Alaskan Native Village Corporations Eligible for Tribal Funds Under CARES Act

COVID-19 has created many kinds of uncertainty since it first emerged on the global scene more than a year ago. One of the less expected sources of confusion that has arisen is whether Alaska’s Native regional and village corporations (ANCs) qualify for funding that is earmarked for Native American tribes under the Coronavirus Aid, Relief, and Economic Securities Act (CARES). The Supreme Court of the United States has recently settled this debate, ruling in late June 2021 that ANCs are Indian tribes under the Indian Self-Determination and Education Assistance Act (ISDA) and, thus, eligible for funding under Title V of the CARES Act.

The history of the controversy extends all the way back to 1867, when the United States purchased the 365 million acres of land known as the Territory of Alaska from Russia. By 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA), which extinguished aboriginal land title in Alaska and mandated the creation of twelve private, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations. These corporations are known as ANCs. 43 U. S. C. §1601 et seq. In exchange for the Alaskan Native people’s claims to hunting rights, land, and revocation of all but one of Alaska’s existing reservations, “Congress authorized the transfer of $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations that were to be formed pursuant to” ANCSA. Alaska v. Native Village of Venetie Tribal Government, 522 U. S. 520, 524 (1998); see 43 U.S.C. §1610.

In March 2020, Congress passed the CARES Act as an economic stimulus in response to the COVID-19 pandemic. The legislation allocated $8 billion of monetary relief to “Tribal Governments” or the “recognized governing body of an Indian tribe” as defined by the 1975 Indian Self-Determination and Education Assistance Act (ISDA). See 25 U.S.C. § 5304(e); 42 U.S.C. § 801. The Department of the Treasury, which is vested with the authority to distribute funds under the statute, set aside approximately $500 million of CARES Act funds for ANCs after confirming their eligibility with the Department of Interior, which administers the ISDA. But a number of federally recognized tribes disagreed with the conclusion that ANCs were eligible for the funds, arguing, “only federally recognized tribes are Indian tribes under ISDA, and thus under the CARES Act.” Yellen v. Confederated Tribes of the Chehalis Reservation, 141 S.Ct. 2434, 2441 (2021). Some tribes further argued that ANCs, “do not have a ‘recognized governing body’ for the purposes of the CARES Act and are ineligible to receive its funding for that reason as well.” Id. However, because the parties to the litigation generally agreed that ANCs are eligible for CARES Act funding if they are Indian Tribes for the purpose of ISDA, it was ultimately left to the Court to determine whether ANCs satisfy the latter statute’s definition of “Indian Tribe.”

Whereas the district court sided with the Treasury Department and the ANCs, a three-member panel of the United States Circuit Court of Appeals for the District of Columbia unanimously agreed with the federally recognized tribes and overturned that decision on appeal. In the Supreme Court, Justice Sonia Sotomayor delivered the majority opinion, which was joined by Justices Amy Coney Barrett, Stephen Breyer, Brett Kavanaugh and Chief Justice John Roberts. They reasoned that “recognized” should be given its ordinary meaning, rather than be subjected to a term of art to fit the bill of the ISDA and other government-government relations. In this vein, the Court’s majority concluded, ANCs qualify as “Indian Tribes” if for no other reason than that ANCs were created by the federal government for Alaska’s Native Americans based on their Native status. Sotomayor went on to state that even as a term-of-art, “being a federally recognized tribe is one way to qualify as an Indian tribe under IDSA; it is just not the only way,” Id. at 2444.

Justices Neil Gorsuch, Clarence Thomas, and Elena Kagan, however, were unpersuaded. In a dissenting opinion authored by Justice Gorsuch, they cited statutes enacted both before and after the ISDA to support their assertion that the word “recognized” in context of the statute should be interpreted as a term of art. To the Court's second argument, the dissent rebuts, stating that “it is difficult to see anything ‘implausible’” in the “admittedly ungrammatical reading of the statute.” Id. at 2458. The dissent goes on to assert, when looking at its application to all Indian groups, an “ordinary reader would understand the recognition clause.” Id. at 2460.

The impact of the Court’s decision may prove to be rather narrow, as Justice Sotomayor stated that it “does not open the door to other Indian groups that have not been federally recognized becoming Indian tribes under ISDA.” Id. at 2443. The Court also stressed that the decision does not make ANCs “Indian Tribes” for the purposes of other statutes. So, while the decision resolves ANCs’ status under the ISDA and CARES Act, Alaska and its uniquely situated Indigenous population may raise difficult questions for the Court in the future.