Yellen v. Confederated Tribes of Chehalis Reservation

7/28/2021 10:54:48 AM
Compare Results
Old File: New File:
20-543.pdf 20-543_new.pdf
versus
46 pages (230 KB) 46 pages (229 KB)
6/25/2021 8:34:55 AM 7/28/2021 10:48:42 AM
Total Changes Content Styling and
2
Annotations
2 Replacements
0 Styling
0 Insertions
0 Annotations
0 Deletions
Go to First Change (page 30)
file://NoURLProvided[7/28/2021 10:54:48 AM]
(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
YELLEN, SECRETARY OF TREASURY v.
CONFEDERATED TRIBES OF THE CHEHALIS
RESERVATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 20–543. Argued April 19, 2021—Decided June 25, 2021*
Title V of the Coronavirus Aid, Relief, and Economic Security (CARES)
Act allocates $8 billion to “Tribal governments” to compensate for un-
budgeted expenditures made in response to COVID–19. 42 U. S. C.
§801(a)(2)(B). The question in these cases is whether Alaska Native
Corporations (ANCs) are eligible to receive any of that $8 billion. Un-
der the CARES Act, a “Tribal government” is the “recognized govern-
ing body of an Indian tribe” as defined in the Indian Self-Determina-
tion and Education Assistance Act (ISDA). §§801(g)(5), (1). ISDA, in
turn, defines an “Indian tribe” as “any Indian tribe, band, nation, or
other organized group or community, including any Alaska Native vil-
lage or regional or village corporation as defined in or established pur-
suant to the Alaska Native Claims Settlement Act [(ANCSA),] 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).
Consistent with the Department of the Interior’s longstanding view
that ANCs are Indian tribes under ISDA, the Department of the Treas-
ury determined that ANCs are eligible for relief under Title V of the
CARES Act, even though ANCs are not “federally recognized tribes”
(i.e., tribes with which the United States has entered into a govern-
ment-to-government relationship). A number of federally recognized
——————
*Together with No. 20–544, Alaska Native Village Corp. Association
et al. v. Confederated Tribes of the Chehalis Reservation et al., also on
certiorari to the same court.
2 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Syllabus
tribes sued. The District Court entered summary judgment for the
Treasury Department and the ANCs, but the Court of Appeals for the
District of Columbia Circuit reversed.
Held: ANCs are “Indian tribe[s]” under ISDA and thus eligible for fund-
ing under Title V of the CARES Act. Pp. 7–28.
(a) The ANCs argue that they fall under the plain meaning of ISDA’s
definition of “Indian tribe.” Respondents ask the Court to adopt a
term-of-art construction that equates being “recognized as eligible for
the special programs and services provided by the United States to In-
dians because of their status as Indians” with being a “federally recog-
nized tribe.” Pp. 7–25.
(1) Under the plain meaning of ISDA, ANCs are Indian tribes.
ANCs are “established pursuant to” ANCSA and thereby “recognized
as eligible” for that Act’s benefits. ANCSA, which made ANCs eligible
to select tens of millions of acres of land and receive hundreds of mil-
lions of tax-exempt dollars, 43 U. S. C. §§1605, 1610, 1611, is a special
program provided by the United States to “Indians,” i.e., Alaska Na-
tives. Given that ANCSA is the only statute ISDA’s “Indian tribe” def-
inition mentions by name, eligibility for ANCSA’s benefits satisfies the
definition’s final “recognized-as-eligible” clause. Pp. 7–11.
(2) Respondents ask the Court to read ISDA’s “Indian tribe” defi-
nition as a term of art. But respondents fail to establish that the lan-
guage of ISDA’s recognized-as-eligible clause was an accepted way of
saying “a federally recognized tribe” in 1975, when ISDA was passed.
Nor is the mere inclusion of the word “recognized” enough to import a
term-of-art meaning. Respondents also fail to show that the language
of the recognized-as-eligible clause later became a term of art that
should be backdated to ISDA’s passage in 1975. Pp. 11–18.
(3) Even if ANCs did not satisfy the recognized-as-eligible clause,
they would still satisfy ISDA’s definition of an “Indian tribe.” If re-
spondents were correct that only a federally recognized tribe can sat-
isfy that clause, then the best way to read the “Indian tribe” definition
would be for the recognized-as-eligible clause not to apply to ANCs at
all. Otherwise, despite being prominently “includ[ed]” in the “Indian
tribe” definition, 25 U. S. C. §5304(e), all ANCs would be excluded by
a federal-recognition requirement there is no reasonable prospect they
could ever satisfy. Pp. 18–23.
(4) Respondents’ remaining arguments that ANCs are not Indian
tribes under ISDA are unpersuasive. They first argue that the ANCs
misrepresent how meaningful a role they play under ISDA because the
actual number of ISDA contracts held by ANCs is negligible. This
point is largely irrelevant. No one would argue that a federally recog-
nized tribe was not an Indian tribe under ISDA just because it had
never entered into an ISDA contract. Respondents further argue that
Cite as: 594 U. S. ____ (2021) 3
Syllabus
treating ANCs as Indian tribes would complicate the administration
of ISDA. But respondents point to no evidence of such administrative
burdens in the 45 years the Executive Branch has treated ANCs as
Indian tribes. Respondents also warn that blessing ANCs’ status un-
der ISDA will give ANCs ammunition to press for participation in
other statutes that incorporate ISDA’s “Indian tribe” definition. This
concern cuts both ways, as adopting respondents’ position would pre-
sumably exclude ANCs from the many other statutes incorporating
ISDA’s definition, even those under which ANCs have long benefited.
Pp. 23–25.
(b) One respondent tribe further argues that the CARES Act ex-
cludes ANCs regardless of whether they are Indian tribes under ISDA,
because ANCs do not have a “recognized governing body.” In the ISDA
context, the term “recognized governing body” has long been under-
stood to apply to an ANC’s board of directors, and nothing in either the
CARES Act or ISDA suggests that the term places additional limits on
the kinds of Indian tribes eligible to benefit under the statutes. Pp.
26–27.
976 F. 3d 15, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and BREYER, KAVANAUGH, and BARRETT, JJ., joined, and in which
ALITO, J., joined as to Parts I, II–C, II–D, III, and IV. GORSUCH, J., filed
a dissenting opinion, in which THOMAS and KAGAN, JJ., joined.
Cite as: 594 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–543 and 20–544
_________________
JANET L. YELLEN, SECRETARY OF THE
TREASURY, PETITIONER
20–543 v.
CONFEDERATED TRIBES OF THE CHEHALIS
RESERVATION, ET AL.
ALASKA NATIVE VILLAGE CORPORATION
ASSOCIATION, INC., ET AL., PETITIONERS
20–544 v.
CONFEDERATED TRIBES OF THE CHEHALIS
RESERVATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 25, 2021]
JUSTICE SOTOMAYOR delivered the opinion of the Court.*
In March 2020, Congress passed the Coronavirus Aid, Re-
lief, and Economic Security (CARES) Act, 134 Stat. 281. Ti-
tle V of the Act allocates $8 billion of monetary relief to
“Tribal governments.” 134 Stat. 502, 42 U. S. C.
§801(a)(2)(B). Under the CARES Act, a “Tribal govern-
ment” is the “recognized governing body of an Indian tribe”
as defined in the Indian Self-Determination and Education
Assistance Act (ISDA). §§801(g)(5), (1). ISDA, in turn, de-
fines an “Indian tribe” as “any Indian tribe, band, nation,
——————
*JUSTICE ALITO joins Parts I, II–C, II–D, III, and IV of this opinion.
2 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
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.” 25
U. S. C. §5304(e).
The Department of the Treasury asked the Department
of the Interior, the agency that administers ISDA, whether
Alaska Native Corporations (ANCs) meet that definition.
Consistent with its longstanding view, the Interior Depart-
ment said yes. The Treasury Department then set aside
approximately $500 million of CARES Act funding for the
ANCs. The question presented is whether ANCs are “In-
dian tribe[s]” under ISDA, and are therefore eligible to re-
ceive the CARES Act relief set aside by the Treasury De-
partment. The Court holds that they are.
I
This is not the first time the Court has addressed the
unique circumstances of Alaska and its indigenous popula-
tion. See, e.g., Sturgeon v. Frost, 587 U. S. ___ (2019); Stur-
geon v. Frost, 577 U. S. 424 (2016); Alaska v. Native Village
of Venetie Tribal Government, 522 U. S. 520 (1998);
Metlakatla Indian Community v. Egan, 369 U. S. 45 (1962).
The “simple truth” reflected in those prior cases is that
“Alaska is often the exception, not the rule.” Sturgeon, 577
U. S., at 440. To see why, one must first understand the
United States’ unique historical relationship with Alaska
Natives.
A
When the United States purchased the Territory of
Alaska from Russia in 1867, Alaska Natives lived in com-
munities dispersed widely across Alaska’s 365 million
acres. In the decades that followed, “[t]here was never an
Cite as: 594 U. S. ____ (2021) 3
Opinion of the Court
attempt in Alaska to isolate Indians on reservations,” as
there had been in the lower 48 States. Metlakatla Indian
Community, 369 U. S., at 51. As a consequence, the claims
of Alaska Natives to Alaskan land remained largely unset-
tled even following Alaska’s admission to the Union as our
49th State in 1959.1 See Alaska Statehood Act, §4, 72 Stat.
339; Sturgeon, 577 U. S., at 429.
That changed in 1971 with the Alaska Native Claims Set-
tlement Act (ANCSA). 85 Stat. 688, 43 U. S. C. §1601et seq. ANCSA officially dispensed with the idea of recreat-
ing in Alaska the system of reservations that prevailed in
the lower 48 States. It extinguished Alaska Natives’ claims
to land and hunting rights and revoked all but one of
Alaska’s existing reservations. §1610. In exchange, “Con-
gress 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. Native Village of
Venetie Tribal Government, 522 U. S., at 524. These corpo-
rations are called ANCs.
Relevant here, ANCs come in two varieties: regional
ANCs and village ANCs. To form the regional ANCs, the
Act directed the Secretary of the Interior to divide Alaska
into 12 geographic regions. §1606(a). Within each region,
——————
1 There were some exceptions. Congress created by statute two Alaska
Native reservations: the Annette Islands Reserve in 1891 and the
Klukwan Reserve in 1957. See Act of Mar. 3, 1891, §15, 26 Stat. 1101;
Act of Sept. 2, 1957, Pub. L. 85–271, 71 Stat. 596. Under the 1936
Amendment to the Indian Reorganization Act, ch. 254, 49 Stat. 1250, six
further reservations were formed. See Letter from T. Sansonetti, Solici-
tor of the U. S. Dept. of Interior, to M. Lujan, Jr., Secretary of Interior 33
(Jan. 11, 1993). Alaska also saw the creation of certain “executive order
reserves,” which were more limited in purpose and scope and, like all
reserves in Alaska besides the Annette Islands Reserve, were ultimately
revoked by the Alaska Native Claims Settlement Act (ANCSA). See gen-
erally D. Case & D. Voluck, Alaska Natives and Americans Laws 85–112
(3d ed. 2012).
