By Gregory Ablavsky
on April 20, 2021
at 11:43 a.m.
A view near Toklat, Alaska. 17 Native Tribes Question Alaskan Native Corporations Eligibility to Receive COVID-19 Aid Funds. (Pontla via Flickr)
With over $ 500 million in COVID-19 aid, the Supreme Court began its week debating whether the CARES Act’s definition of “Indian Tribe” – a definition found in over 150 other federal laws – Includes Native Alaska businesses. During an almost two-hour hearing in Yellen against the Confederate Tribes of the Chehalis Reservation, the judges expressed doubts about the textual arguments put forward by both sides, although they appeared to be aware of the consequences of a ruling against the companies.
The 2020 CARES bill allocated $ 8 billion to tribal support and adopted a definition from another bill, India’s 1975 Self-Determination and Aid to Education Act. ISDA states:
“Native American Tribe” means a Native American tribe, Native American band, nation, or other organized group or community, including a Native Alaska village or entity within the meaning of the Alaska Native Claims Settlement Act recognized as eligible special programs and services offered by the United States to Indians based on their status as Indian.
As this definition underscores, Alaska is distinctive: in 1971, ANCSA formed for-profit Alaska Native corporations, although the federal government later reaffirmed its government-to-government relationship with the enduring, sovereign Alaska Native communities. So the question is whether the Alaska Native Corporations count as an “Indian tribe” in addition to the sovereign tribes[s]”Under that definition. The Treasury Department and an association of Alaska Native Village companies argue that the explicit inclusion of companies in the ISDA definition makes them “tribes”. 17 federally recognized tribes from Alaska and the lower 48 states disagree, arguing that the final clause of the definition requires federal recognition that the companies fail to meet. The U.S. Court of Appeals for the District of Columbia Circuit sided with the recognized tribes and did not hold the definition for the companies.
During the dispute on Monday, the first thing on the agenda was Assistant Attorney General Matthew Guarnieri, who on behalf of the Treasury Department pleaded for the inclusion of Alaska-based companies. Guarnieri was immediately met with skepticism from Chief Justice John Roberts, who suggested that the government’s confidence in legislative history may once have had more weight in the court than it is now likely to be. Guarnieri insisted that the finance department make a textualistic argument, but Roberts’ question set the tone: Judges Clarence Thomas, Samuel Alito, and Elena Kagan urged Guarnieri to actually make a textualistic argument rather than as Alito put it, an “absurdity argument.” They also questioned him about his reluctance to argue for the ordinary meaning of the pillar of recognition – an alternative argument in the government task – instead of interpreting it as an art term. After repeating this survey several times, Guarnieri found that the federal government had an interest in maintaining the definition of “art” in order to prevent “groups of self-identified Indians” from demanding federal funding.
Although most of Guarnieri’s interviews focused on the textual meaning of the provision, a subtopic focused on practical aspects. Judges Sonia Sotomayor and Stephen Breyer expressed concern about the impact on other laws using the same definition, while Judge Brett Kavanaugh asked if a ruling against the companies would destabilize tribal health and social services in Alaska. The government was “seriously concerned” about the impact, Guarnieri noted, but admitted that “for practical reasons”, few ISDA agreements are currently in force.
Next, attorney Paul Clement stood on the virtual podium, arguing on behalf of the Alaska Native Corporations. Right from the start, Clement dealt intensively with the topic “Alaska is different” and emphasized the distinctive legislative scheme created by ANCSA. Unlike Guarnieri, Clement has fully adopted the ordinary meaning of the recognition clause. When asked by Justice Neil Gorsuch about the government’s concern about extending recognition too far, Clement reiterated the specificity of Alaska, noting that no one doubted that the companies were local entities running the self-governing body promote the indigenous people.
Clement’s questioning was similarly split between textual and consequential concerns. Kavanaugh and Justice Amy Coney Barrett asked Clement about his understanding and application of the canon to the concept of art, Barrett noting the peculiarity that “recognition” in 1975, when it was ISDA, did not necessarily have a meaning for the concept of art , it acquired one until 1994 with the adoption of the List Act. How should the court account for this change over time? Clement questioned the premise and suggested that it remained unclear even after the listing law that recognition was an art term, but suggested that it would be especially strange to read that understanding backwards on ISDA. On the next page, Thomas asked about the risk of double counting – that is, many Alaskan natives are both corporate shareholders and members of nationally recognized tribes. Clement replied that the overlap was not that significant and that administrative procedures could avoid double immersion. Breyer reiterated his concern about the impact of a ruling on the other 150 laws that use a similar term. Clement replied that the consequences would be more severe if companies were excluded than if they were included.
Attorney Jeffrey Rasmussen spoke out on behalf of the tribes questioning companies’ eligibility for CARES Act aid. (This was a little unexpected as Rasmussen only represents one of the 17 tribal respondents; the other 16 are all represented by the Indian law firm Kanji Katzen). He, too, faced questions about the interpretation of the text, including a targeted investigation by Gorsuch into the implications the court should draw from the decision by Congress to use ISDA in place of the List Act to define “tribe” in the CARES Act. When Rasmussen replied: “Nothing”, Gorsuch asked: “Isn’t that uncomfortable?” However, Rasmussen’s most sustained collaboration was with Alito, who repeatedly explored Rasmussen why Congress had adopted a definition that preserved the possibility of future corporate recognition given the tight timeframe for the disbursement of CARES Act funds. Rasmussen tried to dispel Alito’s concerns, and Alito suggested that if this were a free-standing definition, the tribes would have had an “impossible argument for absurdity.” “[W]We keep moving in circles, ”Sotomayor joked as she pushed Rasmussen further on this point.
A separate question addressed the relationship between tribal citizenship, indigenous identity, and federal support – a complex issue in Indian federal law made even more difficult by the coexistence of corporations and tribes in Alaska. Thomas asked Rasmussen about the distinction between Indian tribes and indigenous people. Kavanaugh inquired whether his reasoning was turning the Alaskan Indians into “second class” status by making them ineligible for many services. and Barrett examined whether Alaskan Natives if they “choose not to enroll in a village” are “not entitled to anything from the federal government.” In response, Rasmussen pointed to part of the Alaska-specific context in which both the Alaskan tribes and the federal government contract with regional nonprofits to broadly serve Alaskan tribes and natives, but acknowledged: “I have trouble communicating this. The judges still looked skeptical: In the end, Barrett suggested that the fight wasn’t about “governance” but about “which piece of the pie goes where,” while Roberts voiced his concern that Alaskan Natives were Those who received services from companies would get nothing to do so. “Rasmussen noted that companies actually provided very few of the services that Alaska Natives get.
The judges ultimately seemed unsure where they came across the merits of the textual argument, but their closing remarks indicated that they had a clearer sense of the shares of the case – possibly aided by the self-proclaimed difficulties Rasmussen faced in mediating of the context was faced. However, the final realization that this case is all about money, not governance, was unfortunate. As many of the judges found, Indian federal law is complex, with often unpredictable and unintended consequences. Any decision is likely to unsettle the existing circumstances, especially if the terms in question imply basic concepts such as “tribes” and “recognition by the federal government”. While the argument has not always effectively clarified these stakes, much depends on how far the court’s decision will go, as Sotomayor noted at one point. On the stocks, the parties and Amici on both sides – including leading indigenous organizations and nonprofits with decades of experience advocating for indigenous peoples, including Native Alaskan organizations – argue passionately about what’s best for indigenous people would. This case is more than a cynical fight for cash. He raises an important and sincere difference of opinion on this difficult issue – one on which judges must ultimately analyze the uncertain text of Congress in order to decide.