Yukon Kuskokwim Health Corporation
The Yukon Kuskokwim Health Corporation has been providing COVID-19 vaccines to Native youth in the Yukon Kuskokwim Delta of Alaska. Photo: Yukon Kuskokwim Health Corporation
Nation’s highest court sides with Alaska Native corporations in COVID-19 dispute
Friday, June 25, 2021
Indianz.Com

This post will be updated throughout the day.

WASHINGTON, D.C. — Alaska Native corporations will finally be able to receive COVID-19 funds after the nation’s highest court ruled in their favor in one of the most heated Indian law and policy disputes in decades.

By a vote of 6 to 3 on Friday, the U.S. Supreme Court confirmed that the Native corporations, or ANCs, are “Indian tribes” as defined by the Indian Self-Determination and Education Assistance Act (ISDA). As such, they are entitled to funds from the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, Justice Sonia Sotomayor wrote for the majority.

“The court today affirms what the federal government has maintained for almost half a century: ANCs are Indian tribes under ISDA,” Sotomayor wrote at the conclusion of the 28-page ruling in Yellen v. Confederated Tribes of Chehalis Reservation.

“For that reason, they are Indian tribes under the CARES Act and eligible for Title V funding,” she continued, referencing the section of the COVID-19 law at issue in the bitter dispute that began during the Republican Donald Trump administration and continued into Democratic Joe Biden era.

The decision represents a huge victory for the ANCs, which were created by Congress in 1971 as part of a land claim settlement affecting Alaska Natives. Although the corporate entities repeatedly acknowledged that that they are not sovereign tribes, they relied on the long-standing definition in the self-determination law to bolster their case for the CARES Act funds.

ANCSA Regional Association and Alaska Native Village Corporation Association applaud the Supreme Court’s decision to ensure the federal government honors its promises to Alaska Natives and the communities we represent,” the two organizations told Indianz.Com after the ruling on Friday.

“In doing so, the Court affirmed ‘what the federal government has maintained for almost half a century: ANCs are Indian tribes under ISDA,’” the ARA and the ANVCA said, quoting directly from the majority opinion.

20210512193240923_20-543 20-544Letter

The ANCs are now in line for about $450 million in COVID-19 funding, according to the Biden administration. That is the amount left in what is known as the Coronavirus Relief Fund, which was established by Congress over a year ago, just as the pandemic was taking a hold across the nation, and particularly in Indian Country, where American Indians and Alaska Natives have suffered disproportionately.

“Through the creation of Alaska Native regional and village corporations, Congress established a novel approach to federal Indian policy and for nearly 50 years, these unique corporations have served the health, educational, welfare and cultural needs of more than 140,000 Alaska Native shareholders,” the ARA and the ANVCA said on Friday.

“We are pleased to see the Court affirm Alaska Native corporations’ eligibility for CARES Act funds to help our people and communities recover from the devastating effects of COVID-19,” the organizations continued. “Alaska’s economy is only now starting to recover, and these funds are needed to help our communities get back on their feet.”

The decision also marks a big win for Alaska’s powerful, all-Republican delegation to the U.S. Congress whose three members sided with the ANCs while the debate raged during the final year of the Trump era. The GOP governor of Alaska, as well as the Alaska Federation of Natives, the largest such organization in the 49th state, also weighed in.

“ARA and ANVCA would like to extend their deepest thanks to Alaska’s congressional delegation, the state of Alaska, and the Alaska Federation of Natives for their unwavering support of Alaska Native people throughout this litigation,” the two organizations noted.

Sen. Lisa Murkowski (R-Alaska), in particular, has continued to press the Biden administration to understand and respect the role of ANCs in providing critical services and programs to Native people in Alaska. Though her Republican party is in the minority in the 117th Congress, she maintains a prominent position in her new role as vice chair of the Senate Committee on Indian Affairs.

Earlier this month, Murkowski brought up the CARES Act dispute that was pending before the Supreme Court. She told Bryan Newland, a citizen of the Bay Mills Indian Community who is awaiting U.S. Senate confirmation toket serve as Assistant Secretary for Indian Affairs at the Department of the Interior, that he needed to “educate” himself on the unique legal situation in Alaska.

“I just need to know that you are aware of how important it is that ANCs are included in the ISDA definition of Indian tribe, which is referenced in hundreds of other statutes,” Murkowski told Newland, who previously serve as president of his tribe, during his nomination hearing on June 9.

“I’m also needing to reinforce and make sure that you are aware of how important it is that ANCs serve as the recognized governing body of an Indian tribe under ISDA,” Murkowski added.

Murkowski’s reading of ANCs and their inclusion in the self-determination law was in fact embraced by the Supreme Court. The CARES Act is just one of many federal statutes that reference the definition in ISDA, which first became law in 1975, only four years after Congress passed the Alaska Native Claims Settlement Act.

