Yellen v. Confederated Tribes of the Chehalis Reservation

Issues

Are Alaska Native Regional Corporations and Alaska Native Village Corporations considered “Indian tribe[s]” under the Indian Self-Determination and Education Assistance Act?

Oral argument:

April 19, 2021

Court below:

United States Court of Appeals for the D.C. Circuit

This case asks whether the Alaska Native Corporations (“ANCs”) are entitled to relief provided to “Indian Tribes” under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The CARES Act incorporates the definition of “Indian tribe[s]” from the Indian Self-Determination and Education Assistance Act. Petitioners U.S. Treasury and ANCs argue that Congress expressly included the Alaska Native Corporations in the definition of Indian tribes and that the plain-meaning of the term “recognition” in the statute supports this inclusion. Respondent Confederated Tribes of the Chehalis Reservation and Ute Indian Tribe of the Uintah and Ouray Reservation argue that the ANCs do not qualify as Indian tribes because they are not formally recognized by a governmental authority or Congress as a sovereign tribe. The Supreme Court’s decision will impact the ability of Alaska Native Corporations to access funding through federal programs.

Questions as Framed for the Court by the Parties

Whether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the Coronavirus Aid, Relief, and Economic Security Act.

Facts

In March of 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to provide financial relief from the effects of the Covid-19 pandemic. Confederated Tribes v. Mnuchin at 19. Title V of the CARES Act set aside $8 billion in relief funding for “payments to Tribal governments.” Id. at 20. The CARES Act defines “Tribal governments” as “the recognized governing body of an Indian Tribe” and points to another statute—the Indian Self-Determination and Education Assistance Act (“ISDA”)—to further define the term “Indian Tribe.” Id. Under the ISDA, an Indian tribe includes “any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act” (“ANCSA”). Id. at 19. The ISDA also states that for an entity to fall within the definition of “Indian tribe,” it must be “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” Id.

Because Alaska Natives had historically organized “in small, isolated villages” rather than in larger tribal groups, the federal government did not initially recognize them as Indian tribes. Id. at 18. After delaying the question of land claims by Alaska Natives, Congress passed the ANCSA in 1971 with the purpose of “settl[ing] all land claims by Alaska Natives.” Id. at 18. Rather than allocate reservation land—as it had traditionally done for indigenous peoples—Congress decided upon a novel approach to the land-claim issue, aiming to “speed assimilation of Alaska Natives into corporate America.” Id. ANCSA called for the creation of two types of “state-chartered private business corporations”—Alaska Native Regional Corporations and Alaska Native Village Corporations (collectively the “ANCs”). Id. The ANCSA authorized the ANCs to receive nearly $1 billion in federal funding and 44 million acres of Alaska land, which the corporations managed on behalf of specific Alaska-Native regions and villages. Id. at 18–19.

With the passage of the CARES Act, the U.S. Department of the Treasury sought to apportion the Title V funds and determined that the ANCs were eligible under the CARES Act to receive relief funding. Id. at 20. Soon afterward, three groups of Indian tribes separately filed lawsuits to challenge this determination. Id. The tribes argued that the ANCs are not eligible for funding under the CARES Act because the ANCs fail to meet the requirement of the final clause in the ISDA’s definition. Id. To receive Title V funds under the ISDA, an entity must, under 25 U.S.C. § 5304(e), be “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” Id.

The district court consolidated the cases and issued a preliminary injunction to halt the disbursement of Title V funds to the ANCs. Id. at 20. The court ultimately found in favor of the government, holding that “ANCs must qualify as Indian tribes to give effect to their express inclusion in the ISDA, even though no ANC has been recognized as an Indian tribe.” Id. However, the district court granted the tribes’ motion for an injunction, which barred the ANCs’ funds disbursement while the case was pending appeal. Id.

On appeal, the Court of Appeals for the District of Columbia Circuit reversed the district court’s finding, holding instead that the ANCs do not fall within the ISDA’s statutory definition of “Indian tribe[s]” because “no ANC has been federally ‘recognized’ as an Indian tribe.” Id. at 22–23. The Court of Appeals interpreted the word “recognized” as a “legal term of art” denoting a political status, rather than a term that merely expresses the receipt of “Indian-related [federal] funding.” Id. at 23, 25. The court understood the ISDA’s explicit mention of the ANCs in its definition of “Indian tribe” as leaving the door open for future recognition of the ANCs. Id. at 26–28. The court also rejected the government’s argument for deference to the Department of the Treasury’s determination. Id. at 28.