4 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
Alaska Natives were instructed to “incorporate under the
laws of Alaska a Regional Corporation to conduct business
for profit.” §1606(d). To form the village ANCs, the Act
identified approximately 200 Alaska “Native villages,” a
term encompassing any community of 25 or more Alaska
Natives living together as of the 1970 census. §§1602(c),
1610(b), 1615(a). For each Alaska Native village, ANCSA
ordered the “Native residents” to create an accompanying
village corporation to “hold, invest, manage and/or distrib-
ute lands, property, funds, and other rights and assets for
and on behalf ” of the village. §§1602(j), 1607(a). ANCSA
then directed the Secretary to prepare a roll showing the
region and, if applicable, village to which each living Alaska
Native belonged. §1604. Enrolled Alaska Natives then re-
ceived shares in their respective ANCs. §§1606(g), 1607.
B
In 1975, four years after ANCSA’s enactment, Congress
passed ISDA. 25 U. S. C. §5301 et seq. ISDA answered the
call for a “new national policy” of “autonomy” and “control”
for Native Americans and Alaska Natives. H. R. Doc. No.
91–363, p. 3 (1970); see also Menominee Tribe of Wis. v.
United States, 577 U. S. 250, 252 (2016) (“Congress enacted
[ISDA] in 1975 to help Indian tribes assume responsibility
for aid programs that benefit their members”).
ISDA decentralized the provision of federal Indian bene-
fits away from the Federal Government and toward Native
American and Alaska Native organizations. ISDA allows
any “Indian tribe” to request that the Secretary of the Inte-
rior enter into a self-determination contract with a desig-
nated “tribal organization.” §5321(a)(1). Under such a con-
tract, the tribal organization delivers federally funded
economic, infrastructure, health, or education benefits to
the tribe’s membership.
As originally drafted, ISDA’s “Indian tribe” definition did
not mention ANCs. H. R. 6372, 93d Cong., 1st Sess., §1(a)
Cite as: 594 U. S. ____ (2021) 5
Opinion of the Court
(1973) (defining “Indian tribe” to mean “an Indian tribe,
band, nation, or Alaska Native Community for which the
Federal Government provides special programs and ser-
vices because of its Indian identity”). Prior to passage, how-
ever, the definition was amended twice to include, first,
Alaska Native villages and, second, ANCs. See H. R. Rep.
No. 93–1600, p. 14 (1974) (“The Subcommittee amended the
definition of ‘Indian tribe’ to include regional and village
corporations established by [ANCSA]”). Today, ISDA de-
fines 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 [ANCSA], which is
recognized as eligible for the special programs and services
provided by the United States to Indians because of their
status as Indians.” §5304(e).2
Despite the express inclusion of ANCs in the definition of
“Indian tribe,” a question arose in the Interior Department
whether the “recognized-as-eligible clause” limits the defi-
nition to “federally recognized tribes” only. A federally rec-
ognized tribe is one that has entered into “a government-to-
government relationship [with] the United States.” 1 F.
Cohen, Handbook of Federal Indian Law §3.02[3] (N. New-
ton ed. 2012). This recognition can come in a number of
ways: “from treaty, statute, executive or administrative or-
der, or from a course of dealing with the tribe as a political
entity.” W. Canby, American Indian Law in a Nutshell 4
(7th ed. 2020). As private companies incorporated under
state law, ANCs have never been “recognized” by the
United States in this sovereign political sense.
In 1976, the year after ISDA’s enactment, the Interior
Department’s Assistant Solicitor for Indian Affairs issued a
——————
2 In 1990, Congress made “technical corrections” to ISDA. S. Rep. No.
101–226, p. 10 (1989). Relevant here, Congress inserted a comma after
the “Indian tribe” definition’s reference to ANCSA, bringing the defini-
tion to what it is today. Act of May 24, 1990, §2(a)(1), 104 Stat. 206.
6 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
memorandum on the status of ANCs under ISDA. App. 44–
48. In the Assistant Solicitor’s view, the express inclusion
of ANCs within the definition of “Indian tribe” confirmed
that ANCs are Indian tribes under ISDA, even though they
are not federally recognized tribes. In the decades since,
the Interior Department has repeatedly reaffirmed that po-
sition. See, e.g., 60 Fed. Reg. 9250 (1995) (ANCs “ha[ve]
been designated as ‘tribes’ for the purposes of some Federal
laws,” including ISDA); 58 Fed. Reg. 54364 (1993) (ANCs
“are not governments, but they have been designated as
‘tribes’ for the purposes of ” ISDA); 53 Fed. Reg. 52833(1988) (ISDA “specifically include[s]” ANCs).
C
In 2020, Congress incorporated ISDA’s “Indian tribe” def-
inition into the CARES Act. 42 U. S. C. §801(g)(1). Title V
of the Act allocates $150 billion to “States, Tribal govern-
ments, and units of local government” to compensate for un-
budgeted expenditures made in response to COVID–19.
§801(a)(1). Of that $150 billion, $8 billion is reserved for
“Tribal governments.” §801(a)(2)(B). A “Tribal govern-
ment” is the “recognized governing body of an Indian Tribe,”
as ISDA defines the latter term. §§801(g)(5), (1).
On April 23, 2020, the Treasury Department determined
that ANCs are eligible for CARES Act relief, and set aside
more than $500 million for them (since reduced to approxi-
mately $450 million). App. 53–54; Letter from E. Prelogar,
Acting Solicitor General, to S. Harris, Clerk of Court (May
12, 2021). Soon after the Treasury Department’s announce-
ment, a number of federally recognized tribes (respondents)
sued, arguing that only federally recognized tribes are In-
dian tribes under ISDA, and thus under the CARES Act.
Some Tribes further argued that ANCs do not have a “rec-
ognized governing body” for purposes of the CARES Act and
are ineligible to receive its funding for that reason as well.
The suits were consolidated in the District Court for the
Cite as: 594 U. S. ____ (2021) 7
Opinion of the Court
District of Columbia, which ultimately entered summary
judgment for the Treasury Department and the ANCs. The
Court of Appeals for the District of Columbia Circuit re-
versed. Confederated Tribes of Chehalis Reservation v.
Mnuchin, 976 F. 3d 15 (2020). In its view, the recognized-
as-eligible clause is a term of art requiring any Indian tribe
to be a federally recognized tribe. Because no ANC is fed-
erally recognized, the court reasoned, no ANC qualifies for
funding under Title V of the CARES Act. In so holding, the
D. C. Circuit split with the Ninth Circuit, which had held
decades prior in Cook Inlet Native Assn. v. Bowen, 810 F. 2d
1471 (1987), that ANCs are Indian tribes for ISDA pur-
poses, regardless of whether they have been federally rec-
ognized. Id., at 1474.
We granted certiorari, 592 U. S. ___ (2021), to resolve the
Circuit split and determine whether ANCs are eligible for
the CARES Act funding set aside by the Treasury Depart-
ment.
II
All but one of the respondent Tribes agree that ANCs are
eligible to receive the CARES Act funds in question if they
are Indian tribes for purposes of ISDA.3 The primary ques-
tion for the Court, then, is whether ANCs satisfy ISDA’s
definition of “Indian tribe.” The ANCs ask the Court to an-
swer that question by looking to the definition’s plain mean-
ing. Respondents ask the Court to adopt a term-of-art con-
struction that equates being “recognized as eligible for the
special programs and services provided by the United
States to Indians” with being a “federally recognized tribe,”
i.e., a tribe recognized by the United States in a sovereign
political sense.
——————
3 The Court addresses the arguments of that one Tribe in Part III, in-
fra.
8 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
A
Starting with the plain meaning, an “Indian tribe” under
ISDA is a “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 [ANCSA], which is recognized as eligible for the special
programs and services provided by the United States to In-
dians because of their status as Indians.” 25 U. S. C.
§5304(e). The definition’s first two clauses are straightfor-
ward enough. The first lists entities that might count as
Indian tribes under the Act (e.g., tribes, bands, nations).
The second, “the Alaska clause,” makes clear that Alaska
Native villages and ANCs are “includ[ed].” The third, “the
recognized-as-eligible clause,” requires more analysis. Ac-
cording to that clause, the listed entities must be “recog-
nized as eligible for the special programs and services pro-
vided by the United States to Indians because of their
status as Indians.”
ANCs, of course, are “established pursuant to” ANCSA
within the meaning of the Alaska clause. They are thereby
“recognized as eligible” for ANCSA’s benefits. The trickier
question is whether eligibility for the benefits of ANCSA
counts as eligibility for “the special programs and services
provided by the United States to Indians because of their
status as Indians.”
It does. Contrary to the dissent’s view, post, at 9–10
(opinion of GORSUCH, J.), ANCSA is readily described as a
special program provided by the United States to “Indians”
(in this case, Alaska Natives). See 43 U. S. C. §1626 (de-
scribing ANCSA’s relationship to “other programs”). The
scope of that program is substantial: ANCSA made ANCs
eligible to select tens of millions of acres of land and receive
hundreds of millions of tax-exempt dollars. §§1605, 1610,
1611. Not just a one-time payment, ANCSA provides for
revenue sharing among the regional ANCs to ensure Alaska
Natives across the State benefit from an ongoing equitable
Cite as: 594 U. S. ____ (2021) 9
Opinion of the Court
distribution of ANC profits. §1606(i). ANCSA further en-
trusts ANCs to “hold, invest, manage and/or distribute
lands, property, funds, and other rights and assets for and
on behalf ” of Alaska Natives, who are the ANCs’ sharehold-
ers, as well as to distribute dividends to them. See
§§1602(j), 1606(j). Moreover, ANCs and their shareholders
are “eligible for the benefits of ” ANCSA, §1606(d), precisely
because of their status as Indians. See §1626(e)(1) (“For all
purposes of Federal law, a Native Corporation shall be con-
sidered to be a corporation owned and controlled by Na-
tives”); note following §1601, p. 1136 (ANCSA is “ ‘Indian
legislation enacted by Congress pursuant to its plenary au-
thority under the Constitution of the United States to reg-
ulate Indian affairs’ ”).