In the majority opinion, Justice Sotomayor noted that that “because ANCs are Indian tribes within the meaning of the CARES Act, an ANC’s board of directors is a ‘recognized governing body’ eligible to receive funding under Title V of the Act.”

But while Alaska’s interests prevailed on the legal front in the case, they have since fared less well in the political realm. The American Rescue Plan Act, which President Biden signed into law on March 11 to help the nation recover from the devastating impacts of COVID-19, does not reference ISDA in connection with a $20 billion fund for tribes.

Instead, the new law, which was shepherded through Congress by the Democratic majority, makes clear that tribal governments — and only tribal governments — can receive shares of what is known as the Fiscal Recovery Fund. The American Rescue Plan Act is tied to the Federally Recognized Indian Tribe List Act of 1994, which applies only to federally-recognized Indian nations.

Harvard Ash Center: Navigating the American Rescue Plan Act: A Series for Tribal Nations, Session 3

As of Thursday, the Department of the Treasury had distributed $12 billion from the Fiscal Recovery Fund to tribal nations, a senior official said during the mid-year conference of the National Congress of American Indians. The first round of payments was based on the citizenship numbers for each tribe.

A second round of payments, based on the number of employees for each Indian nation, is expected to go out shortly, the official said. The funds are going to all 574 federally recognized tribes, including the 220-plus based in Alaska, six of which had been a part of the litigation in hopes of preventing ANCs from receiving CARES Act shares.

As for the CARES Act, Congress set aside $8 billion for “Indian tribes,” which the Supreme Court has now confirmed includes ANCs. The vast majority of the Coronavirus Relief Fund went to the 574 recognized tribes under a formula developed during the Trump administration.

The remaining funds, about $534 million, were being held back by Treasury until the resolution of the Supreme Court case. But in the meantime, a different CARES Act legal controversy prompted the Biden administration to revisit and readjust the Trump-era methodology, this time to distribute more funds to certain tribes.

The Department of Justice on May 12 informed the Supreme Court that fewer funds are available for the ANCs as a result of the new development. The letter arrived about a month after oral augments in Yellen on April 19.

“ANCs would receive approximately $450 million under the revised methodology,” the acting Solicitor General of the United States told the justices.

Still, the dispute was never about money, according to President Jonathan Nez of the Navajo Nation. His tribe, which at one point had the highest per capita rate of COVID-19 cases in the U.S., was one of the plaintiffs in the CARES Act case.

“We have a strong coalition of tribes that are disappointed in the Supreme Court’s ruling,” Nez said in a news release on Friday. “This case was never about the funds. Instead, it was about upholding tribal sovereignty and the status of federally-recognized tribes. Many tribal nations have had to fight hard over the course of many years to gain federal recognition to be eligible for programs and services that ultimately benefit our people across Indian Country.”

“The ruling undermines federally-recognized tribes and will have consequences far beyond the allocation of CARES Act dollars, but we as federally-recognized tribes will continue to stand strong and advocate for our tribal nations,” Nez continued. “I recommend that Congress clarify that Alaska Native Corporations are not federally recognized tribes under the Indian Self-Determination and Education Assistance Act to avoid this issue in the future.”

Navajo leaders also pointed out that ANCs aren’t entitled to share in the $20 billion from the American Rescue Plan Act.

“We have to continue fighting for our people on all fronts and we should not let today’s ruling discourage us from responding to the COVID-19 pandemic,” said Vice President Myron Lizer. “While the ruling precludes the Nation from receiving additional funds under the CARES Act, we have to remain focused on the opportunities the American Rescue Plan Act presents to help our communities and our people recover from the pandemic and prepare us for any possible future pandemics. We have to focus on planning for the long-term for our future generations.”

Indianz.Com Video: U.S. Supreme Court – Yellen v. Confederated Tribes of the Chehalis Reservation – April 19, 2021

The majority opinion in Yellen v. Confederated Tribes of Chehalis Reservation was joined by a broad coalition on the Supreme Court. Joining Justice Sotomayor, who was nominated to the bench by former Democratic president Barack Obama, in the majority opinion were Chief Justice John G. Roberts Jr., a Republican pick; Justice Stephen G. Breyer, a Democratic choice; and two Trump-era figures: Justice Brett Kavanaugh and Justice Amy Coney Barrett, the newest member.

Justice Samuel Alito, who was nominated by Republican former president George W. Bush, also joined most parts of the court’s opinion, bringing the vote in favor of the ANCs to six.

On the other side were three members. Justice Neil Gorsuch, whose record and understanding of Indian law is unprecedented in Supreme Court history, authored a dissent that accused the majority of ignoring the intent of the CARES Act, which references tribal governments alongside their state and local counterparts.

