Confederated Tribes v. Steven Mnuchin ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2020 Decided September 25, 2020
No. 20-5204
CONFEDERATED TRIBES OF THE CHEHALIS RESERVATION, ET
AL.,
APPELLEES
UTE TRIBE OF THE UINTAH AND OURAY INDIAN RESERVATION,
APPELLANT
v.
STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF U.S. DEPARTMENT OF THE TREASURY, ET AL.,
APPELLEES
Consolidated with 20-5205, 20-5209
Appeals from the United States District Court
for the District of Columbia
(No. 1:20-cv-01002)
(No. 1:20-cv-01059)
(No. 1:20-cv-01070)
Riyaz Kanji argued the cause for Confederated Tribes
appellants. With him on the briefs were Cory Albright, Lisa
Koop Gunn, Lori Bruner, Eric Dahlstrom, April E. Olson,
2
Richard W. Hughes, Reed C. Bienvenu, Bradley G. Bledsoe
Downes, and Alexander B. Ritchie.
Jeffrey S. Rasmussen argued the cause for appellants Ute
Tribe of the Uintah and Ouray Indian Reservation, et al. With
him on the briefs were Frances C. Bassett, Rollie E. Wilson,
Nicole E. Ducheneaux, Natalie A. Landreth, Erin Dougherty
Lynch, Matthew N. Newman, Wesley James Furlong, Megan R.
Condon, and Jeremy J. Patterson.
Kaighn Smith, Jr. was on the brief for amici curiae
National Congress of American Indians, et al. in support of
appellants.
Adam C. Jed, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Ethan P. Davis, Acting Assistant Attorney General, and
Michael S. Raab and Daniel Tenny, Attorneys.
Paul D. Clement argued the cause for intervenor-appellees
Alaska Native Village Corporation Association, Inc., et al.
With him on the brief were Erin E. Murphy, Ragan Naresh,
and Matthew D. Rowen. Jonathan W. Katchen and Daniel W.
Wolff entered appearances.
Christine V. Williams was on the brief for amici curiae
U.S. Senators Lisa Murkowski, Dan Sullivan, and U.S.
Congressman Don Young in support of appellees.
Allon Kedem, Ethan G. Shenkman, and Janine M. Lopez
were on the brief for amicus curiae Cook Inlet Region, Inc. in
support of appellee.
James H. Lister was on the brief for amicus curiae Alaska
Federation of Natives in support of appellees.
3
Before: HENDERSON, MILLETT, and KATSAS, Circuit
Judges.
Opinion of the Court filed by Circuit Judge KATSAS.
Concurring Opinion filed by Circuit Judge HENDERSON.
KATSAS, Circuit Judge: Title V of the Coronavirus Aid,
Relief, and Economic Security Act (CARES Act) makes
certain funds available to the recognized governing bodies of
any “Indian Tribe” as that term is defined in the Indian Self-
Determination and Education Assistance Act (ISDA). Alaska
Native Corporations are state-chartered corporations
established by Congress to receive land and money provided to
Alaska Natives in settlement of aboriginal land claims. We
consider whether these corporations qualify as Indian Tribes
under the CARES Act and ISDA.
I
A
Since the Alaska Purchase in 1867, the United States has
taken shifting positions on the political status of Alaska’s
indigenous populations. Initially, the government thought that
Alaska Natives had no distinct sovereignty. See, e.g., In re Sah
Quah, 31 F. 327, 329 (D. Alaska 1886) (“The United States has
at no time recognized any tribal independence or relations
among these Indians . . . .”). Over time, it came to view Alaska
Natives as “being under the guardianship and protection of the
Federal Government, at least to such an extent as to bring them
within the spirit, if not within the exact letter, of the laws
relative to American Indians.” Leasing of Lands Within
Reservations Created for the Benefit of the Natives of Alaska,
49 Pub. Lands Dec. 592, 595 (1923). Those laws recognize
4
and implement the unique trust relationship between the federal
government and Indian tribes as dependent sovereigns, and the
distinct obligations that relationship imposes. See, e.g., United
States v. Jicarilla Apache Nation, 564 U.S. 162, 175–76
(2011). But Alaska Natives differed from other Indians in their
“peculiar nontribal organization” in small, isolated villages.
Op. Sol. of Interior, M-36975, 1993 WL 13801710, at *18 (Jan.
11, 1993) (“Sansonetti Op.”) (quoting H.R. Rep. 74-2244, at
1–5 (1936)).
For over a century, the federal government had no settled
policy on recognition of Alaska Native groups as Indian tribes.
Instead, it dealt with that question “in a tentative and reactive
way,” with “decisions on issues concerning the relationship
with Natives [being] postponed, rather than addressed.”
Sansonetti Op. at *2. Because of the “remote location, large
size and harsh climate of Alaska,” there was no pressing need
“to confront questions concerning the relationship between the
Native peoples of Alaska and the United States.” Id. But in
1958, the Alaska Statehood Act provided for a large transfer of
land from the federal government to the soon-to-be State. Pub.