Respondents do not deny that the benefits of ANCSA are
“a” special program or service provided by the United States
to Indians. According to respondents, however, such bene-
fits are not “the” special programs and services provided to
Indians (e.g., healthcare, education, and other social ser-
vices provided by federal agencies like the Bureau of Indian
Affairs and the Indian Health Service). “The” special pro-
grams and services, respondents assert, are available only
to federally recognized tribes (or, more precisely, to mem-
bers of such tribes). In respondents’ view, ANCs are thus
“includ[ed]” in the “Indian tribe” definition’s Alaska clause
only to be excluded en masse from that definition by the
recognized-as-eligible clause.
That would certainly be an odd result. Fortunately, the
text does not produce it. ISDA’s “Indian tribe” definition
does not specify the particular programs and services an
entity must be eligible for to satisfy the recognized-as-
eligible clause. Given that ANCSA is the only statute the
“Indian tribe” definition mentions by name, the best read-
ing of the definition is that being eligible for ANCSA’s ben-
efits by itself satisfies the recognized-as-eligible clause.
10 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
Consider a similarly worded example. A doctor recom-
mends getting a blood test every six months to “any child,
adult, or senior, including anyone over the age of 75 whose
blood-sugar levels have tested in the prediabetic range
within the last five years, who exhibits the warning signs
of Type 2 diabetes.” Without further context, it is unclear
exactly which warning signs the doctor is referring to, or
how many of those signs a child, adult, or senior must ex-
hibit before warranting biannual testing. But it is fair to
say that individuals over 75 with prediabetic blood-sugar
levels within the last five years should get tested biannu-
ally, even if they exhibit no other warning signs. By ex-
pressly “including” individuals with that one warning sign,
the doctor’s recommendation makes clear that particular
sign, by itself, is warning enough.
Just so here: Congress’ express inclusion of ANCs “estab-
lished pursuant to [ANCSA]” confirms that eligibility for
ANCSA’s benefits alone is eligibility enough to be an Indian
tribe. ANCs thus satisfy ISDA’s Indian tribe definition, re-
gardless of whether they and their shareholders are eligible
for federal Indian programs and services other than those
provided in ANCSA. At any rate, the one-to-one relation-
ship respondents posit between membership in a federally
recognized tribe and eligibility for federal Indian benefits
more broadly does not hold in the unique circumstances of
Alaska. See Letter from E. Prelogar, Acting Solicitor Gen-
eral, to S. Harris, Clerk of Court (Apr. 22, 2021) (“[T]he fed-
eral government has historically provided benefits and ser-
vices to Alaska Natives who are not enrolled members of a
federally recognized Indian tribe”); D. Case & D. Voluck,
Alaska Natives and Americans Laws 30 (3d ed. 2012)
(“[T]he federal government has, at least since the end of the
nineteenth century, provided a wide variety of programs
and services to Alaska Natives solely because of their status
as Natives”). So ANCSA is not, in fact, the only federal In-
Cite as: 594 U. S. ____ (2021) 11
Opinion of the Court
dian program or service for which ANCs and their share-
holders are eligible.
It should come as no surprise that Congress made ANCs
eligible to contract under ISDA. After all, Congress itself
created ANCs just four years earlier to receive the benefits
of the Alaska land settlement on behalf of all Alaska Na-
tives. Allowing ANCs to distribute federal Indian benefits
more broadly is entirely consistent with the approach Con-
gress charted in ANCSA. Accord, 1 American Indian Policy
Review Comm’n, Final Report, 95th Cong., 1st Sess., 495
(Comm. Print 1977) (ANCs “might well be the form or or-
ganization best suited to sponsor certain kinds of federally
funded programs” in Alaska); 43 U. S. C. §1606(r) (“The au-
thority of a Native Corporation to provide benefits . . . to
promote the health, education, or welfare of . . . sharehold-
ers or family members is expressly authorized and con-
firmed”).
Under the plain meaning of ISDA, ANCs are Indian
tribes, regardless of whether they are also federally recog-
nized tribes. In so holding, the Court does not open the door
to other Indian groups that have not been federally recog-
nized becoming Indian tribes under ISDA. Even if such
groups qualify for certain federal benefits, that does not
make them similarly situated to ANCs. ANCs are sui gen-
eris entities created by federal statute and granted an enor-
mous amount of special federal benefits as part of a legisla-
tive experiment tailored to the unique circumstances of
Alaska and recreated nowhere else. Moreover, with the ex-
ception of Alaska Native villages (which are now federally
recognized), no entities other than ANCs are expressly “in-
clud[ed]” by name in ISDA’s “Indian tribe” definition. Cf.
Sturgeon, 577 U. S., at 440 (“All those Alaska-specific pro-
visions reflect the simple truth that Alaska is often the ex-
ception, not the rule”).
12 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
B
Respondents urge this Court to discard the plain mean-
ing of the “Indian tribe” definition in favor of a term-of-art
construction. In respondents’ view, the 69 words of the “In-
dian tribe” definition are a long way of saying just 8: An
“Indian tribe” means a “federally recognized tribe.” If that
is right, respondents are correct that ANCs are not Indian
tribes, because everyone agrees they are not federally rec-
ognized tribes. To prevail on this argument, however, re-
spondents must demonstrate that the statutory context
supports reading ISDA’s “Indian tribe” definition as a term
of art rather than according to its plain meaning. See John-
son v. United States, 559 U. S. 133, 139 (2010). Their efforts
are not persuasive.
In arguing for a term-of-art construction, respondents
first rely on a series of Acts that terminated various tribes
starting in the late 1950s. Those Acts closed tribal mem-
bership rolls, specified the division of tribal assets, and re-
voked tribal constitutions. See, e.g., Act of Sept. 21, 1959,
Pub. L. No. 86–322, 73 Stat. 592. Following termination,
the tribe and its members were no longer “entitled to any of
the special services performed by the United States for In-
dians because of their status as Indians.” §5, id., at 593. As
respondents note, this language resembles (although does
not mirror precisely) the final words of ISDA’s recognized-
as-eligible clause. If being terminated means no longer be-
ing “entitled to any of the special services performed by the
United States for Indians because of their status as Indi-
ans,” the argument goes, then being “recognized as eligible
for the special programs and services provided by the
United States to Indians because of their status as Indians”
means being a federally recognized tribe.
Respondents misjudge the relevance of these termination
statutes. Those statutes do not contain the words “recog-
nized as eligible”; they do not even contain the word “recog-
nized.” Furthermore, the termination statutes use their
Cite as: 594 U. S. ____ (2021) 13
Opinion of the Court
ISDA-reminiscent phrasing not as a synonym for termina-
tion but to describe just one, among other, consequences of
a tribe’s constitution being revoked. See, e.g., ibid. (“The
constitution of the tribe . . . shall be revoked by the Secre-
tary. Thereafter, the tribe and its members shall not be
entitled to any of the special services performed by the
United States for Indians because of their status as Indi-
ans, all statutes of the United States that affect Indians be-
cause of their status as Indians shall be inapplicable to
them, and the laws of the several States shall apply to them
in the same manner they apply to other persons or citizens
within their jurisdiction”).
Some linguistic similarity between ISDA and the termi-
nation statutes does not suggest that the language of the
recognized-as-eligible clause was an accepted way of saying
“a federally recognized tribe” in 1975. It instead supports a
much more limited proposition: A federally recognized tribe
that has not been terminated is “entitled” to “special ser-
vices performed by the United States for Indians,” and
thereby satisfies ISDA’s similarly worded recognized-as-
eligible clause. But of course, no one disputes that being a
federally recognized tribe is one way to qualify as an Indian
tribe under ISDA; it is just not the only way.
Nor is the mere inclusion of the word “recognized” enough
to give the recognized-as-eligible clause a term-of-art mean-
ing. True, the word “recognized” often refers to a tribe with
which the United States has a government-to-government
relationship (particularly when it is sandwiched between
the words “federally” and “tribe”). That does not mean,
however, that the word “recognized” always connotes polit-
ical recognition.4
——————
4 Indeed, “recognition” is not even the sole term used to describe tribes
with which the United States maintains a government-to-government
relationship; “acknowledgement” is often used for that same purpose.
See 1 F. Cohen, Handbook of Federal Indian Law §3.02[3] (N. Newton
ed. 2012) (“Federal acknowledgement or recognition of an Indian group’s
14 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
“Recognized” is too common and context dependent a
word to bear so loaded a meaning wherever it appears, even
in laws concerning Native Americans and Alaska Natives.
Cf. Bruesewitz v. Wyeth LLC, 562 U. S. 223, 235 (2011) (de-
clining to read “unavoidable” as a term of art in part be-
cause “ ‘[u]navoidable’ is hardly a rarely used word”). Cer-
tainly, “recognized” can signify political recognition; it can
also refer to something far more pedestrian. See, e.g.,
Black’s Law Dictionary 1436 (rev. 4th ed. 1968) (defining
“recognition” as “[r]atification; confirmation; an acknowl-
edgment that something done by another person in one’s
name had one’s authority”). The type of recognition re-
quired is a question best answered in context. See, e.g., 25
U. S. C. §3002(a)(2)(C)(1) (providing for control over certain
cultural items “in the Indian tribe that is recognized as ab-
originally occupying the area in which the objects were dis-
covered”); §4352(3) (defining a “Native Hawaiian organiza-
tion” as a nonprofit that, among other things, “is recognized
for having expertise in Native Hawaiian culture and herit-
age, including tourism”). In ISDA, the required recognition
is of an entity’s eligibility for federal Indian programs and
services, not a government-to-government relationship
with the United States.5
——————
legal status as a tribe is 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 fed-
eral government”). For instance, in 1978, three years after ISDA’s en-
actment, the Bureau of Indian Affairs adopted “procedures for acknowl-
edging that certain American Indian tribes exist.” 43 Fed. Reg. 39361(1978). To this day, applications to become a federally recognized tribe
are made to the Office of Federal Acknowledgement, and the Interior De-
partment still uses “recognized” and “acknowledged” somewhat inter-
changeably. See, e.g., 86 Fed. Reg. 7554 (2021) (“Published below is an
updated list of federally acknowledged Indian Tribes”).
5 The dissent reads the congressional findings to ISDA as providing a
textual clue that government-to-government recognition is required. See
post, at 7 (opinion of GORSUCH, J.) (“When Congress passed ISDA, it
sought to provide Indians ‘meaningful leadership roles’ that are ‘crucial
Cite as: 594 U. S. ____ (2021) 15
Opinion of the Court
Respondents next rely on sources that postdate ISDA.
Ordinarily, however, this Court reads statutory language
as a term of art only when the language was used in that
way at the time of the statute’s adoption. See Food Market-
ing Institute v. Argus Leader Media, 588 U. S. ___, ___
(2019) (slip op., at 10) (rejecting a term-of-art reading where
the parties “mustered no evidence that the terms of ” the
statute carried a “specialized common law meaning . . . at
the time of their adoption”). In relying on sources postdat-
ing ISDA, respondents must show not only that the lan-
guage of the recognized-as-eligible clause later became a
term of art, but also that this term-of-art understanding
should be backdated to ISDA’s passage in 1975. They can-
not make that showing.