The Supreme Court granted the government’s petition for a writ of certiorari and consolidated the case with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation. The Court will hear oral argument on April 19, 2021.

Analysis

CONGRESSIONAL INTENT

Janet L. Yellen, in her official capacity as Secretary of the Treasury (“Treasury”) and the ANCs argue that Congress deliberately included the ANCs in the ISDA’s definition of “Indian tribe” because the ANCs were expressly included to make them eligible as tribes in response to concerns that the earlier law did not cover the ANCs. Brief for Federal Petitioners, Janet L. Yellen, Secretary of the Treasury at 19–21; Brief for Private Petitioners, Alaska Native Village Corporation Association, Inc. et al. at 25–29. The Treasury and the ANCs note that the agencies administering the ISDA—Department of the Interior and the Indian Health Service—as well as the Ninth Circuit have interpreted the statute to include the ANCs as tribes; and that Congress ratified the settled administrative and judicial interpretation by reenacting the definition without change in 1988 while making numerous other changes to the ISDA. Brief for Federal Petitioners at 24–28; Brief for Private Petitioners at 22, 36–38. The ANCs further argue that Congress, which had notice of both the agency and the judicial interpretation, intended to include the ANCs as Indian Tribes as they incorporated the ISDA’s definition in the CARES Act. Brief of Private Petitioners at 37. The Treasury also argues that Congress could have specifically excluded the ANCs when incorporating the definition of “Indian Tribe” in the CARES Act, but declined to do so. Brief for Federal Petitioners at 34. The Treasury and the ANCs argue that reading the ISDA definition such that no ANC has ever been eligible to be treated as an Indian tribe is inconsistent with the text of other statutes that presuppose that ANC’s are included in the ISDA’s definition and ignores prior agency interpretation to that effect. Id. at 35–36; Brief for Private Petitioners at 50. The ANCs argue that the Court of Appeals’ reading not only excludes the ANCs from the CARES Act but also dozens of other federal programs that benefit the ANCs. Brief for Private Petitioners at 45.

Ute Indian Tribe of the Uintah and Ouray Reservation (“UIT”) and Confederated Tribes of the Chehalis Reservation (“CTCR”) claim that the ANCs do not qualify as Indian Tribes because, under the ISDA’s plain language, the definition of Indian Tribes only includes entities that are “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” Brief for Separate Respondents, Ute Indian Tribe of the Uintah and Ouray Reservation at 27–29; Brief for Respondents, Confederated Tribes of the Chehalis Reservation at 18–22. UIT compares the inclusion of the ANCs in the ISDA definition to the inclusion of parishes in the CARES act definition of “unit of local government,” which is limited by the qualifier that the parish’s population must exceed 500,000. Brief for Separate Respondents at 30–31. UIT argues that just as parishes under 500,000 population do not meet the definition of “unit of local government,” the over-inclusion of the ANCs as a category in the ISDA definition cannot make them an Indian Tribe unless they meet the qualifier, i.e., that they are federally recognized because of their status as Indians. Id. at 27, 31. CTCR further notes that Congress intentionally listed the ANCs before the recognition clause, and not after it, to treat them the same as other groups. Brief for Respondents at 24. CTCR also argues that the ISDA definition provides for a disjunctive listing of numerous tribes allowing the universe of “Indian Tribes” to change as required. Id. at 19–20, 32. Based on the statute’s structure, the CTCR further contends that the prior-construction canon (which states that if a uniform construction of a term is proved, it must be followed) cannot be used to dispute the plain text of the statute. Id. at 38. CTCR argues that even if the statute were ambiguous, the prior-construction cannon cannot be applied because there have been inconsistent agency interpretations. Id. at 39. CTCR asserts that the informal memorandum relied on by the petitioner does not mention or attempt to reconcile with the Department of Interior’s other regulations and has never taken root in agency practice referencing the Indian Health Service guidelines, which do not recognize benefits for ANCs in Alaska. Id. at 39–41. CTCR further contends that Congress could not have ratified the judicial interpretation as there was no settled judicial interpretation nor any evidence that Congress was aware of this interpretation. Id. at 47–48.

