On June 25, 2021, the U.S. Supreme Court confirmed Alaska Native Corporations’ (ANCs) eligibility to receive CARES Act coronavirus relief funds when it determined that ANCs meet the Act’s definition of “Indian tribe.” This outcome preserves ANCs’ status and ability to participate in government contracting and compacting and provide programs and services to Alaska Natives. However, the decision may also spur debate over whether, in light of the Court’s reasoning, ANCs now have expanded eligibility for some federal Indian programs and services previously reserved to federally recognized tribes.
The CARES Act provided, among other things, money to state, municipal, and tribal governments to respond to the economic crisis caused by the COVID-19 pandemic. When Congress enacted the legislation in March 2020, it defined “Tribal government”[1] as the “recognized governing body of an Indian tribe,” and incorporated the Indian Self-Determination and Education Act’s (ISDA) definition of “Indian tribe”:
[A]ny 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.[2]
In April 2020, the U.S. Treasury Department (Treasury) set aside $8 billion in CARES Act coronavirus relief funds for Tribal governments.[3] Treasury announced that ANCs would be eligible to apply for and receive up to $500 million of those funds because they qualified as “Tribal governments” under the CARES Act.
Since ISDA’s enactment in 1976, Congress had repeatedly used ISDA’s definition of “Indian tribe” in legislation enabling ANCs to provide services and programs to Alaska Natives,[4] and for decades the Interior Department interpreted that definition as including ANCs. Previous challenges by tribes to agency interpretations of this definition were unsuccessful.[5]
Nonetheless, several tribes sued Treasury, arguing that only federally recognized tribes, and not ANCs, met ISDA’s definition of “Indian tribe.” Treasury successfully defended its interpretation on summary judgment at trial, but after the D.C. Circuit Court of Appeals reversed that determination, Treasury and ANCs petitioned for, and received, a writ of certiorari to the U.S. Supreme Court. In a 6-3 decision authored by Justice Sotomayor, the Court determined that ANCs satisfy ISDA’s definition of “Indian tribe.”[6]
The Court began by interpreting the definition’s plain language, noting that ANCs are clearly included in the definition’s list of entities that might count as Indian tribes. But whether ANCs are also “recognized as eligible” for special federal Indian programs was a trickier question. ANCs are eligible for benefits under the Alaska Native Claims Settlement Act. Those benefits, the Court held, count as “special programs and services provided by the United States to Indians because of their status as Indians,” therefore satisfying the recognized-as-eligible clause and qualifying ANCs as “Indian tribe[s]” under ISDA’s definition. While this reasoning affirms that ANCSA is Indian legislation, and it also characterized it as “a special program provided by the United States to ‘Indians.’ ” Given that, the Court reasoned, “[i]t should come as no surprise that Congress made ANCs eligible to contract under ISDA.” However, this reasoning might also raise the question whether viewing ANCSA as a special Indian program has broader implications and might expand the universe of federal Indian programs applicable to ANCs.
The Court then rejected a “term-of-art” reading of ISDA’s Indian tribe definition. Under such a reading, “recognized as eligible” would be a term of art that means only federally recognized tribes. The Court noted that statutes enacted before and after ISDA did not support that argument and explained that even if ANCs did not satisfy the recognized-as-eligible clause, they must still meet ISDA’s definition.
The Court also addressed a “series qualifier canon” argument that because the modifying clause at the end of a list—the “recognized-as-eligible clause” in ISDA’s definition—typically applies to all the items in the list, it should apply to ANCs. The Court noted that this canon does not apply when it would result in an interpretation that does not make sense in context. And it rejected the series qualifier argument because applying a “‘federally recognized’ requirement to ANCs is implausible in text.”
Finally, the Court brushed aside concerns that its holding would vest ANCs with new, tribal authority. The Court concluded that its opinion “merely confirms” ANCs’ existing authority, including the ability to contract with the federal government under ISDA. This is, in effect, an affirmation of longstanding interpretations of ANCs’ roles in the ecosystem of federal Native programs in Alaska. As the Court explained, it “affirms what the Federal Government has maintained for almost half a century: ANCs are Indian tribes under ISDA.”
Justice Gorsuch dissented, joined by Justices Thomas and Kagan. First, relying on the series-qualifier argument rejected by the majority, the dissent concluded that ISDA’s “recognized-as-eligible” requirement must be read to apply ANCs. From there, the dissent reasons that the clause requires the “sort of formal government-to-government recognition that triggers eligibility for the full ‘panoply of benefits and services’ the federal government provides to Indians”—a standard that ANCs cannot meet. In sum, the dissent concluded that “an ordinary reader would understand that the recognition clause applies the same way to all Indian groups” and “there’s just no way to read the text to include ANCs as ‘Tribal governments’ for purposes of the CARES Act.”
As a result of this outcome, ANCs remain eligible to continue contracting and compacting with the federal government to provide programs and services to Alaska Natives. ANCs will also begin receiving CARES Act funds, and should start considering uses of those funds in compliance with Treasury’s program guidance.[7] But the opinion’s reasoning that ANCs meet the plain language of ISDA’s definition also raises questions whether the opinion may have broader implications for the universe of programs and services applicable to ANCs.
[1] 42 U.S.C. § 801(g)(5).
[2] 42 U.S.C. § 801(g)(1) (incorporating definition at 25 U.S.C. § 5304(e)).
[3] 42 U.S.C. § 801(a)(2)(B).
[4] See 25 U.S.C. § 450f (authorizing Secretaries of Interior and Health and Human Services to compact with ANCs to provide funding for Indian-run services programs).
[5] See Cook Inlet Native Ass’n v. Bowen, 810 F.2d 1471 (9th Cir. 1987) (upholding Bureau of Indian Affairs interpretation of ISDA definition of “Indian tribe” as including Alaska Native regional for-profit corporations); see also Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986 (9th Cir. 1999).
[6] Yellen v. Confederated Tribes of the Chehalis Rsrv., No. 20-543, 2021 WL 2599453 (U.S. June 25, 2021).
[7] See 86 Fed.Reg. 4182 (January 15, 2021).