Respondents lean most heavily on the Federally Recog-
nized Indian Tribe List Act of 1994 (List Act), enacted al-
most 20 years after ISDA. See 25 U. S. C. §§5130, 5131.
The List Act requires the Secretary of the Interior to pub-
lish an annual list of “all Indian tribes which the Secretary
recognizes to be eligible for the special programs and ser-
vices provided by the United States to Indians because of
their status as Indians.” §5131(a). According to respond-
ents, ANCs’ absence from the Secretary’s list confirms that
they are not “eligible for the special programs and services
provided by the United States to Indians because of their
——————
to the realization of self-government’ ” (citing 25 U. S. C. §5301)). As al-
ready explained, however, supra, at 10–11, allowing ANCs to contract
under ISDA, notwithstanding their lack of political recognition, is en-
tirely consistent with that statute’s stated objective of “establish[ing] . . .
a meaningful Indian self-determination policy.” §5301(b). Congress also
designed ANCSA to be “in conformity with the real economic and social
needs of Natives” and to facilitate “maximum participation by Natives in
decisions affecting their rights and property.” 43 U. S. C. §1601(b).
ANCs are the vehicles Congress created to further that policy of self-de-
termination. Accord, S. Conf. Rep. No. 92–581, p. 37 (1971) (“[T]he cre-
ation of Regional and Village Corporations” are part of “a policy of self-
determination on the part of the Alaska Native people”).
16 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
status as Indians,” §5304(e), and thus fail ISDA’s recognized-
as-eligible clause.
Respondents’ cross-referencing argument, however, re-
quires the Court to ignore the reason why ANCs are not on
the list. True to its full name, the Federally Recognized In-
dian Tribe List Act tasks the Secretary with maintaining a
“ ‘list of federally recognized tribes’ ” only. Note following
§5130, p. 678. The List Act, moreover, lacks language like
that in ISDA expressly “including” ANCs “established pur-
suant to” ANCSA. §5304(e). The obvious inference, then,
is that ANCs are not on the Secretary’s list simply because
they are not federally recognized.
History confirms as much. In 1979, 15 years before the
List Act was passed, the Secretary began publishing a list
of Indian tribes “that have a government-to-government re-
lationship with the United States.” 44 Fed. Reg. 7235. In
1988, ANCs were added to the Secretary’s list, which had
been retitled “Indian Entities Recognized and Eligible To
Receive Services From the United States Bureau of Indian
Affairs,” because ANCs are “specifically eligible for the
funding and services of the [Bureau of Indian Affairs] by
statute” and “should not have to undertake to obtain Fed-
eral Acknowledgement” (i.e., federal recognition). 53 Fed.
Reg. 52829, 52832. In 1993, the Secretary dropped ANCs
from the list, concluding that “the inclusion of ANC[s],
which lack tribal status in a political sense, called into ques-
tion the status” of the other entities on the list. 58 Fed. Reg.
54365. In so doing, the Secretary reaffirmed that ANCs
“are not governments, but they have been designated as
‘tribes’ for the purposes of some Federal laws,” including
ISDA. Id., at 54364. The List Act, passed the following
year, “confirmed the Secretary’s authority and responsibil-
ity” to maintain a list of federally recognized tribes. 60 Fed.
Reg. 9251. Hence, ANCs remained off the list.
To accept respondents’ argument, then, the Court would
need to cross-reference ISDA’s definition of an “Indian
Cite as: 594 U. S. ____ (2021) 17
Opinion of the Court
tribe” with the Secretary’s list, but ignore why ANCs were
excluded from that list in the first place. The Court declines
to take that doubtful step.
Despite asking the Court to consider post-ISDA statutes
to determine whether ANCs are “Indian tribes” under
ISDA, moreover, respondents largely fail to address post-
ISDA congressional actions that contradict their position.
First, consider Congress’ treatment of the Cook Inlet Re-
gion, Inc. (CIRI), the regional ANC for the ANCSA region
covering more than half the Alaskan population. See The
Twelve Regions, ANCSA Regional Association (June 1,
2021), https://ancsaregional.com/the-twelve-regions. In
1994, CIRI contracted under ISDA through its designated
healthcare provider to offer healthcare benefits to Alaska
Natives and American Indians in Anchorage and the
Matanuska-Susitna Valley. See Cook Inlet Treaty Tribes v.
Shalala, 166 F. 3d 986, 988 (CA9 1999). A group of Alaska
Native villages sued, arguing that the Federal Government
should have first obtained their approval. Ibid.; see 25
U. S. C. §5304(l) (“[I]n any case where [an ISDA contract]
benefit[s] more than one Indian tribe, the approval of each
such Indian tribe” is required). Congress mooted the dis-
pute by passing a bill that waived ISDA’s normal tribal ap-
proval requirement for CIRI’s healthcare contracts. De-
partment of the Interior and Related Agencies
Appropriations Act, 1998, §325(a), 111 Stat. 1597–1598. In
so doing, Congress not only assumed CIRI was eligible to
enter into ISDA contracts (notwithstanding its lack of fed-
eral recognition), but actively cleared the way for it to do so.
Next, consider the Native American Housing Assistance
and Self-Determination Act of 1996 (NAHASDA), 25
U. S. C. §4101 et seq., which incorporates ISDA’s “Indian
tribe” definition, see §4103(13)(B). NAHASDA creates a
housing block grant program for Indian tribes. §4111. The
regional ANCs (acting through their designated housing
authorities) are among the largest recipients of these
18 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
grants in Alaska, receiving tens of millions of dollars each
year. See Dept. of Housing and Urban Development, FY
2020 Final [Indian Housing Block Grant] Funding by [Trib-
ally Designated Housing Entities] & Regions. For years,
Congress has passed appropriations riders requiring that
the existing recipients of NAHASDA’s housing block grants
in Alaska (including ANCs) continue to receive those
grants. See, e.g., Further Consolidated Appropriations Act,
2020, Pub. L. 116–94, Div. H, Tit. II, §211, 133 Stat. 3003.
Following the D. C. Circuit’s decision in this case, Congress
awarded additional grants under NAHASDA and empha-
sized that, “[f]or the avoidance of doubt,” the “Indian
tribe[s]” eligible for those grants “shall include Alaska na-
tive corporations established pursuant to” ANCSA. Consol-
idated Appropriations Act, 2021, Pub. L. 116–260, Div. N,
Tit. V, Subtit. A, §501(k)(2)(C), 134 Stat. 2077.
Thus, post-ISDA sources prove no more fruitful to re-
spondents than pre-ISDA ones. Even assuming the Court
should look to events after 1975, respondents cannot
cherry-pick statutes like the List Act without explaining
postenactment developments that undermine their inter-
pretation. In the end, the various statutes cited do not sup-
port respondents’ efforts to exclude ANCs from ISDA by use
of a term-of-art construction.6
C
Even if ANCs did not satisfy the recognized-as-eligible
clause, however, they would still satisfy ISDA’s definition
of an “Indian tribe.” If respondents were correct that only
a federally recognized tribe can satisfy that clause, then the
best way to read the “Indian tribe” definition as a whole
would be for the recognized-as-eligible clause not to apply
to the entities in the Alaska clause at all (i.e., to “any Alaska
——————
6 In so holding, the Court does not decide whether the language of the
recognized-as-eligible clause has been used as a term of art in other stat-
utes subsequent to ISDA’s enactment.
Cite as: 594 U. S. ____ (2021) 19
Opinion of the Court
Native village or regional or village corporation,” 25 U. S. C.
§5304(e)). On this reading, the way to tell whether a tribe,
band, nation, or other organized group or community is an
“Indian tribe” is to ask whether it is federally recognized,
but the way to tell whether an Alaska Native village or cor-
poration is an “Indian tribe” is to ask whether it is “defined
in or established pursuant to” ANCSA. Ibid. Otherwise,
despite being prominently “includ[ed]” in the “Indian tribe”
definition, ibid., all ANCs would be excluded by a federal-
recognition requirement there is no reasonable prospect
they could ever satisfy.
Respondents object (and the dissent agrees) that this con-
struction “produces grammatical incoherence.” Brief for
Respondents Confederated Tribes of Chehalis Reservation
et al. 16; post, at 4–5. They point out that a modifying
clause at the end of a list (like the recognized-as-eligible
clause) often applies to every item in the list. See, e.g.,
Jama v. Immigration and Customs Enforcement, 543
U. S. 335, 344, n. 4 (2005). The so-called series-qualifier
canon can be a helpful interpretive tool, and it supports the
idea that the recognized-as-eligible clause applies to every
type of entity listed in the “Indian tribe” definition, includ-
ing ANCs. Given that the entities in the Alaska clause are
the closest in proximity to the recognized-as-eligible clause,
that canon arguably applies with particular force here.
As the Court reiterated earlier this Term, however, the
series-qualifier canon gives way when it would yield a “con-
textually implausible outcome.” Facebook, Inc. v. Duguid,
592 U. S. ___, ___ (2021) (slip op., at 9); see also id., at ___
(ALITO, J., concurring in judgment) (slip op., at 1) (noting
that “[c]anons are useful tools, but it is important to keep
their limitations in mind. This may be especially true with
respect to . . . the ‘series-qualifier’ canon”). The most gram-
matical reading of a sentence in a vacuum does not always
produce the best reading in context. See, e.g., Sturgeon, 577
U. S., at 438 (“Statutory language ‘cannot be construed in a
20 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
vacuum. It is a fundamental canon of statutory construc-
tion that the words of a statute must be read in their con-
text and with a view to their place in the overall statutory
scheme’ ”); cf. B. Garner, Modern English Usage 784 (4th
ed. 2016) (noting the “increasingly common” “ ‘remote rela-
tive,’ ” i.e., the practice of separating “the relative pronoun
(that, which, who) from its antecedent”).
Consider an example with the same syntax as the “Indian
tribe” definition. A restaurant advertises “50% off any
meat, vegetable, or seafood dish, including ceviche, which
is cooked.” Say a customer orders ceviche, a Peruvian spe-
cialty of raw fish marinated in citrus juice. Would she ex-
pect it to be cooked? No. Would she expect to pay full price
for it? Again, no. Under the reading recommended by the
series-qualifier canon, however, the ceviche was a red her-
ring. Even though the 50%-off sale specifically named
ceviche (and no other dish), it costs full price because it is
not cooked. That conclusion would make no sense to a rea-
sonable customer.
