16 Apr 2021
April 16, 2021
at 8:18 p.m.
Are Alaska Native Societies special societies created by Congress in 1971 when it resolved Native Alaskan claims?[s]Under the Indian Self-Determination and Educational Assistance Act? On Monday, the Supreme Court will hear arguments on this issue in Yellen v. Confederate tribes of the Chehalis reserve. Immediately at stake in the response are billions of dollars in federal funding for the CARES Act. But the result could also have longer-term consequences for how and from whom Alaskan natives receive essential services.
First of all, a little background. Just like, in McGirt v. Oklahoma last term, the court grappled with the complex past of the indigenous nations of Oklahoma, Chehalis revolves around the unique legal history of the natives of Alaska. Although Alaska became part of the United States in 1867, the federal government paid only intermittent attention to the status of the indigenous peoples of the new territory. Therefore, when Alaska became a state in 1959 and soon after oil was discovered in Prudhoe Bay, federal law left many questions unresolved, particularly land ownership. The natives of Alaska put pressure on their lasting ownership of much of the new state; In response, in 1971, Congress enacted the Alaska Native Claims Settlement Act, which extinguished all land claims by Alaska Natives in exchange for nearly $ 1 billion in compensation and $ 38 million. acres of land title.
Mainly for Chehalis, ANSAA deviated from long-standing models of Indian federal law that governed the lower 48 states. ANCSA has created two sets of for-profit Alaska Native societies: two hundred village societies and thirteen larger regional societies. Depending on their residence or origin, the natives of Alaska became shareholders of both a village and a regional corporation; both groups of companies received land and money under ANSAA. Today, regional NCAs in particular are among Alaska’s largest companies, with billions in revenue from energy development, tourism, and government procurement.
ANSAA left in suspense, however, the status of Alaska Natives. Governments. Federal law had long spoken of federal recognition of “Indian tribes,” a process formalized by the Office of Indian Affairs in 1978. In 1993, after long uncertainty, the office determined that Alaska’s Native villages remained Indian tribes recognized by the federal government with inherent sovereignty under federal control. law. The following year, Congress passed the List Act, which requires the office to publish an official annual list of “all federally recognized tribes that are eligible for special programs and services provided by the United States to Indians in because of their Indian status. “Today, 574 federally recognized tribes are listed, including 229 tribes in Alaska.
Because of this history, there are three types of Native Alaskan Entities today: Native Alaska Village Societies, Alaska Native Regional Societies, and Federally Recognized Tribes, often referred to as Native Alaskan villages. The first two are for-profit companies that also provide certain services to the natives of Alaska; the third are sovereign governments.
The meaning of these distinctions is at the heart of the ongoing litigation over the CARES 2020 law. The law provided $ 150 billion in emergency relief during the coronavirus pandemic to states, territories and local governments, including, after intense negotiations, 8 billion dollars reserved for the tribes. The law defined eligible “tribes” with reference to India’s Self-Determination and Educational Aid Act 1975, a key piece of legislation which, by allowing tribes to enter into contracts with the federal government to provide services in place of federal agencies, heralded the modern era. federal support for Aboriginal self-determination. ISDA defines tribes as follows:
“Indian tribe” means any tribe, band, nation or other organized group or Indian community, including any Native Alaskan village or regional or village society as defined or established in accordance with the Indian Claims Resolution Act of the United States of America. Alaska, which is recognized as eligible for special programs and services provided by the United States to Indians because of their Indian status.
The Treasury Department has concluded that this language encompasses Native Alaskan societies, making them eligible for CARES Act funds. A group of federally recognized tribes from various states, including Alaska, disagreed and sued. A Washington Federal District court sided with the Treasury Department, but the District of Columbia Circuit Court of Appeals for the United States backed down, concluding that federal recognition is a technical term that applies only to tribes on the bureau’s annual list, which excludes Alaska Native Societies. The DC Circuit concluded that the explicit inclusion of corporations in the ISDA definition reflected uncertainty in 1975 as to whether they would later become federally recognized tribes – which, to date, has not is not the case. The Treasury Department and an association of Native Alaskan Village Societies appealed the ruling to the Supreme Court.
Unsurprisingly, most of the presentation to the Supreme Court focuses on statutory interpretation. In their submissions, the Treasury Department and Alaska Native Societies both oppose the application of the “serial qualifying canon” – that is, the interpretation of the federal recognition requirement. of ISDA to apply to all listed entities, including companies. Such a reading, they argue, would make the explicit inclusion of corporations in the ISDA definition superfluous, and contradict legislative history. They also take issue with the historical framing of the DC Circuit, noting that the uncertainty surrounding the enactment of the ISDA surrounded the status of Alaskan Native. Governments, not Alaska Native Societies – the uncertainty was resolved in 1993 when the office recognized Alaska Native villages as federally recognized tribes. They further assert that subsequent laws, federal agencies, and appellate court decisions all have already recognized companies as eligible entities for federal procurement under ISDA.
The Confederate tribes of the Chehalis reservation, as well as other tribes who dispute the interpretation of the Treasury, read the ISDA provision differently. They insist that the plain text of the provision, in particular the word “including”, requires that the requirement of recognition apply to all enumerated entities. This language, they argue, makes the inclusion of Native Alaskan societies by name redundant rather than superfluous: that is, the wording explicitly preserves the possibility that Congress may, at a future date, decide to recognize the companies, even if it has not yet done so. They also suggest that there is no “well-established” agency or circuit of the ISDA language, observing both the confusion and the paucity of existing documentation on the issue.
In a separate brief, the Ute Indian tribe of the Uintah and Ouray reserve offers an additional argument against the inclusion of corporations in CARES eligibility: Title V of the law limits funds to “governments”. tribals ”, which she defines as“ the governing body of an Indian tribe ”before referring to the ISDA definition. This definition, argues the Ute tribe, separately renders societies ineligible, since they are not tribal governments. In their briefs, the Treasury Department and the companies retort that the CARES law defined “recognized governing body” by referring to the definition of ISDA; it did not establish a new stand-alone criterion for a tribal entity.
The parties also address the broader issues of the controversy. Native Alaskan societies, aided by amici, including the State of Alaska and its delegation to Congress, say they are providing Alaskan natives with essential services such as health care and housing through through their non-profit branches, especially in urban areas far from federally recognized tribes. Alaska’s brief ostensibly includes an image of the COVID-19 vaccine administered by dogsled to highlight the key role businesses played during the pandemic. In response, the tribes – joined by amici, including a number from 48 lower states – argue that most of these examples are taken from Anchorage, where Congress has previously provided health care to natives through of a special law. They further contend that the health care needs of Alaska Natives have been and will continue to be met by regional tribal nonprofit organizations. They also note that “[h]History is littered with claims, often made by the United States and at great cost to tribal citizens, that tribes would be better off if others wielded governmental authority on their behalf.
Chehalis highlights one of the many ironies in the history of indigenous peoples and federal Indian law. In drafting the ANCSA and the founding of Alaska Native Societies, Congress explicitly sought to to avoid recreating the complexities that Indian court law jurisprudence had created in the lower 48s. Yet, as has so often happened with “solutions” in this area of law, the experimentation in Congress created more uncertainty and confusion, not less. The consequence, as this ongoing litigation points out, is that Indigenous peoples are forced into a zero-sum contest for hard-earned resources squeezed out of an often reluctant federal government. Whatever the outcome of the case, it reminds us of the enormous stakes for Indigenous peoples from decisions made in remote institutions by non-Indigenous politicians who often imperfectly grasp the lasting consequences of their policies.