L. No. 85-508, § 6, 72 Stat. 339, 340–43. And in 1968, oil was
discovered on Alaska’s North Slope, requiring construction of
a pipeline system running across the entire State. See Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 241–42
& n.2 (1975). These developments forced the federal
government to confront at least the question of Native claims
to aboriginal lands. See Sansonetti Op. at *43.
In 1971, Congress enacted the Alaska Native Claims
Settlement Act (ANCSA), a “comprehensive statute designed
to settle all land claims by Alaska Natives.” Alaska v. Native
Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 523 (1998). Rather
than set aside land for reservations, as Congress often had done
in the lower 48 states, it “adopted an experimental model
5
initially calculated to speed assimilation of Alaska Natives into
corporate America.” 1 Cohen’s Handbook of Federal Indian
Law § 4.07(3)(b)(ii)(C) (2019). Among other things, ANCSA
“completely extinguished all aboriginal claims to Alaska land”
and abolished all but one Native reservation in Alaska. Native
Vill. of Venetie, 522 U.S. at 524. “In return, 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 the statute.” Id.
As relevant here, ANCSA authorized the creation of two
types of corporations to receive this money and land: Alaska
Native Regional Corporations and Alaska Native Village
Corporations, which we collectively refer to as ANCs. First,
the statute divided Alaska into twelve geographic areas, each
sharing a common heritage and interests, and it created a
regional corporation for each area. 43 U.S.C. § 1606(a).
Second, ANCSA required the Alaska Native residents of each
“Native village”—defined as any community of at least
twenty-five Alaska Natives, id. § 1602(c)—to organize as a
village corporation to receive benefits under the statute. Id.
§ 1607(a). Village corporations “hold, invest, manage and/or
distribute lands, property, funds, and other rights and assets for
and on behalf of a Native village.” Id. § 1602(j).
Like other corporations, ANCs have boards of directors
and shareholders. 43 U.S.C. §§ 1606(f)–(h), 1607(c). The
initial ANC shareholders were exclusively Alaska Natives;
each Native received one hundred shares of the regional and
village corporation operating where he or she lived. Id.
§§ 1606(g)(1)(A), 1607(c). ANCSA initially prohibited the
transfer of stock to non-Natives for twenty years, 43 U.S.C.
§ 1606(h)(1) (1971), but Congress later made the prohibition
continue unless and until an ANC chose to end it, 43 U.S.C.
6
§ 1629c(a). ANCs may freely sell land to non-Natives and
need not use the land “for Indian purposes.” Native Vill. of
Venetie, 522 U.S. at 533. Regional ANCs may provide “health,
education, or welfare” benefits to Native shareholders and to
shareholders’ family members who are Natives or Native
descendants, without regard to share ownership. 43 U.S.C.
§ 1606(r).
B
In 1975, Congress enacted ISDA to “help Indian tribes
assume responsibility for aid programs that benefit their
members.” Menominee Indian Tribe of Wis. v. United States,
136 S. Ct. 750, 753 (2016). ISDA authorizes the federal
government to contract with Indian tribes to provide various
services to tribal members. Salazar v. Ramah Navajo Chapter,
567 U.S. 182, 185 (2012). Under these “self-determination”
contracts, the government provides money to an individual
tribe, which agrees to use it to provide services to tribal
members. See Menominee Indian Tribe, 136 S. Ct. at 753.
Specifically, ISDA directs the Secretary of the Interior or
the Secretary of Health and Human Services, “upon the request
of any Indian tribe,” to contract with an appropriate “tribal
organization” to provide the requested services. 25 U.S.C.
§ 5321(a)(1). ISDA defines an “Indian tribe” as
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 (85 Stat. 688), which is recognized as
eligible for the special programs and services
provided by the United States to Indians because of
their status as Indians.
7
Id. § 5304(e). ISDA further defines a “tribal organization” to
include “the recognized governing body of any Indian tribe.”
Id. § 5304(l).
C
On March 27, 2020, Congress passed the CARES Act to
provide various forms of relief from the ongoing coronavirus
pandemic. Title V of the CARES Act appropriated $150
billion “for making payments to States, Tribal governments,
and units of local government.” 42 U.S.C. § 801(a)(1). These
payments cover “necessary expenditures incurred due to the
public health emergency.” Id. § 801(d)(1). Congress directed
the payments to be made within 30 days. Id. § 801(b)(1).
Of these funds, the CARES Act reserved $8 billion “for
making payments to Tribal governments.” 42 U.S.C.
§ 801(a)(2)(B). The CARES Act defines a “Tribal
government” as “the recognized governing body of an Indian
Tribe.” Id. § 801(g)(5). It further defines “Indian Tribe” as
bearing “the meaning given that term” in ISDA. Id.
§ 801(g)(1).
II
On April 13, 2020, the Department of the Treasury
published a form seeking tribal data to help apportion Title V
funds. The Department requested each tribe’s name,
population, land base, employees, and expenditures. The form
suggested that ANCs would receive funding. For example, in
seeking population information, the form requested the total
number of tribal citizens, members, or shareholders. On April
22, the Department confirmed its conclusion that ANCs were
eligible to receive Title V funds.
8
Between April 17 and 23, three separate groups of Indian
tribes filed lawsuits challenging that decision. Collectively, the
plaintiffs encompass six federally recognized tribes in Alaska
and twelve federally recognized tribes in the lower 48 states.
