Justices Consider Whether Treasury May Distribute CARES Act Funds for “Indian Tribes” to Alaska Native Corporations

Justices Consider Whether Treasury May Distribute CARES Act Funds for “Indian Tribes” to Alaska Native Corporations

Legal Sidebari
Justices Consider Whether Treasury May
Distribute CARES Act Funds for “Indian
Tribes” to Alaska Native Corporations
May 14, 2021
On April 19, 2021, the Supreme Court heard oral arguments in Yel en v. Confederated Tribes of the
Chehalis Indian Reservation (Chehalis). The case asks whether Alaska Native Corporations (ANCs) are
“Indian tribes” eligible to receive approximately $530 mil ion of the $8 bil ion al ocated to “Tribal
governments” in the Coronavirus Relief Fund provisions of the Coronavirus Aid, Relief, and Economic
Security Act (CARES Act). The 12 regional and 200 vil age ANCs are state-chartered corporations
authorized by the Alaska Native Claims Settlement Act of 1971 (ANCSA) to receive proceeds of the
settlement of Alaska Natives’ aboriginal land claims. Unlike traditional Alaska Native vil ages, ANCs are
not included on the Department of the Interior (DOI) list of federal y recognized tribes. Seventeen of
those federal y recognized Indian tribes are chal enging a Treasury Department determination that ANCs
qualify for the payments under the CARES Act’s definition of Indian tribe, which is from the Indian Self-
Determination and Education Assistance Act (ISDEAA) and is a definition used in roughly 150 other
statutes.
The U.S. District Court for the District of Columbia (district court) upheld Treasury’s original
determination that ANCs qualify for CARES Act payments. On September 25, 2020, a unanimous three-
judge panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) reversed,
holding that the ISDEAA definition of Indian tribe is a term of art that, while specifical y mentioning
ANCs, excludes them by separately requiring federal recognition. In general, the D.C. Circuit relied on
the text of the ISDEAA definition, while the district court also considered congressional intent and
legislative history. Treasury successful y petitioned the Supreme Court to review the D.C. Circuit’s
judgment. A decision in the case is expected before the Court’s summer recess.
Background
ANSCA
Congress enacted ANCSA in 1971 to settle Alaska Natives’ aboriginal land claims. To that end, ANCSA
extinguished al aboriginal claims to land in Alaska and terminated al but one of the existing reservations
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in the state. In exchange, Congress transferred 44 mil ion acres of Alaska land and $962.5 mil ion to the
two types of ANCs established in the statute—Alaska Native Regional Corporations (of which there now
are 12 out of an original 13) and Alaska Native Vil age Corporations (of which there are almost 200). The
ANCs are state-chartered, private, for-profit business corporations with Alaska Natives as shareholders.
Congress also granted the Alaska Native Regional Corporations statutory authority to provide “health,
education, and welfare benefits” to their Alaska Native shareholders and the shareholders’ family
members.
ISDEAA and List Act
Enacted in 1974, the ISDEAA authorizes the federal government to enter into contracts with Indian tribes
under which the government provides funds to an individual tribe to use in providing services to tribal
members. Although the ANCs do not exercise tribal sovereignty, DOI has “consistently adhered to the
view that ANCs qualify to be treated as Indian tribes” for purposes of the ISDEAA. The ISDEAA defines
Indian tribe as
any Indian tribe, band, nation, or other organized group or community, including any
Alaska Native vil age or regional or village corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act …, which is recognized as eligible
for the special programs and services provided by the United States to Indians because of
their status as Indians. [Emphasis added.]
The final clause of this definition (the recognition clause) is substantial y identical to language that
Congress had used to describe the defining elements of a federal y recognized Indian tribe in various
federal laws enacted before the ISDEAA. The recognition clause also mirrors language in the 1994 List
Act, which requires DOI to publish an annual list of “al Indian tribes which the Secretary recognizes to
be eligible for the special programs and services provided by the United States to Indians because of their
status as Indians.” [Emphasis added.] As codified in the List Act, recognition is a “formal political act
confirming the tribe’s existence as a distinct political society, and institutionalizing the government-to-
government relationship between the tribe and the federal government.” Federal recognition obligates
DOI to provide an array of benefits and services to the recognized tribe and its members. The ANCs are
not, and never have been, included on DOI’s list of federal y recognized Indian tribes, and DOI has
conceded that the ANCs could not be so recognized due to their corporate status.
The CARES Act directs Treasury to reserve $8 bil ion of the Coronavirus Relief Fund for payments to
“Tribal governments.” The act defines Tribal government as “the recognized governing body of an Indian
tribe” and Indian tribe by reference to the ISDEAA’s definition. Thus, the ANCs’ eligibility for CARES
Act funds requires an affirmative answer to each of two questions: (1) whether the ANCs qualify as
“Indian tribe[s]” under the ISDEAA’s definition of that term; and, (2) if so, whether the ANCs boards of
directors qualify as “Tribal government[s],” that is, the “recognized governing bod[ies] of an Indian
tribe.”
D. C. District Court Decision
On April 17, 2020, a smal group of tribes from Alaska and the lower 48 states sued to enjoin Treasury
from implementing its determination that the ANCs are eligible for CARES Act payments. The district
court rejected that chal enge on June 20, 2020, reasoning that Congress could not have intended the
ANCs’ eligibility for CARES Act payments to turn on their ability to satisfy the recognition clause. The
court identified three bases for its conclusion. First, the court reasoned that Congress’s inclusion of ANCs
in the ISDEAA’s definition of Indian tribe would not make sense if the recognition clause applied to
them, because Congress knew that ANCs could not satisfy the standard for federal recognition. Second,
the court opined that the legislative history of the ISDEAA shows “that Congress took pains to include