RECOGNITION AS A TERM OF ART

The Treasury argues that making “recognition” a term of art in Indian law, i.e. requiring formal acknowledgment of a governmental relationship with a sovereign Indian tribe, would render the express inclusion of the ANCs a dead letter because the ANCs lack governmental authority and thus are ineligible to be federally recognized as sovereign Indian tribes. Brief for Federal Petitioners at 40–43. Treasury argues that, unlike Alaska Native villages, the ANCs have never met the standard of administrative recognition as a sovereign Indian tribe, and therefore the Court of Appeals erred in holding that the inclusion of the ANCs was a mere indication that the ANCs might be federally recognized in the future. Id. at 42–43. The ANCs further highlight that other statutes such as the Native American Housing Assistance and Self-Determination Act (“NAHASDA”) explicitly include the ANCs under the term “federally recognized tribe.” Brief for Private Petitioners at 39–41. Treasury and the ANCs argue that applying the series-qualifier canon to read “recognized” as a term of art would indicate that Congress deliberately included the ANCs in one clause of the ISDA definition and then excluded them in the next clause. Brief for Federal Petitioners at 43–45; Brief for Private Petitioners at 29. Treasury and the ANCs argue that “meaning” must be favored over the series-qualifier canon because principles of interpretation would not allow such a counterintuitive result. Brief for Federal Petitioners at 43–45; Brief for Private Petitioners at 29. The ANCs argue that the plain meaning must apply, rather than the term-of-art meaning because ANCs have been eligible for special-federal-Indian programs since their establishment. Brief for Private Petitioners at 30.

The CTCR argues that making recognition a term of art does not render the listing of ANCs to be superfluous because Congress or the Department of Interior can recognize ANCs using their plenary power over Indian affairs. Brief for Respondents at 30–33. CTCR and UIT argue that the series-qualifier canon applies such that even though ANCs are included in the ISDA definition, they must be federally recognized as per the qualifier to be considered Indian Tribes. Id. at 18–21; Brief of Separate Respondents at 28. UIT asserts that the series-qualifier canon must apply to exclude ANC as an Indian tribe, because the ANCs assertion that the qualifier applies to all terms other than the last, is contrary to basic English. Brief of Separate Respondents at 28–33. CTCR also argues that for grammatical coherence, the recognition clause must be a limiting clause that applies to all listed entities—including ANCs. Id. at 23–24. CTCR contends that numerous statutes demonstrate the use of formal recognition to condition eligibility for Indian tribes and argues that ANCs are not eligible under the CARES Act because no ANC is federally recognized. Id. at 25–28. CTCR argues that Congress deliberately placed ANCs before, and not after, the recognition clause to treat them the same as other groups and ensure that only tribes that were formally recognized would qualify as “Indian Tribe[s].” Brief for Respondents at 21–22. UIT claims that the ANC’s approach is counterintuitive because it claims that precisely because no ANC meets the statutory qualifications of an Indian Tribe, every ANC must be an Indian tribe. Brief for Respondents at 32–33.

Discussion

PROTECTING THE MOST VULNERABLE POPULATIONS

The state of Alaska, in support of the U.S. Treasury and ANCs, notes that Alaska Natives have been disproportionately impacted by the pandemic, accounting for 16% of the state’s population but making up nearly 40% of its Covid-related deaths. Brief of Amicus Curiae State of Alaska, in Support of Petitioners at 27–28. The State notes that many Alaska Natives face geographical challenges to accessing social services, often requiring travel by boat, plane, or snowmobile; because of this, the State emphasizes that the ANCs play a critical role in providing “on-the-ground health and social services and programs” to those for whom such travel would be impossible. Id. at 24–25. Moreover, the State argues that it cannot simply “step into the shoes of the federal government” to assume the role of the ANCs, which are desperately needed to protect Alaska Natives against Covid-19. Id. at 27, 30. The State points to the significant drop in tourism and in oil production, Alaska’s primary revenue sources, and the consequential layoffs by companies of their workers to explain why its state-run programs are “already financially strained.” Id. at 28–29. The State warns that cutting the ANCs’ funding would “create a chasm that the State simply cannot fill.” Id. at 29. In agreement, Senators Lisa Murkowski and Dan Sullivan and Congressman Don Young, also in support of the U.S. Treasury and ANCs, point out that Alaska has the “highest vaccination rate in the nation,” and they credit the success of the program to the work of the ANCs. Brief of Amici Curiae Senators Lisa Murkowski and Dan Sullivan, and Congressman Don Young, in Support of Petitioners at 30–31. The Senators suggest that failing to recognize the ANCs as Indian tribes would result in the “collapse” of Alaska’s efforts to curb the negative public health effects stemming from the Covid-19 pandemic. Id.