The tribes argued that ANCs are not “Indian Tribes” within the
meaning of the CARES Act or ISDA because they do not
satisfy the final requirement of the ISDA definition—i.e.,
because they are not “recognized as eligible for the special
programs and services provided by the United States to Indians
because of their status as Indians.” 23 U.S.C. § 5304(e). The
government agreed that ANCs have not been so recognized,
and it further argued that ANCs could not be so recognized.
But, the government reasoned, Congress expressly included
ANCs within the ISDA definition, and we must give effect to
that decision.
The district court consolidated the three cases and granted
a preliminary injunction prohibiting the distribution of any
Title V funds to ANCs. In finding that the tribes were likely to
succeed on the merits, the court reasoned that any “Indian
tribe” under ISDA must be “recognized” as such and that
Alaska Native corporations, unlike Alaska Native villages,
have not been so recognized. As a result of the preliminary
injunction, the government has withheld distribution of more
than $162 million in Title V funds that it otherwise would have
provided to ANCs. Several ANCs and ANC associations then
intervened as defendants.
The district court ultimately granted summary judgment to
the defendants. After further consideration, the court agreed
with the government: ANCs must qualify as Indian tribes to
give effect to their express inclusion in the ISDA definition,
even though no ANC has been recognized as an Indian tribe.
9
To permit orderly review, the district court granted the
tribes’ motion for an injunction pending appeal, subject to the
tribes seeking expedition in this Court. The injunction
prohibited the distribution of Title V funds to ANCs until the
earlier of September 15 or a merits decision by this Court. We
granted expedition, heard oral argument, and extended the
injunction pending our decision.
III
The government first contends that its decision to provide
CARES Act funds to ANCs is not judicially reviewable. The
Administrative Procedure Act provides a cause of action to
persons “adversely affected or aggrieved by agency action,” 5
U.S.C. § 702, but withdraws the action to the extent that
“statutes preclude judicial review,” id. § 701(a)(1). “Whether
and to what extent a particular statute precludes judicial review
is determined not only from its express language, but also from
the structure of the statutory scheme, its objectives, its
legislative history, and the nature of the administrative action
involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345
(1984). Any preclusion must be “fairly discernible in the
statutory scheme,” id. at 351, and must appear “with sufficient
clarity to overcome the strong presumption in favor of judicial
review,” Thryv, Inc. v. Click-to-Call Techs., LP, 140 S. Ct.
1367, 1373 (2020) (quotation marks omitted).
Nothing in the CARES Act expressly precludes review of
spending decisions under Title V. Nonetheless, the
government argues that the statute precludes judicial review by
implication. It highlights three structural or contextual
considerations: the short deadline for disbursing funds, the
urgency of providing relief funds quickly, and the lack of any
requirement for advance notice of funding decisions.
10
We are unpersuaded. To begin, the government cites no
case in which short statutory deadlines have been held to
preclude judicial review by implication. To the contrary, in
Dunlop v. Bachowski, 421 U.S. 560 (1975), the Supreme Court
held that judicial review was available despite a 60-day
deadline for the relevant administrative action. Id. at 563 n.2,
567. Likewise, in Texas Municipal Power Agency v. EPA, 89
F.3d 858 (D.C. Cir. 1996), we rejected a claim that “short
statutory deadlines,” combined with the need “to compile
enormous amounts of data and allocate allowances to 2,200
utilities” within the deadline, made the claim at issue
unreviewable. See id. at 864–65. The government cites Morris
v. Gressette, 432 U.S. 491 (1977), where the plaintiffs sought
to challenge an administrative failure to object to a state voting
measure under section 5 of the Voting Rights Act. But the Act
provided other means to obtain judicial review of the
underlying legal question, see id. at 504–05, and the case
involved the same kind of enforcement discretion later held to
be generally unreviewable in Heckler v. Chaney, 470 U.S. 821
(1985). The government also cites Dalton v. Specter, 511 U.S.
462 (1994), but that case turned on the fact that presidential
action is not subject to APA review. See id. at 471–76. As for
urgency, the government frames its argument as only a slight
variation on its point about the need for speed.
Finally, while the government may be correct that judicial
review would be difficult had it simply disbursed the funds
with no prior warning, see City of Hous. v. HUD, 24 F.3d 1421,
1424 (D.C. Cir. 1994), that should hardly preclude review
where, as here, the government did take prior agency action in
time to afford review. To be sure, the government might have
argued that the actions taken here, including a solicitation of
information, were not final agency action reviewable under the
APA. We take no position on that question because finality in
this context bears on the scope of the plaintiff’s cause of action;
11
it is a forfeitable objection that the government did not press
here. See Marcum v. Salazar, 694 F.3d 123, 128 (D.C. Cir.
2012).
IV
On the merits, the district court held that ANCs are Indian
tribes within the ISDA definition and thus are eligible for
funding under Title V of the CARES Act. We review de novo
this legal ruling, which was appropriately made on summary
judgment. Stoe v. Barr, 960 F.3d 627, 629 (D.C. Cir. 2020).
In considering the difficult legal question now before us, we
have benefitted greatly from the district court’s two thoughtful
opinions, rendered under severe time constraints, which
carefully assess the arguments on both sides.
