Are Alaska Native corporations Indian tribes? A multimillion-dollar question
on Apr 16, 2021 at 8:18 pm
Are Alaska Native corporations — special corporations that Congress created in 1971 when it resolved Native claims in Alaska — “Indian tribe[s]” under the Indian Self-Determination and Education Assistance Act? On Monday, the Supreme Court will hear argument on that question in Yellen v. Confederated Tribes of the Chehalis Reservation. Immediately at stake in the answer is billions of dollars in federal CARES Act funding. But the outcome could also have longer-term consequences for how, and from whom, Alaskan Natives receive essential services.
First, some background. Just as, in McGirt v. Oklahoma last term, the court confronted the complex past of Oklahoma’s Native nations, Chehalis turns on the unique legal history of Alaskan Natives. Though Alaska became part of the United States in 1867, the federal government only fitfully devoted attention to the status of the new territory’s Indigenous peoples. Consequently, when Alaska became a state in 1959 and when, soon thereafter, oil was discovered in Prudhoe Bay, federal law left open many questions — especially land ownership. Alaskan Natives pressed their enduring ownership of much of the new state; in response, in 1971, Congress enacted the Alaska Native Claims Settlement Act, which extinguished all Alaskan Native aboriginal land claims in return for nearly $1 billion in compensation and 38 million acres of fee title to land.
Most importantly for Chehalis, ANCSA departed from long-standing models of federal Indian law that governed the lower 48 states. ANCSA created two sets of for-profit Alaska Native corporations: two hundred village corporations and thirteen larger regional corporations. Based on residence or origin, Alaskan Natives became shareholders in both a village and regional corporation; both sets of corporations received land and money under ANCSA. Today, the regional ANCs in particular are among the most important companies in Alaska, with billions in revenue from energy development, tourism and government contracting.
ANCSA left unsettled, however, the status of Alaskan Native governments. Federal law had long spoken of federal recognition of “Indian tribes,” a process formalized by the Bureau of Indian Affairs in 1978. In 1993, after long uncertainty, the bureau determined that Alaskan Native villages remained federally recognized Indian tribes with inherent sovereignty under federal law. The next year, Congress passed the List Act, which requires the bureau to publish an annual, official list of “all federally recognized tribes which are eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” Today, 574 federally recognized tribes are listed, including 229 tribes in Alaska.
Because of this history, there are three kinds of Alaskan Native entities today: Alaska Native village corporations, Alaska Native regional corporations, and federally recognized tribes, often called Alaska Native villages. The first two are for-profit corporations that also provide some services to Alaskan Natives; the third are sovereign governments.
The meaning of these distinctions is at the core of the current litigation over the 2020 CARES Act. The act provided $150 billion in emergency relief during the coronavirus pandemic to states, territories and local governments, including, after intense negotiation, $8 billion earmarked for tribes. The act defined eligible “tribes” by reference to the 1975 Indian Self-Determination and Education Assistance Act, a pivotal piece of legislation that, by allowing tribes to contract with the federal government to provide services in place of federal agencies, heralded the modern era of federal embrace of Native self-determination. The ISDA defines tribes as follows:
“Indian tribe” means any 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, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
The Treasury Department concluded that this language encompasses the Alaskan Native Corporations, making them eligible for CARES Act funds. A group of federally recognized tribes from various states, including Alaska, disagreed, and sued. A federal district court in D.C. sided with the Treasury Department, but the U.S. Court of Appeals for the District of Columbia Circuit reversed, concluding that federal recognition is a term of art that applies only to tribes that appear on the bureau’s annual list, which excludes Alaska Native corporations. The D.C. Circuit concluded that the explicit inclusion of the corporations in the ISDA’s definition reflected uncertainty in 1975 over whether they would later become federally recognized tribes — which, to date, they haven’t. The Treasury Department and an association of Alaska Native village corporations appealed that ruling to the Supreme Court.
Unsurprisingly, the bulk of the briefing before the Supreme Court focuses on statutory interpretation. In their briefs, the Treasury Department and the Alaska Native corporations both argue against the application of the “series qualifier canon” — that is, interpreting the ISDA’s requirement of federal recognition to apply to all the listed entities, including the corporations. Such a reading, they argue, would render superfluous the explicit inclusion of the corporations within the ISDA’s definition, and is at odds with the legislative history. They also challenge the D.C. Circuit’s historical framing, noting that the uncertainty at the ISDA’s enactment surrounded the status of Alaskan Native governments, not Alaska Native corporations — uncertainty resolved in 1993 when the bureau acknowledged Alaska Native villages as federally recognized tribes. They further claim that subsequent statutes, federal agencies and appeals court decisions have all already recognized the corporations as entities eligible for federal contracting under the ISDA.
The Confederated Tribes of the Chehalis Reservation, along with other tribes that are challenging Treasury’s interpretation, read the ISDA provision differently. They insist that the provision’s plain text, especially the word “including,” mandates that the requirement of recognition apply to all enumerated entities. This language, they argue, renders the inclusion of Alaska Native corporations by name redundant rather than superfluous: that is, the language explicitly preserves the possibility that Congress could, at some future date, decide to recognize the corporations, even though it has not yet done so. They also suggest that there is no “well-settled” agency or circuit construction of the ISDA language, observing both the confusion and paucity of existing materials on the question.
In a separate brief, the Ute Indian Tribe of the Uintah and Ouray Reservation offers an additional argument against the inclusion of the corporations in CARES Act eligibility: Title V of the act limited funds to “Tribal governments,” which it defined as the “recognized governing body of an Indian tribe” before referring to the ISDA definition. This definition, the Ute Tribe argues, separately renders the corporations ineligible, since they are not tribal governments. In their briefs, both the Treasury Department and the corporations counter that the CARES Act defined “recognized governing body” by referencing the ISDA definition; it did not establish a new, free-standing test for a tribal entity.
The parties also address the broader stakes of the controversy. The Alaska Native corporations, aided by amici including the state of Alaska and its congressional delegation, argue that they provide Alaskan Natives critical services like health care and housing through their nonprofit arms, especially in urban areas located far from federally recognized tribes. Alaska’s brief pointedly includes a picture of the COVID-19 vaccine being delivered by dogsled to underscore the key role that the corporations have played during the pandemic. In response, the tribes — joined by amici including a number of lower 48 states — argue that most of these examples are drawn from Anchorage, where Congress has already provided for Native health care through special statute. They further argue that Alaskan Natives’ health care needs have been, and will continue to be, met by regional tribal nonprofits. They also note that “[h]istory is littered with claims, often advanced by the United States and at great cost to tribal citizens, that tribes would be best off if others exercised governmental authority on their behalf.”
Chehalis underscores one of the many ironies in the history of Indigenous peoples and federal Indian law. When drafting ANCSA and creating Alaska Native corporations, Congress explicitly sought to avoid recreating the complexities that the court’s Indian law jurisprudence had created in the lower 48. Yet, as has so often happened with “solutions” in this area of law, Congress’ experimentation has spawned more uncertainty and confusion, not less. The consequence, as this current litigation underscores, is that Native peoples are forced to compete in a zero-sum contest over hard-won resources extracted from an often-reluctant federal government. Whatever the case’s outcome, it reiterates the enormous stakes for Indigenous peoples of decisions made in distant institutions by non-Native politicians who often imperfectly grasp their policies’ lasting consequences.