By Gregory Ablavsky
on April 16, 2021
at 8:18 p.m.
Are Alaska Native Corporations – specialty groups that Congress founded in 1971 when it dissolved native claims in Alaska – “Indian tribe[s]”According to the Indian Law on Self-Determination and Education Assistance? On Monday, the Supreme Court will hear arguments on the matter in the Yellen v. Confederate Tribes of the Chehalis Reservation. In the immediate vicinity of the answer is billions of dollars in federal funding from the CARES Act. The outcome could also have longer-term consequences for how and from whom Alaska’s indigenous people receive essential services.
First, some background information. Just as the court was confronted with the complex past of the Oklahoma natives in the last term of McGirt v Oklahoma, Chehalis delves into the unique legal history of the natives of Alaska. Although Alaska became part of the United States in 1867, the federal government paid unsettled attention to the status of the indigenous peoples of the new territory. When Alaska became a state in 1959 and oil was discovered soon after in Prudhoe Bay, federal law left many questions unanswered – especially land ownership. The Alaskan indigenous people pushed for permanent ownership of much of the new state. In response, Congress enacted the Alaska Native Claims Settlement Act in 1971, which erased all Alaskan land claims in exchange for nearly $ 1 billion in compensation and 38 million acres of real estate.
Most important to Chehalis, ANCSA departed from longstanding models of Indian federal law that governed the lower 48 states. ANCSA formed two groups of for-profit Alaska Native companies: two hundred village companies and thirteen larger regional companies. Because of their place of residence or their origins, the Alaskan indigenous people became shareholders of both a village and a regional company. Both groups of companies received land and money as part of the ANCSA. Today, the regional ANCs in particular are among the most important companies in Alaska, with billions in revenue from energy development, tourism and public contracts.
However, ANCSA did not clarify the status of the Alaskan indigenous governments. Federal law had long spoken of the federal government’s recognition of “Indian tribes”, a process formalized in 1978 by the Bureau of Indian Affairs. In 1993, after a long period of uncertainty, the office determined that the Alaskan indigenous villages would continue to remain nationally recognized Native American tribes with inherent sovereignty under the federal government right. The next year, Congress passed the Listing Act requiring the office to publish an annual official list of all nationally recognized tribes eligible for United States special programs and services for Indian based on their Indian status. “Today, 574 nationally recognized tribes are listed, including 229 tribes in Alaska.
Because of that history, there are three types of Native Alaskan people today: Alaska Native Village Corporations, Alaska Native Regional Corporations, and nationally recognized tribes often referred to as the Alaska Native Village. The first two are for-profit companies that also provide some services to Alaskan Native Americans. The third is sovereign governments.
The importance of these distinctions is at the center of the current legal battle over the CARES Act 2020. The act provided emergency aid to states, territories and local governments during the coronavirus pandemic amounting to US $ 150 billion, including US $ 8 billion after intense negotiations Dollars for tribes. The law defined eligible “tribes” with reference to India’s 1975 Self-Determination and Assistance to Education Act, a key law that ushered in the modern era by allowing the tribes to enter into contracts with the federal government for the provision of services in lieu of Federal agencies complete the federal embrace of indigenous self-determination. The ISDA defines tribes as follows:
“Native American Tribe” means a Native American tribe, Native American band, nation, or other organized group or community, including a village or Native Alaska regional or village body, as defined or incorporated under the Alaska Native Claims Settlement Act, which Recognized as eligible are the specific programs and services that the United States offers to Indians because of their Indian status.
Finance has determined that this language includes the Alaskan Native Corporations, making them eligible for CARES Act funding. A group of nationally recognized tribes from various states, including Alaska, disagreed and sued. A federal district court in DC was on the Treasury Department’s side, but the U.S. Court of Appeals for the District of Columbia Circuit reversed and concluded that federal recognition is an art term that only applies to tribes on the annual List of offices listed that exclude Alaska Native Businesses. The DC Circuit concluded that the explicit inclusion of companies in the 1975 ISDA definition reflected uncertainty about whether they would later become nationally recognized tribes – which they have not to this day. The Treasury Department and an association of Alaska Native Village businesses appealed the decision to the Supreme Court.
Unsurprisingly, most of the Supreme Court briefing focuses on legal interpretation. In their briefs, both the Treasury Department and the Alaska Native Corporations oppose the use of the Series Qualifier Canon, the interpretation of the ISDA requirement of federal recognition to apply to all publicly traded companies, including companies. Such a reading, they argue, would make the explicit inclusion of companies in the definition of the ISDA superfluous and contradicts the history of legislation. They also question the historical design of the DC Circuit, noting that the uncertainty in the passage of the ISDA included the status of Native Alaskan governments rather than Alaskan Alaskan corporations – the uncertainty was resolved in 1993 when the office opened the villages recognized by the Alaskan indigenous peoples as nationally recognized tribes. They also claim that later laws, federal agencies, and appeals court rulings have already recognized the companies as eligible for federal contracts under the ISDA.
The Confederate Tribes of the Chehalis Reservation, along with other tribes who question the Treasury Department’s interpretation, read the ISDA provision differently. They insist that the clear text of the provision, in particular the word “including”, stipulates that the recognition requirement applies to all of the companies listed. This language, they argue, makes the inclusion of Alaska Native companies by name redundant and not superfluous: that is, the language explicitly preserves the possibility that Congress could decide at a later date to recognize the companies, although it has not yet done so is how it was done. They also suggest that there is no such thing as a “well-established” agency or circuit design of the ISDA language, taking into account both the confusion and the lack of existing materials on the matter.
In a separate letter, the Ute Indian Tribe of the Uintah and Ouray Reservations offers an additional argument against including companies in the CARES Act eligibility: Title V of the Act limited funding to “tribal governments” which it defined as “recognized” Native American Tribe Governing Body ”before referring to the ISDA definition. This definition, the Ute tribe argues, makes the companies separately ineligible as they are not tribal governments. In their pleadings, both the finance department and the companies counter that the CARES Act defines a “recognized governing body” with reference to the ISDA definition. No new, free-standing test for a tribal unit has been introduced.
The parties are also addressing the broader issues of the controversy. The Alaska Native Corporations, backed by Amici, including the state of Alaska and its congressional delegation, argue that their nonprofit weapons provide vital Alaskan Native services such as health care and housing, especially in urban areas far removed from recognized tribes. Alaska’s mandate specifically includes a picture of the COVID-19 vaccine being delivered by a dog sled to underscore the key role the companies played during the pandemic. In response, the tribes – along with Amici, including a number of fewer than 48 states – argue that most of these examples are from Anchorage, where Congress has already provided local health care through special law. They further argue that the health needs of Alaska’s Native Americans have been and are being met by regional nonprofits. They also note that “[h]History is littered with claims, often made by the United States and costly to tribal citizens, that tribes would be best off if others were to govern on their behalf. “
Chehalis highlights one of the many ironies in the history of indigenous peoples and Indian federal law. In drafting ANCSA and forming Alaska Native Corporations, Congress specifically sought to avoid restoring the complexity that the Indian court’s jurisdiction had created in the lower 48 years. But as is so often the case with “solutions” in this area of law, the experimentation of Congress has created more uncertainty and confusion, not less. The consequence, as this current litigation underscores, is that indigenous peoples are forced to enter a zero-sum competition for hard-won resources drawn from an often reluctant federal government. Whatever the case, it reaffirms the tremendous dedication to indigenous peoples in decisions that non-indigenous politicians have made in distant institutions that often imperfectly capture the lasting consequences of their policies.