Title V of the CARES Act makes funding available “to
States, Tribal governments, and units of local government.” 42
U.S.C. § 801(a)(1). Alaska Native Corporations are neither
“States” nor “units of local government” in Alaska. ANCs thus
are eligible to receive Title V funds only if they are “Tribal
governments.” Title V defines a “Tribal government” as “the
recognized governing body of an Indian Tribe,” id. § 801(g)(5),
and defines “Indian Tribe” as bearing “the meaning given that
term” in ISDA, id. § 801(g)(1). So ANCs are eligible for Title
V funding only if they qualify as an “Indian tribe” under ISDA.
As explained below, ANCs do not satisfy the ISDA definition.
A
ISDA defines an “Indian tribe” as
[1] any Indian tribe, band, nation, or other organized
group or community, [2] including any Alaska Native
village or regional or village corporation as defined in
or established pursuant to the Alaska Native Claims
12
Settlement Act (85 Stat. 688), [3] which is recognized
as eligible for the special programs and services
provided by the United States to Indians because of
their status as Indians.
25 U.S.C. § 5304(e). The first, listing clause sets forth five
kinds of covered Indian entities—any “tribe, band, nation, or
other organized group or community.” The second, Alaska
clause clarifies that three kinds of Alaskan entities are
covered—“any Alaska Native village or regional or village
corporation.” The third, recognition clause restricts the
definition to a subset of covered entities—those “recognized as
eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.”
The text and structure of this definition make clear that the
recognition clause, which is adjectival, modifies all of the
nouns listed in the clauses that precede it. Under the series-
qualifier canon, “[w]hen there is a straightforward, parallel
construction that involves all nouns or verbs in a series, a
prepositive or postpositive modifier normally applies to the
entire series.” A. Scalia & B. Garner, Reading Law 147 (2012);
see, e.g., Lockhart v. United States, 136 S. Ct. 958, 963 (2016)
(canon applies where “the listed items are simple and parallel
without unexpected internal modifiers”); Jama v. ICE, 543
U.S. 335, 344 n.4 (2005) (same where “modifying clause”
appears “at the end of a single, integrated list”). This canon
applies to the listing clause, which ticks off five synonyms in a
grammatically simple list (any “tribe, band, nation, or other
organized group or community”). Moreover, through its usage
of “including,” the Alaska clause operates to equate its two
parallel nouns (“village” and “corporation”) with the five
preceding nouns. And given the obvious similarities between
the Indian entities in the listing clause and Alaska Native
villages—more than 200 of which have been recognized as
13
tribes—the recognition clause undisputedly modifies “village”
as well as the five previously listed Indian groups. Finally, it
is not grammatically possible for the recognition clause to
modify all of the five nouns in the listing clause, plus the first
noun in the more proximate Alaska clause (“village”), but not
the one noun in the preceding two clauses that is its most
immediate antecedent (“corporation”). If possible, we construe
statutory text to make grammatical sense rather than nonsense.
See Scalia & Garner, supra, at 140–43 (“Grammar Canon”).
For these reasons, an ANC cannot qualify as an “Indian tribe”
under ISDA unless it has been “recognized as eligible for the
special programs and services provided by the United States to
Indians because of their status as Indians.”
B
Because no ANC has been federally “recognized” as an
Indian tribe, as the recognition clause requires, no ANC
satisfies the ISDA definition.
“[I]t is a cardinal rule of statutory construction that, when
Congress employs a term of art, it presumably knows and
adopts the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken.” Air
Wis. Airlines Corp. v. Hoeper, 571 U.S. 237, 248 (2014)
(quoting FAA v. Cooper, 566 U.S. 284, 292 (2012)). We
adhere to this presumption unless the statute contains some
“contrary indication.” McDermott Int’l, Inc. v. Wilander, 498
U.S. 337, 342 (1991).
In the context of Indian law, “recognition” is a “legal term
of art.” Frank’s Landing Indian Cmty. v. Nat’l Indian Gaming
Comm’n, 918 F.3d 610, 613 (9th Cir. 2019). It refers to a
“formal political act confirming the tribe’s existence as a
distinct political society, and institutionalizing the government-
to-government relationship between the tribe and the federal
14
government.” Cal. Valley Miwok Tribe v. United States, 515
F.3d 1262, 1263 (D.C. Cir. 2008) (quotation marks omitted).
Federal recognition both establishes the tribe as a “domestic
dependent nation” and “requires the Secretary [of the Interior]
to provide a panoply of benefits and services to the tribe and its
members.” Frank’s Landing, 918 F.3d at 613–14 (quotation
marks omitted); see Muwekma Ohlone Tribe v. Salazar, 708
F.3d 209, 211 (D.C. Cir. 2013) (“Federal recognition is a
prerequisite to the receipt of various services and benefits
available only to Indian tribes.”); Miwok Tribe, 515 F.3d at
1263–64 (noting “the federal benefits that a recognized tribe
and its members may claim”); Golden Hill Paugussett Tribe of
Indians v. Weicker, 39 F.3d 51, 57 (2d Cir. 1994) (“After
passage of the Indian Reorganization Act recognition
proceedings were necessary because the benefits created by it
were made available only to descendants of ‘recognized’
Indian tribes.”). Given the well-established meaning of
“recognition” in Indian law, and its connection to the provision
of benefits to tribal members, we interpret ISDA’s requirement
that an Indian tribe be “recognized as eligible for the special
programs and services provided by the United States to Indians
because of their status as Indians” to require federal recognition
of the putative tribe.