Dissent (Gorsuch): Yellen v. Confederated Tribes of Chehalis Reservation [PDF]
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“In the provision at issue before us, Congress appropriated money ‘for making payments to States, Tribal governments, and units of local government,’” Gorsuch wrote, quoting from the CARES Act. “Including tribal governments side-by-side with states and local governments reinforces the conclusion that Congress was speaking of government entities capable of having a government-to-government relationship with the United States.”

“ANCs, like most corporations, have a board of directors, and a corporate board may well be the governing body of an enterprise,” Gorsuch added in the 15-page dissent. “But they do not govern any people or direct any government.”

Joining Gorsuch in the dissent were Justice Clarence Thomas, a Republican nominee, and Justice Elena Kagan, another Obama pick. Even as they poked fun at the “implausibility” of a food-based analogy in the court’s opinion, they warned of opening the door for the “recognition clause” of the self-determination law to be applied to entities beyond the ANCs.

“If receiving any federal money really is enough to satisfy the recognition clause, many other Indian groups might now suddenly qualify as tribes under the CARES Act, ISDA, and other federal statutes,” Gorsuch argued.

“A 2012 GAO study, for example, identified approximately 400 nonfederally recognized tribes in the lower 48 States, of which 26 had recently received direct funding from federal programs,” he said in reference to a report from the Government Accountability Office.

The Yellen litigation, named for Secretary of the Treasury Janet Yellen, consisted of three separate lawsuits that were filed against her predecessor in the position, Steven Mnuchin. The cases were consolidated in federal court.

The plaintiffs in Confederated Tribes of the Chehalis Reservation v. Yellen are:

  • Confederated Tribes of the Chehalis Reservation (Washington)
  • Tulalip Tribes (Washington)
  • Houlton Band of Maliseet Indians (Maine)
  • Akiak Native Community (Alaska)
  • Asa’carsarmiut Tribe (Alaska) 
  • Aleut Community of St. Paul Island (Alaska)
  • Navajo Nation (Arizona, New Mexico, Utah)
  • Quinault Nation (Washington)
  • Pueblo of Picuris (New Mexico)
  • Elk Valley Rancheria (California)
  • San Carlos Apache Tribe (Arizona)
The plaintiffs in Cheyenne River Sioux Tribe v. Yellen are:

  • Cheyenne River Sioux Tribe (South Dakota)
  • Rosebud Sioux Tribe (South Dakota)
  • Oglala Sioux Tribe (South Dakota)
  • Nondalton Tribal Council (Alaska)
  • Native Village of Venetie (Alaska)
  • Arctic Village Council (Alaska)
The third case is Ute Indian Tribe of the Uintah and Ouray Indian Reservation v. Yellen . The sole plaintiff is:

  • Ute Indian Tribe (Utah)

After the litigation commenced, a number of Alaska Native corporate interests intervened on the side of the federal government. They included the Alaska Native Village Corporation Association; the Association of ANCSA Regional Corporations Presidents/CEOs; Ahtna, Inc.; Akiachak, Ltd.; Calista Corporation; Kwethluk, Inc.; Napaskiak, Inc.; Sea Lion Corporation; and St. Mary’s Native Corporation.

indianz · Tribal Supreme Court Project Update
Indianz.Com Audio: Tribal Supreme Court Project Update – June 24. 2021

Last summer, the federal judge assigned to the case ruled that ANCs could receive COVID-19 funds based on the definition of “Indian tribe” in self-determination law. But he also imposed an injunction that prevented the Trump administration from distributing the money pending further appeals.

The tribal plaintiffs immediately took the case the D.C. Circuit Court of Appeals to hear the matter. Last September, a three-judge panel ruled in their favor but the dispute wasn’t over yet.

The federal government and the ANC interests then asked the Supreme Court to take the case. Their petitions were granted on January 8, just 12 days before Joe Biden became president of the United States.

The ANC petition is titled Alaska Native Village Corporation Association, v. Confederated Tribes of the Chehalis Reservation. It was heard along with Yellen on April 19 and the potential outcome was discussed on the final day of NCAI’s mid-year session on Thursday.

“The relationship between tribal nations and the federal government was born out of conflict and it has fallen upon every generation to carry forward our inherent tribal sovereignty to serve our tribal citizens,” NCAI President Fawn Sharp said after the ruling. “We must continue to all work together with the United States to actively support strong Nation-to-Nation relationships.”

“NCAI looks forward to continuing our work representing tribal governments and working with Alaska Native Corporations, tribal partners, and other allies to ensure that the United States meets its treaty obligations and its trust responsibilities to moving forward,” said Sharp, who also serves as vice president of the Quinault Nation, one of the tribal plaintiffs.

U.S. Supreme Court Decision: Yellen v. Confederated Tribes of Chehalis Reservation
Syllabus | Opinion [Sotomayor] | Dissent [Gorsuch] | Full Document

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