Like applying a “cooked” requirement to ceviche, apply-
ing a “federally recognized” requirement to ANCs is implau-
sible in context. When Congress enacted ISDA in 1975, not
a single Alaska Native village or ANC had been recognized
for a government-to-government relationship with the
United States. On respondents’ reading, then, the entire
Alaska clause originally had no effect. None of its entities
qualified as Indian tribes for purposes of ISDA, even though
the only entities expressly included in ISDA’s definition of
an “Indian tribe” are those in the Alaska clause.
The only explanation respondents offer for this highly
counterintuitive result is that Congress included Alaska
Native villages and corporations in the “Indian tribe” defi-
nition on the possibility they might one day become feder-
ally recognized. That is highly unlikely. First, the Alaska
clause would be redundant on that account. See Brief for
Respondents Confederated Tribes of Chehalis Reservation
Cite as: 594 U. S. ____ (2021) 21
Opinion of the Court
et al. 31 ([T]he Alaska [clause] is . . . best read as redun-
dant”). A federally recognized Alaska Native village or
ANC would presumably already fit into one of the pre-
existing ISDA categories of “tribe[s], band[s], nation[s], or
other organized group[s] or communit[ies].” 25 U. S. C.
§5304(e).
Second, it is quite doubtful that anyone in 1975 thought
the United States was going to recognize ANCs as sovereign
political entities. ANCs are for-profit companies incorpo-
rated under state law that Congress itself created just four
years prior to ISDA. They are not at all the type of entities
normally considered for a government-to-government rela-
tionship with the United States. Accord, 25 CFR §83.4(1994) (“The Department will not acknowledge,” i.e., feder-
ally recognize, “[a]n association, organization, corporation,
or entity of any character formed in recent times unless the
entity has only changed form by recently incorporating or
otherwise formalizing its existing politically autonomous
community”). Indeed, at the time ISDA was enacted, some
doubted whether even Alaska Native villages could be fed-
erally recognized.7
Respondents counter by pointing to certain organizations
created in Alaska in the 1930s that later became federally
recognized tribes. One such organization, the Hydaburg
Cooperative Association (HCA), was formed under the 1936
Amendment to the Indian Reorganization Act, which au-
thorized Alaska Natives groups “not heretofore recognized
as bands or tribes” to organize based on “a common bond of
occupation, or association, or residence.” Ch. 254, 49 Stat.
1250 (codified at 25 U. S. C. §5119). The HCA organized
around “a common bond of occupation in the fish industry.”
Constitution and By-Laws of the Hydaburg Cooperative As-
——————
7 That doubt was resolved in the villages’ favor in 1993. See 58 Fed.
Reg. 54365.
22 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
sociation, Alaska Preamble (1938). Decades later, the Inte-
rior Department acknowledged the HCA as a federally rec-
ognized tribe, even though it is of fairly recent vintage and
organized around a bond of occupation rather than solely
around an ancestral tribal heritage. See 58 Fed. Reg.
54369. If the HCA could be federally recognized, respond-
ents say, some might have thought ANCs could too.
Respondents make too much of the HCA and the small
handful of entities like it, which are not comparable to
ANCs. Unlike ANCs, the former entities were organized
under federally approved constitutions as part of a short-
lived attempt to recreate in Alaska a tribal reservation sys-
tem like that in the lower 48 States. ANCs, by contrast,
were incorporated under state law pursuant to legislation
that embodied the formal repudiation of that approach.
That the Interior Department deemed the HCA and a hand-
ful of other entities like it federally recognized tribes dec-
ades after ISDA’s passage does not mean it was plausible
in 1975 to think ANCs would one day become federally rec-
ognized tribes, as well.8
Ultimately, respondents resort to the argument that, alt-
hough the idea of ANCs becoming federally recognized
tribes might be farfetched, it is not technically impossible.
That is, Congress’ plenary power over Indian affairs could
——————
8 Respondents also point to a 1996 bill that would have “deemed” one
regional ANC, CIRI, “an Indian tribal entity for the purpose of federal
programs for which Indians are eligible because of their status as Indi-
ans” and would have mandated that CIRI be “specifically include[d]” “on
any list that designates federally recognized Indian tribes.” H. R. 3662,
104th Cong., 2d Sess., §§121(a)–(b) (1996). By its terms, the bill would
not have entered CIRI into a government-to-government relationship
with the United States; it merely would have made CIRI eligible for all
federal Indian programs available to federally recognized tribes. In any
event, it is hard to make too much of a failed bill. See United States v.
Craft, 535 U. S. 274, 287 (2002) (“[F]ailed legislative proposals are a par-
ticularly dangerous ground on which to rest an interpretation of a prior
statute” (internal quotation marks omitted)).
Cite as: 594 U. S. ____ (2021) 23
Opinion of the Court
conceivably permit it to recognize a government-to-
government relationship between an ANC and the United
States. Perhaps, but possibility is not the same as plausi-
bility, and both are proper concerns of statutory interpreta-
tion. Consider again the example of a restaurant advertis-
ing “50% off any meat, vegetable, or seafood dish, including
ceviche, which is cooked.” On respondents’ logic, because
the restaurant technically could cook its ceviche, the only
way to read the advertisement is that ceviche is full price
unless the restaurant takes an unexpected culinary step.
That is wrong. The best reading of the advertisement is
that ceviche is 50% off even if it is not cooked, just as the
best reading of ISDA is that ANCs are Indian tribes even if
they are not federally recognized. Any grammatical awk-
wardness involved in the recognized-as-eligible clause skip-
ping over the Alaska clause pales in comparison to the in-
congruity of forever excluding all ANCs from an “Indian
tribe” definition whose most prominent feature is that it
specifically includes them.
D
Respondents make a few final arguments to persuade the
Court that ANCs are not Indian tribes under ISDA. None
succeeds.
Respondents argue first that the ANCs misrepresent how
meaningful a role they play under ISDA because the actual
number of ISDA contracts held by ANCs is negligible. The
Court does not have the record before it to determine the
exact number and nature of ISDA contracts held by ANCs
or their designees, either historically or currently. The
point is largely irrelevant, however. No one would argue
that a federally recognized tribe was not an Indian tribe un-
der ISDA just because it had never entered into an ISDA
contract. The same is true for ANCs. To the extent re-
spondents argue that ruling for them would be of little prac-
tical consequence given the small number of ISDA contracts
24 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
held by ANCs, quantity is not the only issue. For example,
CIRI contracts through a designee to provide healthcare
to thousands of Alaska Natives in Anchorage and the
Matanuska-Susitna Valley. Brief for CIRI as Amicus Cu-
riae 9. The loss of CIRI’s ability alone to contract under
ISDA would have significant effects on the many Alaska
Natives it currently serves.9
Respondents further argue that treating ANCs as Indian
tribes would complicate the administration of ISDA. If an
ISDA contract will benefit multiple Indian tribes, each such
tribe has to agree to the contract before it can go into effect.
25 U. S. C. §5304(l). Because membership in ANCs and fed-
erally recognized tribes often overlap, respondents argue
that ANCs will be able to veto any ISDA contract sought by
a federally recognized tribe in Alaska.
Without discounting the possibility of administrative
burdens, this concern is overstated. The Executive Branch
has treated ANCs as Indian tribes for 45 years, yet respond-
ents point to no evidence of such a problem ever having
arisen. If such a problem does arise, moreover, the Interior
Department may be able to craft an administrative solu-
tion. Cf. 46 Fed. Reg. 27178, 27179 (1981) (Indian Health
Service regulations establishing an “order of precedence”
among Alaskan entities “[f]or the purposes of contracting
——————
9 Respondents argue that CIRI’s healthcare services would survive a
ruling in respondents’ favor, because CIRI’s ISDA contract is provided
for “by separate statute.” Brief for Respondents Confederated Tribes of
Chehalis Reservation et al. 52. As discussed, after CIRI entered into an
ISDA contract to provide healthcare benefits, a group of Alaskan tribes
sued. See Cook Inlet Treaty Tribes v. Shalala, 166 F. 3d 986, 988 (CA9
1999). Congress then passed a bill to moot the dispute. Department of
the Interior and Related Agencies Appropriations Act, 1998, §325(a), 111
Stat. 1597–1598. It is not entirely clear whether this bill means that
CIRI’s ISDA contract would survive a ruling that ANCs are not Indian
tribes under ISDA. But the fact that Congress intervened to ensure that
a regional ANC could more easily contract under ISDA is, if anything,
further indication that the Court’s ruling today is the correct one.
Cite as: 594 U. S. ____ (2021) 25
Opinion of the Court
under” ISDA and requiring authorizing resolutions from
“[v]illages, as the smallest tribal units under” ANCSA).
Respondents also warn that blessing ANCs’ status under
ISDA will give them ammunition to press for participation
in the many statutes besides the CARES Act that incorpo-
rate ISDA’s “Indian tribe” definition. See, e.g., Indian
Health Care Improvement Act, §4(d), 90 Stat. 1401; Native
American Housing Assistance and Self-Determination Act
of 1996, §4(12)(B), 110 Stat. 4019–4020; Indian Tribal En-
ergy Development and Self-Determination Act of 2005, [Ti-
tle V of the Energy Policy Act of 2005], §503(a), 119 Stat.
764–765.
As the Government notes, however, there may well be
statutes that incorporate ISDA’s “Indian tribe” definition
but exclude ANCs from participation in other ways. See
Brief for Federal Petitioner 33–34 (citing, e.g., 7 U. S. C.
§§1639o(2), 1639p(a)(1) (defining “Indian tribe” to incorpo-
rate the ISDA definition, but also requiring participants to
exercise “ ‘regulatory authority over . . . territory of the In-
dian tribe’ ”)). Moreover, this concern cuts both ways. If
respondents’ reading prevailed, ANCs would presumably be
excluded from all other statutes incorporating ISDA’s defi-
nition, even those under which ANCs have long benefited.
That includes the Indian Tribal Energy Development and
Self-Determination Act of 2005, under which ANCs have re-
ceived millions of dollars of energy assistance. See Brief for
Federal Petitioner 33. That also includes NAHASDA,
which, as discussed, creates a housing block grant program
under which the regional ANCs are some of the biggest re-
cipients in Alaska. See supra, at 17–18. Currently, over
10,000 Alaskans live in housing units built, improved, or
managed by these regional authorities. See Brief for Asso-
ciation of Alaska Housing Authorities as Amicus Curiae 15.
All told, the Court’s decision today does not “vest ANCs
with new and untold tribal powers,” as respondents fear.
26 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
Brief for Respondents Confederated Tribes of Chehalis Res-
ervation et al. 54. It merely confirms the powers Congress
expressly afforded ANCs and that the Executive Branch
has long understood ANCs to possess.