Several pre-ISDA statutes bolster this conclusion. During
the 1950s and 1960s, Congress sought to assimilate Indians by
terminating federal recognition of various tribes, thereby
ending the special relationship that existed between the federal
government and the tribes as sovereigns. Felter v.
Kempthorne, 473 F.3d 1255, 1258 (D.C. Cir. 2007). By rote
formula, these statutes provided that, upon termination,
members of the former tribe “shall not be entitled to any of the
services performed by the United States for Indians because of
their status as Indians.” See, e.g., An Act to Provide for the
Division of the Tribal Assets of the Catawba Indian Tribe of
15
South Carolina, Pub. L. No. 86-322, 73 Stat. 592, 593 (1959);
An Act to Provide for the Distribution of the Land and Assets
of Certain Indian Rancherias and Reservations in California,
Pub. L. No. 85-671, 72 Stat. 619, 621 (1958); An Act to
Provide for the Termination of Federal Supervision Over the
Property of the Ottawa Tribe of Indians in the State of
Oklahoma, Ch. 909, 70 Stat. 963, 964 (1956). 1 These statutes
confirm that, long before ISDA was enacted, there was an
established connection between recognition and sovereignty.
Likewise, in text that closely mirrors ISDA’s recognition
clause, they confirm that with recognition comes various
benefits provided “by the United States for Indians because of
their status as Indians.” In sum, they confirm that not only the
general concept of recognition, but also the specific phrase
used to describe it in ISDA, are terms of art denoting federal
recognition of a sovereign Indian tribe.
The Federally Recognized Indian Tribe List Act of 1994
(List Act) further reinforces this conclusion. It charges the
Secretary of the Interior with “keeping a list of all federally
recognized tribes.” Pub. L. No. 103-454, § 103(6), 108 Stat.
4791, 4792. The list must be “accurate, regularly updated, and
regularly published,” so that all federal agencies may use it “to
determine the eligibility of certain groups to receive services
from the United States.” Id. § 103(7), 108 Stat. at 4792. The
list also must “reflect all federally recognized Indian tribes in
the United States which are eligible for the special programs
and services provided by the United States to Indians because
of their status as Indians.” Id. § 103(8), 108 Stat. at 4792.
Repeating this language, the List Act’s only substantive
section, titled “Publication of list of recognized tribes,”
requires the Secretary to publish annually a list of “all Indian
1
This precise formulation, or close variants of it, appears in at
least sixteen termination statutes enacted between 1954 and 1968.
16
tribes which the Secretary recognizes to be eligible for the
special programs and services provided by the United States to
Indians because of their status as Indians.” 25 U.S.C.
§ 5131(a). Thus, in language that twice tracks ISDA’s
recognition clause almost verbatim, the List Act equates
federal recognition of Indian tribes with eligibility for “the
special programs and services provided by the United States to
Indians because of their status as Indians.”
To be sure, the List Act post-dates ISDA. But during the
time between those two statutes, the Secretary of the Interior
consistently recognized Indian tribes on the same terms and
listed them as so recognized. See Procedures for Establishing
that an American Indian Group Exists as an Indian Tribe, 43
Fed. Reg. 39,361, 39,362 (Sept. 5, 1978) (“[A]cknowledgment
of tribal existence by the Department is a prerequisite to the
protection, services, and benefits from the Federal Government
available to Indian tribes. Such acknowledgment shall also
mean that the tribe is entitled to the immunities and privileges
available to other federally acknowledged Indian tribes by
virtue of their status as Indian tribes . . . .”) (codified at 25
C.F.R. § 83.2 (1978)). Given the strikingly similar language
between the List Act and ISDA, the term-of-art nature of that
language, and its usage in administrative practice spanning
several decades, we conclude that the List Act and ISDA must
reflect the same understanding of tribal recognition.
The intervenors urge a different understanding of what
kind of recognition ISDA requires. Rejecting the term-of-art
understanding laid out above, the intervenors contend that an
Alaska Native group is “recognized” within the meaning of
ISDA if it receives any Indian-related funding or benefits,
regardless of whether the federal government has
acknowledged a sovereign-to-sovereign relationship with the
group. Because some statutes fund programs for Alaska
17
Natives in part through ANCs, see, e.g., 20 U.S.C. § 7453(b)
(Alaska Native language immersion schools), the intervenors
contend that that ANCs are therefore recognized Indian Tribes
for ISDA purposes.
The intervenors’ proposed interpretation cannot be
reconciled with the text of ISDA. First, ISDA’s recognition
clause does not simply require the group to be “recognized as
eligible” for any special program or service “provided by the
United States to Indians because of their status as Indians.”