By contrast, the Confederated Tribes of the Chehalis Reservation (“CTCR”) argue that some ANCs, like Cook Inlet Region, Inc., would be unaffected by a lack of funding through the CARES Act because they would be eligible for funding through other statutes that provide funding for healthcare services. Brief for Respondents, CTCR at 52. Moreover, CTCR suggests that Alaska is not alone in facing geographical challenges that make delivery of services difficult, and that Congress “knows how to address” such issues when they arise. Id. at 53. In agreement, the Ute Indian Tribe of the Uintah and Ouray Reservation ("UIT") notes that every state, not just Alaska, is suffering the effects of the pandemic and that Alaska has “already received far more per capita than most other states to provide benefits and services to all Alaska residents[.]” Brief for Separate Respondents, UIT at 35. UIT also asserts that Alaska can allocate funds it otherwise receives through the CARES Act—$1.25 billion—however the State pleases, including by paying the ANCs for their services. Id. UIT argues that the Petitioners’ framing of the financial situation is improper because it suggests that people in need of Covid-related services will only receive those services if the ANCs are funded. Id. at 37. If that were so, UIT continues, such a design for the provision of services would be “morally wrong, wrong as a government policy, and probably also unlawful.” Id. The National Congress of American Indians agrees with UIT and argues that recognizing the ANCs as Indian tribes would allow the ANCs to achieve the “favored-nation status” reserved for Indian tribes without completing any of the established processes to obtain federal recognition. Brief of Amicus Curiae National Congress of American Indians et al., in Support of Respondents at 16–19.

CONSEQUENCES ON OTHER FEDERALLY FUNDED PROGRAMS

The Association of Alaska Housing Authorities (“Association”), in support of the U.S. Treasury and ANCs, suggests that excluding the ANCs from the ISDA’s definition significantly and severely impacts efforts to support Alaska-Native communities through other federal programs, such as the Native American Housing Assistance and Self-Determination Act (“NAHASDA”). Brief of Amicus Curiae Association of Alaska Housing Authorities, in Support of Petitioners at 21. The Association argues that the state and local governments do not have the resources to address the housing needs of Alaska Natives, with NAHASDA funding alone generally equaling two-thirds of the entire amount of federal funding available for non-NAHASDA HUD programs. Id. In agreement, the Cook Inlet Region, Inc. (“CIRI”), also in support of the U.S. Treasury and ANCs, notes that ANCs provide a myriad of social services in addition to housing services, including: “child care; cash assistance; comprehensive child welfare intervention and prevention; [and] victim and survivor services,” among others. Brief of Amicus Curiae Cook Inlet Region, Inc., in Support of Petitioners at 18. Because the ANCs have always been “controlled by [] Native shareholders,” CIRI contends, excluding the ANCs from the ISDA’s definition would undercut efforts to promote not just the health, but also the “welfare, and cultural identity” of Alaska’s Native population. Id. at 10–11.

In opposition, the CTCR asserts that ascribing tribal status to the ANCs would increase competition for governmental funding for native communities and would jeopardize the authority of tribal governments. Brief for Respondents at 54. Noting that many ANCs are “billion-dollar enterprises,” CTCR argues that the ANCs would likely use tribal status to “advance their commercial interests.” Id. Because numerous federal statutes use the ISDA definition to determine funding eligibility, CTCR suggests that putting the ANCs on equal footing with federally recognized tribes would “touch[] all aspects of federal Indian law and policy and transform[] the balance of governmental authority in Alaska.” Id.