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ANCs in the ISDEAA definition.” Third, the court concluded that, “to the extent that the … definition of
‘Indian tribe’ contains any ambiguity,” the court should defer to DOI’s interpretation that ANCs qualify
as Indian tribes under that definition.
D. C. Circuit Decision
The D.C. Circuit reversed the district court’s judgment, holding that the plain text of the ISDEAA’s
definition unambiguously precludes finding that ANCs are Indian tribes for purposes of that statute or the
CARES Act. The court concluded that the only way to “constru[e] the statute to make grammatical sense”
is to read the recognition clause to “modify al the nouns in the definition,” including the ANCs.
According to the court’s reasoning, “it is not grammatical y possible for the recognition clause to modify”
every noun in the definition except “the one noun … that is its most immediate antecedent
(‘corporation’).”
The D.C. Circuit also reviewed the long history of uncertainty about the existence of tribal sovereignty in
Alaska until the 1993 decision of the Bureau of Indian Affairs to include only Alaska Native vil ages as
federal y recognized tribes. The court reasoned that because Congress enacted the ISDEAA during this
period when tribal sovereignty in Alaska remained uncertain, it made sense that Congress would have
phrased the definition of Indian tribe to include “whatever Native entities ultimately were recognized—
even though, as things later turned out, no ANCs were recognized.”
Supreme Court Oral Arguments
At oral argument, multiple Justices, including Chief Justice Roberts and Justice Thomas, expressed
skepticism of Treasury’s interpretation that the recognition clause of the ISDEAA’s definition of Indian
tribe does not apply to the ANCs. Some of the Justices, including Justice Kavanaugh, expressed concern
that affirming the D.C. Circuit’s judgment could have “ramifications” that might be “staggering” for other
programs using the ISDEAA definition. Justice Alito explored the “absurdity” and “blatant contradiction”
of concluding that Congress used statutory language that expressly includes ANCs among the Indian
groups that are eligible for a one-time distribution of CARES Act funds—while at the same time making
those distributions contingent on federal recognition—given that Congress is fully cognizant that the
ANCs have not been so recognized. Justice Barrett inquired about interpreting the recognition clause in its
“ordinary meaning”—referring to “an entity that contracts with the federal government for services that
are designed to go to Indians because of their status as Indians”—rather than as a term of art meaning
federal y recognized tribes.
The Justices also seemed aware of possible pandemic-related economic hardship to Alaska Natives in the
absence of CARES Act payments to the ANCs. For instance, Justice Sotomayor showed interest in the
possibility of a “CARES Act-specific decision” to avoid jeopardizing other programs using the ISDEAA
definition. Two Justices seemed to identify the CARES Act definition of Tribal government as
undercutting the notion that “recognized” is not a term of art, at least for CARES Act purposes. Justice
Gorsuch questioned how ANC boards of directors could qualify as “governing bodies” of “Tribal
governments,” and Justice Sotomayor cal ed the “governing body definition” the strongest argument for
why the ANCs do not qualify for CARES Act funds.
Considerations for Congress
This case is likely to have significant financial and legal effects. If the plaintiff tribes prevail in obtaining
an injunction against Treasury’s decision that ANCs are entitled to CARES Act funds, $162.3 mil ion in
such funds wil become available for distribution among other tribes throughout the United States. In that
circumstance, the ANCs and the Alaska Native population may turn to Congress to provide substitute
funding. No matter what the outcome, the case has highlighted ambiguity between a plain, grammatical

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reading of the ISDEAA’s definition of Indian tribe and the DOI’s long and consistent interpretation that
this definition includes ANCs. The courts’ struggle to construe the ISDEAA definition incorporated in the
CARES Act may also spur Congress to consider legislation clarifying whether and how the definition
should apply to ANCs for purposes of the ISDEAA and the approximately 150 other statutes that use that
same definition. And when defining Indian tribe in future legislation, Congress may seek to avoid
referencing the ISDEAA definition without specifying whether ANCs are included or excluded. For
example, one recent enactment—Section 501(k)(2)(C), Division N, Title V (the Coronavirus Response
and Relief title) of the Consolidated Appropriations Act, 2021, P.L. 116-260—defines Indian tribe in
language mirroring the ISDEAA definition but includes the following qualifying phrase: “For the
avoidance of doubt, the term Indian tribe shal include Alaska native corporations established pursuant to
the Alaska Native Claims Settlement Act (43 U.S.C. 1601, et seq.).”

Author Information

M. Maureen Murphy

Legislative Attorney

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