Instead, it requires the group to be “recognized as eligible for
the special programs and services provided by the United
States to Indians because of their status as Indians” (emphases
added). Use of the definite article (“the”) indicates that what
follows “has been previously specified by context.” Nielsen v.
Preap, 139 S. Ct. 954, 965 (2019). Here, the only “special
programs and services” (in the plural) plausibly specified by
context are the “panoply of benefits and services” to which
“recognized” tribes are entitled. Frank’s Landing, 918 F.3d at
613–14. Second, the intervenors would read recognition out of
ISDA; whereas the statute requires a group to be “recognized
as eligible” for various special programs, the intervenors would
read it to require only that the group be “eligible” to receive
benefits or funding.
The ANCs have not satisfied the recognition clause as we
construe it. They do not contend that the United States has
acknowledged a political relationship with them government-
to-government. Nor could they, for in 1978, the Interior
Department promulgated regulations making “corporations …
formed in recent times” ineligible for recognition. See 25
C.F.R. § 83.4(a). Under that regulation, which remains in
effect, no ANC appears on the Secretary of the Interior’s
current list of recognized Indian tribes. See Indian Entities
Recognized by and Eligible To Receive Services from the
18
United States Bureau of Indian Affairs, 85 Fed. Reg. 5,462
(Jan. 30, 2020). And because ANCs are not federally
recognized, they are not Indian tribes under ISDA.
C
The government agrees that ANCs have not been
“recognized” as ISDA requires. Indeed, it stresses that ANCs,
which have never enjoyed any sovereign-to-sovereign
relationship with the United States, could never be so
recognized. For the government, the upshot is that ANCs need
not satisfy the recognition clause to qualify as Indian tribes.
Otherwise, the government reasons, Congress would have
accomplished nothing by expressly adding “any Alaska native
village or regional or village corporation” (emphasis added)
to the list of possible recognized tribes. Given what the
government describes as a misfit between the last noun in the
statutory list (“corporation”) and the adjectival clause that
follows (including “recognized”), the government contends
that the adjectival clause must be read to modify every listed
noun except its immediate antecedent.
Fortunately, we need not choose between the
government’s interpretation, which produces grammatical
incoherence, and a competing interpretation that would
produce equally problematic surplusage. For we conclude that,
although ANCs cannot be recognized as Indian tribes under
current regulations, it was highly unsettled in 1975, when
ISDA was enacted, whether Native villages or Native
corporations would ultimately be recognized. The Alaska
clause thus does meaningful work by extending ISDA’s
definition of Indian tribes to whatever Native entities
ultimately were recognized—even though, as things later
turned out, no ANCs were recognized.
19
For over a century, claims of tribal sovereignty in Alaska
went largely unresolved. Soon after the Alaska Purchase,
many courts held that Native villages were not sovereigns in
control of some distinct “Indian country.” United States v.
Seveloff, 27 F. Cas. 1021, 1024 (C.C.D. Or. 1872); Kie v.
United States, 27 F. 351, 351–52 (C.C.D. Or. 1886); see also
In re Sah Quah, 31 F. at 329 (“The United States at no time
recognized any tribal independence or relations among these
Indians . . . .”). That view changed over the first half of the
20th century, yet there were still few occasions for the federal
government to develop political relationships with the remote
and isolated Native villages. Sansonetti Op. at *9, *15–16.
Accordingly, the government addressed questions of Native
sovereignty only “in a tentative and reactive way.” Id. at *2.
And when land disputes came to the fore in ANCSA, Congress
complicated the question of Native sovereignty even more. As
a general matter, Indian tribes must control a particular
territory. See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S.
130, 142 (1982); Montoya v. United States, 180 U.S. 261, 266
(1901). But ANCSA terminated 22 of the 23 existing
reservations in Alaska, 43 U.S.C. § 1618(a); extinguished all
aboriginal land claims of Native individuals or tribes, id.
§ 1603; and transferred settlement proceeds not to the Native
villages previously thought to have at least arguable
sovereignty, but to newly-created corporations chartered under
and thus subject to Alaska law, id. §§ 1605(c), 1606(d).
After the enactment of ISDA, questions persisted for
nearly two more decades about the nature of tribal sovereignty
in Alaska. In 1977, a congressional commission concluded that
the sovereign powers of Alaska Native villages had been
placed “largely in abeyance at the present time because the
tribes currently do not possess tribal domains.” 2 Am. Indian
Pol’y Rev. Comm’n, No. 93-440, Final Report, 489, 490–491
& n.12 (1977). In 1988, the Alaska Supreme Court held that
20
Alaska Native villages had “not been accorded tribal
recognition” (except for the tribe inhabiting the one remaining
reservation) and thus lacked tribal sovereign immunity. Native
Vill. of Stevens v. Alaska Mgmt. & Planning, 757 P.2d 32, 39–
41 (Alaska 1988). And as late as January 1993, the Solicitor
of Interior concluded that Alaska Native villages enjoyed some
attributes of tribal sovereignty, but only after conducting an
exhaustive historical survey and analysis of various conflicting
considerations. Sansonetti Op. at *5–35, *75–76. Even then,
the Solicitor concluded that this sovereignty did not extend to
control over the lands transferred by ANCSA to the regional
and village corporations. Id. at *75.