III
Almost everyone agrees that if ANCs are Indian tribes
under ISDA, they are eligible for funding under Title V of
the CARES Act. If Congress did not want to make ANCs
eligible for CARES Act funding, its decision to incorporate
ISDA’s “Indian tribe” definition into the CARES Act would
be inexplicable. Had Congress wished to limit CARES Act
funding to federally recognized tribes, it could simply have
cross-referenced the List Act instead, as it had in numerous
statutes before.10 Instead, Congress invoked a definition
that expressly includes ANCs (and has been understood for
decades to include them). Today’s ruling merely gives effect
to that decision.
Nevertheless, the Ute Indian Tribe of the Uintah and
Ouray Reservation argues that the CARES Act excludes
ANCs regardless of whether they are Indian tribes under
ISDA. Recall that the CARES Act allocates money to
“Tribal governments.” 42 U. S. C. §801(a)(2)(B). A “Tribal
government” is “the recognized governing body of an Indian
tribe.” §801(g)(5). According to the Utes, ANCs do not have
a “recognized governing body” because that term applies to
the governing body of a federally recognized tribe alone.
As the Utes implicitly acknowledge, however, federal
recognition is usually discussed in relation to tribes, not
their governing bodies. Brief for Respondent Ute Indian
——————
10 See, e.g., Indian Arts and Crafts Amendments Act of 2010,
§203(a)(2), 124 Stat. 2263 (“The term ‘Indian tribe’ has the meaning
given the term in section 102 of the Federally Recognized Indian Tribe
List Act of 1994”); Helping Expedite and Advance Responsible Tribal
Home Ownership Act of 2012, §2, 126 Stat. 1150 (same); Deadbeat Par-
ents Punishment Act of 1998, §2, 112 Stat. 619 (same).
Cite as: 594 U. S. ____ (2021) 27
Opinion of the Court
Tribe of the Uintah and Ouray Reservation 13 (“The recog-
nized relationship is a political relationship between the
United States and the tribe”); see also, e.g., note following
25 U. S. C. §5130, p. 678 (“ ‘[T]he United States has a trust
responsibility to recognized Indian tribes, maintains a
government-to-government relationship with those tribes,
and recognizes the sovereignty of those tribes’ ”). In addi-
tion, the CARES Act’s use of the term “recognized govern-
ing body” is borrowed from ISDA itself, which lists the “rec-
ognized governing body” of an Indian tribe as one type of
“tribal organization” empowered to contract with the gov-
ernment on the tribe’s behalf. §5304(l). In the ISDA con-
text, this term has long been understood to apply to an
ANC’s board of directors, the ANC’s governing body as a
matter of corporate law. See, e.g., App. 45 (An ANC’s “board
of directors . . . is its ‘governing body’ ”); see also Black’s Law
Dictionary, at 219 (defining “Board of Directors” as “[t]he
governing body of a private corporation”). Indeed, respond-
ents do not dispute that the plain meaning of “recognized
governing body” covers an ANC’s board of directors.11
Looking to the plain meaning of “recognized governing
body” makes even more sense because nothing in either the
CARES Act or ISDA suggests that the term “recognized
governing body” places additional limits on the kinds of In-
dian tribes eligible to benefit under the statutes. In both
laws, the term instead pinpoints the particular entity that
will receive funding on behalf of an Indian tribe. See 42
U. S. C. §801(g)(5); 25 U. S. C. §5304(l). 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.
——————
11 The Utes rely also on Seldovia Native Assn., Inc. v. Lujan, 904 F. 2d
1335 (CA9 1990). Seldovia never discussed the term “recognized govern-
ing body” and concerned whether ANCs are Indian tribes for purposes of
Circuit precedent construing the Eleventh Amendment. Id., at 1350.
28 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
Opinion of the Court
IV
The Court today affirms what the Federal Government
has maintained for almost half a century: ANCs are Indian
tribes under ISDA. For that reason, they are Indian tribes
under the CARES Act and eligible for Title V funding. The
judgment of the Court of Appeals for the District of Colum-
bia Circuit is reversed, and the cases are remanded for fur-
ther proceedings consistent with this opinion.
It is so ordered.
Cite as: 594 U. S. ____ (2021) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–543 and 20–544
_________________
JANET L. YELLEN, SECRETARY OF THE
TREASURY, PETITIONER
20–543 v.
CONFEDERATED TRIBES OF THE CHEHALIS
RESERVATION, ET AL.
ALASKA NATIVE VILLAGE CORPORATION
ASSOCIATION, INC., ET AL., PETITIONERS
20–544 v.
CONFEDERATED TRIBES OF THE CHEHALIS
RESERVATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 25, 2021]
JUSTICE GORSUCH, with whom JUSTICE THOMAS and
JUSTICE KAGAN join, dissenting.
The Coronavirus Aid, Relief, and Economic Security Act
(CARES Act) directed trillions of dollars to various recipi-
ents across the Nation to help them address the COVID–19
pandemic. Our case focuses on $8 billion Congress set aside
for “Tribal governments.” The question we must answer is
whether Alaska’s for-profit Alaska Native Corporations
(ANCs) qualify as “Tribal governments.” If they do, they
may receive approximately $450 million of the earmarked
funds; if not, the money will go to tribes across the country.
The Court of Appeals for the District of Columbia Circuit
wrote a thoughtful and unanimous opinion holding that
ANCs are not “Tribal governments.” Today, the Court dis-
2 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
GORSUCH, J., dissenting
agrees, providing two competing theories for its result. Re-
spectfully, I find neither persuasive and would affirm.
I
The Alaska Native Claims Settlement Act of 1971
(ANCSA) sought to “settle all land claims by Alaska Na-
tives” by “transfer[ring] $962.5 million in state and federal
funds and approximately 44 million acres of Alaska land to
state-chartered private business corporations” in which
Alaska Natives were given shares. Alaska v. Native Village
of Venetie Tribal Government, 522 U. S. 520, 523–524
(1998); 43 U. S. C. §1601 et seq. In particular, ANCSA es-
tablished over 200 “Village Corporations” and 12 “Regional
Corporations.” §§1602, 1606. The Village Corporations
were created to hold and manage “lands, property, funds,
and other rights and assets for and on behalf of a Native
village.” §1602(j). Meanwhile, shares in the Regional Cor-
porations went to individuals across many different tribes
and villages. §§1604, 1606(g)(1)(A). These corporations re-
ceived most of the settlement funds and lands Congress pro-
vided, assets they use to “conduct business for profit.”
§§1606(d), 1610–1613; see also Brief for Federal Petitioner
5. Today, ANCs are involved in oil and gas, mining, mili-
tary contracting, real estate, construction, communications
and media, engineering, plastics, timber, and aerospace
manufacturing, among other things. GAO, Report to Con-
gressional Requesters, Regional Alaska Native Corpora-
tions: Status 40 Years After Establishment, and Future
Considerations (GAO–13–121, Dec. 2012). “In fiscal year
2017, ANCs had a combined net revenue of $9.1 billion.”
Confederated Tribes of Chehalis Reservation v. Mnuchin,
456 F. Supp. 3d 152, 157 (DC 2020).
Everyone agrees that ANCs are entitled to some CARES
Act relief. Already, they have received benefits Congress
allocated to corporations, like the Paycheck Protection Pro-
gram. See Brief for Respondent Ute Indian Tribe of Uintah
Cite as: 594 U. S. ____ (2021) 3
GORSUCH, J., dissenting
and Ouray Reservation 1 (Brief for Respondent Ute Tribe).
Congress also accounted for ANC shareholders, and all
Alaskans, when it directed over $2 billion to the State. In
fact, Alaska received more money per capita than all but
two other States. Id., at 3; Congressional Research Service,
General State and Local Fiscal Assistance and COVID–19:
Background and Available Data (Feb. 8, 2021). The Alaska
Native Villages received hundreds of millions of those dol-
lars because everyone agrees they qualify as tribal govern-
ments for purposes of the CARES Act. See ibid. This suit
concerns only the ANCs’ claim of entitlement to additional
funds statutorily reserved for “Tribal governments.” 42
U. S. C. §801(a)(2)(B). If that counterintuitive proposition
holds true, ANCs will receive approximately $450 million
that would otherwise find its way to recognized tribal gov-
ernments across the country, including Alaska’s several
hundred Native Villages. See Letter from E. Prelogar, Act-
ing Solicitor General, to S. Harris, Clerk of Court (May 12,
2021).
In the CARES Act, Congress defined a “Tribal govern-
ment” as the “recognized governing body of an Indian
Tribe.” §801(g)(5). In turn, Congress specified in §801(g)(1)
that the term “Indian Tribe” should carry here the same
meaning that it bears in the Indian Self-Determination and
Education Assistance Act of 1975 (ISDA). The relevant por-
tion of that statute provides as follows:
“ ‘Indian tribe’ [or ‘Indian Tribe’] means any Indian
tribe, band, nation, or other organized group or commu-
nity, including any Alaska Native village or regional or
village corporation as defined in or established pursu-
ant to the Alaska Native Claims Settlement Act (85
Stat. 688) [43 U. S. C. 1601 et. seq.], which is recog-
nized 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).
4 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
GORSUCH, J., dissenting
The question before us thus becomes whether ANCs
count as “Indian tribes” under the longstanding terms Con-
gress adopted in ISDA almost 50 years ago. To resolve that
dispositive question, we must answer two subsidiary ones:
(1) Does the statute’s final clause (call it the recognition
clause) apply to the ANCs listed earlier? (2) If so, are ANCs
“recognized as eligible for the special programs and services
provided by the United States to Indians because of their
status as Indians”? In my view, the recognition clause does
apply to ANCs along with the other listed entities. And
ANCs are not “recognized” as tribes eligible for the special
programs and services provided by the United States to In-
dians because of their status as Indians.
II
A
Start with the question whether the recognition clause
applies to the ANCs. As the nearest referent and part of an
integrated list of other modified terms, ANCs must be sub-
ject to its terms. Unsurprisingly, the Court of Appeals
reached this conclusion unanimously. Lawyers often de-
bate whether a clause at the end of a series modifies the
entire list or only the last antecedent. E.g., Lockhart v.
United States, 577 U. S. 347, 350–352 (2016); id., at 362–
369 (KAGAN, J., dissenting); Facebook, Inc. v. Duguid, 592
U. S. ___, ___–___ (2021) (slip op., at 5–7); id., at ___–___
(ALITO, J., concurring in judgment) (slip op., at 1–4). In
ISDA, for example, some might wonder whether the recog-
nition clause applies only to ANCs or whether it also applies
to the previously listed entities—“Indian tribe[s], band[s],
nation[s],” etc. But it would be passing strange to suggest
that the recognition clause applies to everything except the
term immediately preceding it. A clause that leaps over its
nearest referent to modify every other term would defy
grammatical gravity and common sense alike. See, e.g., Fa-
Cite as: 594 U. S. ____ (2021) 5
GORSUCH, J., dissenting
cebook, Inc., 592 U. S., at ___ (slip op., at 7); Jama v. Immi-
gration and Customs Enforcement, 543 U. S. 335, 344, n. 4
(2005).
