and stakeholders going forward.