Moreover, ANCSA charged the new ANCs with a handful
of functions that would ordinarily be performed by tribal
governments, making potential future recognition of ANCs
more plausible. For one thing, ANCs were the vehicle for
implementing a global settlement encompassing all land claims
that any Native individual or sovereign could bring against the
United States. 43 U.S.C. § 1601(a). Moreover, the village
corporations were charged with managing the land transferred
by the United States not on behalf of their shareholders, but “on
behalf of a Native village.” Id. § 1602(j). And the regional
corporations were authorized to “promote the health,
education, or welfare” of Alaska Natives. Id. § 1606(r). That
function is currently performed by two large cabinet agencies,
the Department of Health and Human Services and the
Department of Education, which at the time of ANCSA were
constituted as a single Department of Health, Education, and
Welfare. The intervenors themselves characterize ANCs as
performing functions “that one would most naturally describe
as governmental.” Intervenor-Appellees’ Br. at 35.
When ISDA was enacted, the standards and procedures for
the United States to recognize Indian tribes also were unsettled.
21
At that time, recognition occurred in an “an ad hoc manner,”
with petitions for recognition evaluated “on a case-by-case
basis,” Mackinac Tribe v. Jewell, 829 F.3d 754, 756 (D.C. Cir.
2016), and “at the discretion” of the Interior Department,
Procedures Governing Determination that Indian Group Is a
Federally Recognized Indian Tribe, 42 Fed. Reg. 30,647,
30,647 (June 16, 1977). It was not until 1978 that the
Department first promulgated regulations establishing uniform
standards to govern the question whether to grant “formal
recognition” to specific Indian groups. Mackinac Tribe, 829
F.3d at 756.
But even after promulgating those regulations, Interior still
had difficulty sorting out whether to recognize Native villages,
corporations, or both. In 1979, Interior published its first list
of tribes recognized under the new regulatory criteria. The list
contained no Alaska Native entities, which the agency said
would be addressed “at a later date.” Indian Tribal Entities that
Have a Government-To-Government Relationship with the
United States, 44 Fed. Reg. 7,235, 7,235 (Feb. 6, 1979). In
1988, Interior included both villages and corporations in a
single list designated as “native entities within the State of
Alaska recognized and eligible to receive services from the
United States Bureau of Indian Affairs.” Indian Entities
Recognized and Eligible to Receive Services from the United
States Bureau of Indian Affairs, 53 Fed. Reg. 52,829, 52,832–
33 (Dec. 29, 1988) (cleaned up). Finally, Interior changed
course in October 1993, publishing a substantially revised list
of recognized Native entities that included over 200 Alaska
Native villages, but no Alaska Native corporations. Indian
Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 58 Fed. Reg. 54,364
(Oct. 21, 1993). In the preamble to that list, Interior analogized
Native corporations to “tribal organizations” in the lower 48
states, which were not recognized as Indian tribes. See id. at
22
54,365. Moreover, it expressed concern that recognizing
Native corporations as sovereign entities would undercut the
case for so recognizing the traditional Native villages. See id.
As the leading Indian-law treatise explains, “the question of
federal recognition of Alaska tribes” thus was not “definitively
settled” until Interior published this “revised list of federally
recognized tribes” in October 1993. Cohen’s Handbook,
supra, § 4.07(3)(d)(ii).
In sum, when Congress enacted ISDA in 1975, it was
substantially uncertain whether the federal government would
recognize Native villages, Native corporations, both kinds of
entities, or neither. In the face of this uncertainty, Congress
expanded the term “Indian tribe” to cover any Native “village
or regional or village corporation” that was appropriately
“recognized.” By including both villages and corporations,
Congress ensured that any Native entities recognized by
Interior or later legislation would qualify as Indian tribes.
There is no surplusage problem simply because, almost two
decades later, Interior chose to recognize the historic villages
but not the newer corporations as the ultimate repository of
Native sovereignty.
Finally, we reject the government’s plea for deference.
The government does not contend that its interpretation of
ISDA is entitled to deference under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), presumably because that interpretation has never been
formally expressed, see United States v. Mead Corp., 533 U.S.
218, 226–27 (2001). Instead, the government claims
deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944),
to the extent that its position is persuasive. The government’s
position in this case traces back to an internal agency
memorandum written by an Assistant Solicitor of Interior, who
simply asserted that ANCs must be exempt from ISDA’s
23
recognition clause in order to avoid statutory surplusage. That
memorandum did not address any of the textual or historical
considerations set forth above. Moreover, it appears
inconsistent with a binding regulation adopted by the
Department of the Treasury, the agency before the Court on
this appeal. The regulation provides that, under ISDA, “[e]ach
such Indian Tribe” covered by the definition—“including any
Alaska Native village or regional or village corporation” as
defined in ANCSA—“must be recognized as eligible for
special programs and services provided by the United States to
Indians because of their status as Indians.” 12 C.F.R.
§ 1805.104. Because the Interior Department’s administrative
interpretation of ISDA has little persuasive power, we afford it
no deference. Likewise, we decline to follow Cook Inlet Native
Ass’n v. Bowen, 810 F.2d 1471 (9th Cir. 1987), in which the
Ninth Circuit accepted that interpretation. See id. at 1473–76.