Exempting ANCs from the recognition clause would be
curious for at least two further reasons. First, the reference
to ANCs comes after the word “including.” No one disputes
that the recognition clause modifies “any Indian tribe,
band, nation, or other organized group or community.” So
if the ANCs are included within these previously listed
nouns—as the statute says they are—it’s hard to see how
they might nonetheless evade the recognition clause. Sec-
ond, in the proceedings below it was undisputed that the
recognition clause modifies the term “Alaska Native vil-
lage[s],” even as the ANCs argued that the clause does not
modify the term “Alaska Native . . . regional or village cor-
poration.” Confederated Tribes of Chehalis Reservation v.
Mnuchin, 976 F. 3d 15, 23 (CADC 2020); Brief for Federal
Petitioner 46. But to believe that, one would have to sup-
pose the recognition clause skips over only half its nearest
antecedent. How the clause might do that mystifies. See
Facebook, 592 U. S., at ___ (slip op., at 6) (“It would be odd
to apply the modifier . . . to only a portion of this cohesive
preceding clause”).
At least initially, the Court accepts the obvious and con-
cedes that the recognition clause modifies everything in the
list that precedes it. Ante, at 8. But this leaves the Court
in a bind. If the recognition clause applies to ANCs, then
ANCs must be “recognized” in order to receive funds. And
“recognition” is a formal concept in Indian law: “Federal
acknowledgement or recognition of an Indian group’s legal
status as a tribe is a formal political act confirming the
tribe’s existence as a distinct political society, and institu-
tionalizing the government-to-government relationship be-
tween the tribe and the federal government.” 1 F. Cohen,
Handbook of Federal Indian Law §3.02[3], pp. 133–134 (N.
Newton ed. 2012); see also id., §3.02[2], at 132–133. No one
6 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
GORSUCH, J., dissenting
contends that ANCs are recognized by the federal govern-
ment in this sense.
Admittedly, not every statutory use of the word “recog-
nized” must carry the same meaning. See ante, at 14. But
not only does ISDA arise in the field of Indian law where
the term “recognition” has long carried a particular mean-
ing. The statute proceeds to refer to groups that are “rec-
ognized as eligible for the special programs and services
provided by the United States to Indians because of their
status as Indians.” This full phrase is a mouthful, but it
was a familiar one to Congress by the time it passed ISDA
in 1975. In preceding decades, Congress used similar lan-
guage in statute after statute granting and terminating for-
mal federal recognition of certain tribes.1 All of which
strongly suggests that ISDA’s recognition clause likewise
refers to the sort of formal government-to-government
recognition that triggers eligibility for the full “panoply of
benefits and services” the federal government provides to
——————
1 E.g., Act of Sept. 21, 1959, §5, 73 Stat. 593 (upon termination, the
former Tribe and its members “shall not be entitled to any of the special
services performed by the United States for Indians because of their sta-
tus as Indians”); Act of Aug. 23, 1954, §2, 68 Stat. 769 (same); Act of Aug.
18, 1958, §10(b), 72 Stat. 621 (same); Act of Sept. 5, 1962, §10, 76 Stat.
431 (same); Act of Apr. 12, 1968, Pub. L. 90–287, §2, 82 Stat. 93 (“Nothing
in this Act shall make such tribe or its members eligible for any services
performed by the United States for Indians because of their status as
Indians”); Menominee Restoration Act, Pub. L. 93–197, 87 Stat. 770 (An
Act “to reinstitute the Menominee Indian Tribe of Wisconsin as a feder-
ally recognized sovereign Indian tribe; and to restore to the Menominee
Tribe of Wisconsin those Federal services furnished to American Indians
because of their status as American Indians”). This sort of language also
appeared in recognition statutes in the years immediately following
ISDA. E.g., Indian Tribal Restoration Act, §4, 92 Stat. 247 (Tribes and
their members “shall be entitled to participate in the programs and ser-
vices provided by the United States to Indians because of their status as
Indians”); Siletz Indian Tribe Restoration Act, §3(a), 91 Stat. 1415 (rein-
stating eligibility for “all Federal services and benefits furnished to fed-
erally recognized Indian tribes”); Paiute Indian Tribe of Utah Restora-
tion Act, §3a, 94 Stat. 317 (same).
Cite as: 594 U. S. ____ (2021) 7
GORSUCH, J., dissenting
Indians. 1 Cohen, Handbook of Federal Indian Law
§3.02[3], at 134.
There is more evidence too. When Congress passed
ISDA, it sought to provide Indians “meaningful leadership
roles” that are “crucial to the realization of self-
government.” 25 U. S. C. §5301. Accordingly, “tribes may
enter into ‘self-determination contracts’ with federal agen-
cies to take control of a variety of federally funded pro-
grams.” Menominee Tribe of Wis. v. United States, 577 U. S.
250, 252 (2016); see also §5321. Handing over federal gov-
ernment programs to tribal governments in order to facili-
tate self-government is precisely the sort of government-to-
government activity that aligns with formal recognition.
See also §§5384, 5385 (reflecting later amendments to
ISDA) (instructing the Secretary to enter compacts and
funding agreements “with each Indian tribe participating
in self-governance in a manner consistent with the Federal
Government’s trust responsibility, treaty obligations, and
the government-to-government relationship between In-
dian tribes and the United States”).
The CARES Act itself offers still further clues. In the
provision at issue before us, Congress appropriated money
“for making payments to States, Tribal governments, and
units of local government.” 42 U. S. C. §801(a)(1). Includ-
ing 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. Recall, as well, that the CARES Act defines tribal
governments as the “recognized governing body of an In-
dian Tribe.” §801(g)(5). ANCs, like most corporations, have
a board of directors, 43 U. S. C. §1606(f ), and a corporate
board may well be the governing body of an enterprise. But
they do not govern any people or direct any government.
8 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
GORSUCH, J., dissenting
B
While initially acknowledging that the recognition clause
applies to ANCs, the Court interprets its terms differently.
Rather than understanding it as denoting a government-to-
government relationship, the Court says, we should look to
its “plain meaning.” Ante, at 7. But even if we could some-
how set aside everything we know about how the term is
used in Indian law and the CARES Act itself, it’s far from
clear what “plain meaning” the Court alludes to or how
ANCs might fall within it.
First, consider the Federally Recognized Indian Tribe
List Act of 1994 (List Act). The List Act instructs the Sec-
retary of the Interior to keep a list of all federally recognized
Indian tribes. It does so using language materially identi-
cal to that found in ISDA’s recognition clause: “The Secre-
tary shall publish in the Federal Register a list of all Indian
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). No one before us thinks the Secretary of
the Interior should list the ANCs as federally recognized
tribes. And given that, it is unclear how ANCs might count
as federally recognized tribes under ISDA. To be sure, the
List Act came after ISDA. But the Court never attempts to
explain how the plain meaning of nearly identical language
in remarkably similar legal contexts might nevertheless
differ.
Second, on any account, ISDA requires an Indian tribe or
group to be “recognized.” But what work does this term do
on the Court’s interpretation? Without explanation, the
Court asserts that ANCs are “ ‘recognized as eligible’ for
ANCSA’s benefits” because they are “ ‘established pursuant
to’ ANCSA.” Ante, at 8. But on this understanding, any
group eligible for benefits would seem, on that basis alone,
to be “recognized” as eligible for those benefits. The Court’s
Cite as: 594 U. S. ____ (2021) 9
GORSUCH, J., dissenting
reading comes perilously close to rendering the term “rec-
ognized” surplusage: If ISDA really does capture any group
merely “eligible” for federal benefits, why not just say that
and avoid introducing a term with a particular and well-
established meaning in federal Indian law?
Third, even putting aside the recognition requirement,
ISDA says tribes must receive services from the United
States “because of their status as Indians.” §5304(e). The
Court says that ANSCA made ANCs eligible for settlement
funds and lands because its shareholders are Alaska Na-
tives. Ante, at 8. But is compensation provided to profit-
maximizing corporations whose shareholders happen to be
Alaska Natives (at least initially, see 43 U. S. C.
§§1606(h)(1), 1629c) a benefit provided to Indians? And
were ANSCA settlement funds provided to ANCs and their
shareholders because of their Indian status or simply be-
cause Congress wanted to resolve a land dispute regardless
of the claimants’ status? See §1601(b) (“[T]he settlement
should be accomplished . . . without establishing any per-
manent racially defined institutions, rights, privileges, or
obligations . . . ”); but see §1626(e)(1) (“For all purposes of
Federal law, a Native Corporation shall be considered to be
a corporation owned and controlled by Natives . . . ”).
Again, the answers remain unclear. Ante, at 8–9.
Finally, ISDA provides that tribes must be recognized as
eligible for “the special programs and services provided by
the United States.” 25 U. S. C. §5304(e) (emphasis added).
It is a small word to be sure, but “the” suggests the statute
refers to a particular slate of programs and services—here
the full panoply of federal Indian benefits—not just any spe-
cial programs and services the government might supply.
See Nielsen v. Preap, 586 U. S. ___, ___ (2019) (slip op., at
14) (“[G]rammar and usage establish that ‘the’ is ‘a function
word . . . indicat[ing] that a following noun or noun equiva-
lent is definite or has been previously specified by context’ ”
(quoting Merriam-Webster’s Collegiate Dictionary 1294
10 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
GORSUCH, J., dissenting
(11th ed. 2005))). It’s undisputed too that, while ANSCA
provided certain compensation to ANCs, Congress has
never made those entities “eligible for the full range of fed-
eral services and benefits available to [recognized] Indian
tribes.” Brief for Federal Petitioner 48.
Rather than confront this last problem, the Court elides
it. In its opinion “the special programs and services” be-
comes “federal Indian programs and services,” ante, at 10,
14. Nor, even if one were to (re)interpret “the special pro-
grams” as “some special programs,” is it clear whether
ANCSA qualifies. See ante, at 10. On what account is set-
tling a dispute over land title a “program” or “service”? See
43 U. S. C. §1626(a) (“The payments and grants authorized
under this chapter constitute compensation for the extin-
guishment of claims to land, and shall not be deemed to
substitute for any governmental programs otherwise avail-
able to the Native people of Alaska”). Beyond even that,
ANCSA extended specific compensation to ANCs—money
and title—in exchange for settling land claims. ANCSA
provided ANCs nothing in the way of health, education, eco-
nomic, and social services of the sort that ISDA allows
tribes to contract with the federal government to provide.