For these reasons, we read the ISDA definition to mean
what it says, that Alaska Native villages and corporations count
as an “Indian tribe” only if “recognized” as such.
D
The ANCs suggest that a ruling for the tribes would
produce sweeping adverse consequences. They worry that
such a ruling would disentitle them not only from CARES Act
funding, but also from funding under ISDA and the many other
statutes that incorporate its “Indian tribe” definition. This is far
from obvious, for ISDA makes funding available to any “tribal
organization,” upon request by any “Indian tribe.” 25 U.S.C.
§ 5321(a)(1). And it further defines “tribal organization” to
include not only “the recognized governing body of any Indian
tribe,” but also “any legally established organization of Indians
which is controlled, sanctioned, or chartered by such governing
body.” Id. § 5304(l). The parties disagree on whether ANCs,
24
if requested to provide services by a recognized Native village,
may receive ISDA funding as an “organization of Indians” that
was “sanctioned” by the village to provide the services. We
need not resolve that question, and so we leave it open.
The ANCs further claim flexibility to provide coronavirus
relief to Alaska Natives who are not enrolled in any recognized
village. Given the urgent need for relief, the ANCs say, we
should broadly construe the CARES Act to direct funding to
the entities best able to provide needed services. The short
answer is that we must of course follow statutory text as against
generalized appeals to sound policy. But we also note that
ANCSA expressly preserves “any governmental programs
otherwise available to the Native people of Alaska as citizens
of the United States or the State of Alaska.” 43 U.S.C.
§ 1626(a). We are confident that, if there are Alaska Natives
uncared for because they are not enrolled in any recognized
village, either the State of Alaska or the Department of Health
and Human Services will be able to fill the void.
V
We hold that Alaska Native Corporations are not eligible
for funding under Title V of the CARES Act. We thus reverse
the grant of summary judgment to the government and the
intervenors, as well as the denial of summary judgment to the
plaintiff tribes.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
It is, was and always will be, this court’s duty “to say what the
law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2
L. Ed. 60 (1803), but that does not mean we should be blind to
the impact of our decisions. The COVID-19 pandemic is an
unprecedented calamity, subjecting Americans to physical and
economic suffering on a national scale. The virus respects no
geographic or political boundaries and invades nearly every
facet of life. And as the virus has swept through our Nation, it
has disproportionately affected American Indian and Alaska
Native communities.1
Although I join my colleagues in full, I write separately to
express my view that this decision is an unfortunate and
unintended consequence of high-stakes, time-sensitive
legislative drafting.2 It is indisputable that the services ANCs
provide to Alaska Native communities—including healthcare,
elder care, educational support and housing assistance—have
been made only more vital due to the pandemic. I can think of
no reason that the Congress would exclude ANCs (and thus
exclude many remote and vulnerable Alaska Natives) from
receiving and expending much-needed Title V funds.
1
Press Release, Centers for Disease Control and Prevention,
CDC data show disproportionate COVID-19 impact in American
Indian/Alaska Native populations (Aug. 19, 2020),
https://www.cdc.gov/media/releases/2020/p0819-covid-19-impact-
american-indian-alaska-native.html.
2
The CARES Act was drafted and required to be implemented
on an extraordinarily short timeline. Only eight days elapsed between
the CARES Act’s introduction in the Senate on March 19 and the
President’s signature on March 27. See H.R. 784, 116th Cong. (2020)
(enacted); S. 3548, 116th Cong. (2020). The CARES Act funds at
issue were to be distributed no later than 30 days after enactment and
any undistributed funds are scheduled to lapse on September 30. 42
U.S.C. § 801(a)(1), (b)(1).
2
Indian law, however, does not have a simple history or
statutory scheme and “no amount of wishing will give it a
simple future.” Lummi Indian Tribe v. Whatcom Cty., 5 F.3d
1355, 1360 (9th Cir.) (Beezer, J., dissenting), as amended on
denial of reh’g (Dec. 23, 1993); see also United States v. Lara,
541 U.S. 193, 219 (2004) (Thomas, J., concurring) (“Federal
Indian policy is, to say the least, schizophrenic.”). Indian law’s
complexity and the pressure to provide swift relief may have
proved too much in this case. ISDA is only one of the many
statutes which define “Indian tribe” in less than clear—and
even conflicting—terms.3 I believe the Congress must have had
reason to believe its definition would include ANCs but, by
incorporating by reference ISDA’s counter-intuitive definition,
it did not, in fact, do so. As a result, many of our fellow citizens
who depend on ANCs will not receive Title V aid. Nonetheless
it is not this court’s job to “soften . . . Congress’ chosen words
whenever [we] believe[] those words lead to a harsh result.”
United States v. Locke, 471 U.S. 84, 95 (1985). And a harsh
result it is.
3
For example, the Native American Housing Assistance and
Self-Determination Act defines “Indian tribe” as a “federally
recognized tribe” and defines “federally recognized tribe” as those
tribes, Alaska Native villages or ANCs “recognized as eligible for
the special programs and services provided by the United States to
Indians because of their status as Indians pursuant to [ISDA].” 25
U.S.C. §4103(13)(B) (emphasis added).