The Court’s reply creates another anomaly too. If receiv-
ing any federal money really is enough to satisfy the recog-
nition clause, many other Indian groups might now sud-
denly qualify as tribes under the CARES Act, ISDA, and
other federal statutes. 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. GAO, Indian Issues:
Federal Funding for Non-Federally Recognized Tribes
(GAO–12–348, Apr. 2012). This number does not include
additional entities that may have received federal benefits
in the form of loans, procurement contracts, tax expendi-
tures, or amounts received by individual members. Id., at
35. And still other groups may have federal rights secured
Cite as: 594 U. S. ____ (2021) 11
GORSUCH, J., dissenting
by treaty, which may exist even if the tribe is no longer rec-
ognized. Cf. Menominee Tribe v. United States, 391 U. S.
404, 412–413 (1968). How does the Court solve this prob-
lem? With an ipse dixit. See ante, at 11 (“[T]he Court does
not open the door to other Indian groups that have not been
federally recognized becoming Indian tribes under ISDA”).
The Court’s “plain meaning” argument thus becomes trans-
parent for what it is—a bare assertion that the recognition
clause carries a different meaning when applied to ANCs
than when applied to anyone else.
III
With its first theory facing so many problems, the Court
offers a backup. Now the Court suggests that ANCs qualify
as tribes even if they fail to satisfy the recognition clause.
Ante, at 18. Because ISDA’s opening list of entities specifi-
cally includes ANCs, the Court reasons, the recognition
clause must be read as inapplicable to them alone. Essen-
tially, the Court quietly takes us full circle to the beginning
of the case—endorsing an admittedly ungrammatical read-
ing of the statute in order to avoid what it calls the “implau-
sible” result that ANCs might be included in ISDA’s first
clause only to be excluded by its second. Ante, at 20.
But it is difficult to see anything “implausible” about that
result. When Congress adopted ANSCA in 1971, it “created
over 200 new legal entities that overlapped with existing
tribes and tribal nonprofit service organizations.” Brief for
Professors and Historians as Amici Curiae 27. At that time,
there was no List Act or statutory criteria for formal recog-
nition. Instead, as the Court of Appeals ably documented,
confusion reigned about whether and which Alaskan enti-
ties ultimately might be recognized as tribes. 976 F. 3d, at
18; see also Brief for Professors and Historians as Amici
Curiae 28; Cohen, Handbook of Federal Indian Law 270–
271 (1941). When Congress adopted ISDA just four years
later, it sought to account for this uncertainty. The statute
12 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
GORSUCH, J., dissenting
listed three kinds of Alaskan entities: Alaska Native Vil-
lages, Village Corporations, and Regional Corporations.
And the law did “meaningful work by extending ISDA’s def-
inition of Indian tribes” to whichever among them “ulti-
mately were recognized.” 976 F. 3d, at 26. It is perfectly
plausible to think Congress chose to account for uncertainty
in this way; Congress often adopts statutes whose applica-
tion depends on future contingencies. E.g., Gundy v. United
States, 588 U. S. ___, ___–___ (2019) (GORSUCH, J., dissent-
ing) (slip op., at 11–12) (citing examples).
Further aspects of Alaskan history confirm this under-
standing. Over time, the vast majority of Alaska Native
Villages went on to seek—and win—formal federal recogni-
tion as Indian tribes. See 86 Fed. Reg. 7557–7558 (2021);
Brief for Respondent Confederated Tribes of Chehalis Res-
ervation et al. 23. (It’s this recognition which makes them
indisputably eligible for CARES Act relief. See supra, at 2.)
By the time it enacted ISDA, too, Congress had already au-
thorized certain Alaska Native groups to organize based on
“a common bond of occupation, or association, or residence.”
25 U. S. C. §5119. This standard, which did not require pre-
vious recognition as “bands or tribes,” was unique to
Alaska. See ibid. And at least one such entity—the
Hydaburg Cooperative Association, organized around the
fish industry—also went on to receive federal tribal recog-
nition in the 1990s. 86 Fed. Reg. 7558; see also Brief for
Respondent Confederated Tribes of Chehalis Reservation
et al. 35–36. Though short lived and not a full
government-to-government political recognition, the Secre-
tary of the Interior at one point even listed ANCs as “ ‘In-
dian Entities Recognized and Eligible To Receive Services
From the United States Bureau of Indian Affairs,’ ” before
eventually removing them. Ante, at 15–16. And in 1996,
Congress considered a bill that would have “deemed” a par-
ticular ANC—the Cook Inlet Region, Inc.—“an Indian
tribal entity for the purpose of federal programs for which
Cite as: 594 U. S. ____ (2021) 13
GORSUCH, J., dissenting
Indians are eligible because of their status as Indians” and
required that it be included on “any list that designates fed-
erally recognized Indian tribes.” H. R. 3662, 104th Cong.,
2d Sess., §121. Of course, the ANCs before us currently are
not recognized as tribes. But all this history illustrates why
it is hardly implausible to suppose that a rational Congress
in 1975 might have wished to account for the possibility
that some of the Alaskan entities listed in ISDA might go
on to win recognition.
The particular statutory structure Congress employed in
ISDA was perfectly ordinary too. Often Congress begins by
listing a broad universe of potentially affected parties fol-
lowed by limiting principles. Take this example from the
CARES Act. Congress afforded benefits to certain “ ‘unit[s]
of local government,’ ” and defined that term to mean “a
county, municipality, town, township, village, parish, bor-
ough, or other unit of general government below the State
level with a population that exceeds 500,000.” 42 U. S. C.
§801(g)(2). The litigants tell us no parish in the country
today has a population exceeding half a million. See Brief
for Respondent Ute Tribe 31. Suppose they’re right. Is that
any basis for throwing out the population limitation and
suddenly including all parishes? Of course not. Once more,
an opening list provides the full field of entities that may be
eligible for relief and the concluding clause does the more
precise work of winnowing it down. The clauses work in
harmony, not at cross-purposes.2
——————
2 To support its implausibility argument, the Court proposes a hypo-
thetical advertisement for “ ‘50% off any meat, vegetable, or seafood dish,
including ceviche, which is cooked.’ ” Ante, at 20. The Court posits that
any reasonable customer would expect a discount even on uncooked
ceviche. It’s a colorful example, but one far afield from Indian law and
the technical statutory definitions before us. Even taken on its own
terms, too, the example is a bit underdone. A reasonable customer might
notice some tension in the advertisement, but there are many plausible
takeaways. Maybe the restaurant uses heat to cook its ceviche—many
chefs “lightly poach lobster, shrimp, octopus or mussels before using
14 YELLEN v. CONFEDERATED TRIBES OF CHEHALIS
RESERVATION
GORSUCH, J., dissenting
In defense of its implausibility argument, the Court sub-
mits any other reading would yield a redundancy. Unless
ANCs are exempt from the recognition clause, the Court
suggests, Congress had no reason to mention them in the
statute’s opening clause because they already “fit into one
of the pre-existing ISDA categories,” like “ ‘tribe[s], band[s],
nation[s], or other organized group[s] or communit[ies],’ ”
ante, at 20–21 (quoting 25 U. S. C §5304(e)).
But this much is hard to see too. Admittedly, illustrative
examples of more general terms are in some sense always
redundant. See Chickasaw Nation v. United States, 534
U. S. 84, 89 (2001) (“[That] is meant simply to be illustra-
tive, hence redundant”). But Congress often uses illustra-
tive examples in its statutory work, and the practice is not
entirely pointless. As this Court has explained, illustrative
examples can help orient affected parties and courts to Con-
gress’s thinking, and often they serve to “remove any doubt”
about whether a particular listed entity is captured within
broader definitional terms. Ali v. Federal Bureau of Pris-
ons, 552 U. S. 214, 226 (2008); see also Federal Land Bank
of St. Paul v. Bismarck Lumber Co., 314 U. S. 95, 99–100
(1941); A. Scalia & B. Garner, Reading Law 176–177 (2012).
That much is certainly true here. If Congress had failed to
list ANCs in ISDA’s first clause, a dispute could have arisen
over whether these corporate entities even qualify as “In-
dian . . . organized group[s] or communit[ies].” See Brief for
Petitioners in No. 20–544, p. 5; supra, at 9 (citing 43
U. S. C. §1601(b)).
——————
them in ceviche.” See Cordle, No-Cook Dishes, St. Louis Post-Dispatch,
July 17, 2013, p. L4. Maybe the restaurant meant to speak of ceviche as
“cooked” in the sense of “fish . . . ‘cooked’ by marinating it in an acidic
dressing” like lime juice. See Bittman, Ceviche Without Fear, N. Y.
Times, Aug. 14, 2002, p. F3. Or maybe the restaurant simply listed every
dish it makes, understanding some dishes would be excluded by the con-
cluding “cooked” proviso. Even in the Court’s own hypothetical it is not
“implausible” to apply the modifier across the board.
Cite as: 594 U. S. ____ (2021) 15
GORSUCH, J., dissenting
Having said all this, my disagreement with the Court’s
“implausibility” argument is a relatively modest one. We
agree that linguistic and historical context may provide
useful interpretive guidance, and no one today seeks to sug-
gest that judges may sanitize statutes in service of their
own sensibilities about the rational and harmonious.3 In-
stead, our disagreement is simply about applying the plain
meaning, grammar, context, and canons of construction to
the particular statutory terms before us. As I see it, an or-
dinary reader would understand that the recognition clause
applies the same way to all Indian groups. And if that’s
true, there’s just no way to read the text to include ANCs
as “Tribal governments” for purposes of the CARES Act.
*
In my view, neither of the Court’s alternative theories for
reversal can do the work required of it. The recognition
clause denotes the formal recognition between the federal
government and a tribal government that triggers eligibil-
ity for the full panoply of special benefits given to Indian
tribes. Meanwhile, a fair reading of that clause indicates
that it applies to ANCs. Accordingly, with respect, I would
affirm.
——————
3 The Court does not suggest, for example, that the reading of the stat-
ute it rejects would be “absurd.” Absurdity doctrine “does not license
courts to improve statutes (or rules) substantively, so that their outcomes
accord more closely” with “ ‘what we might think is the preferred result.’ ”
Jaskolski v. Daniels, 427 F. 3d 456, 461 (CA7 2005) (Easterbrook, J. for
the court) (ellipsis omitted). At most, it may serve a linguistic function—
capturing circumstances in which a statute’s apparent meaning is so “un-
thinkable” that any reasonable reader would immediately (1) know that
it contains a “technical or ministerial” mistake, and (2) understand the
correct meaning of the text. See Lexington Ins. Co. v. Precision Drilling
Co., 830 F. 3d 1219, 1221–1223 (CA10 2016); A. Scalia & B. Garner,
Reading Law 237–238 (2012). Anything more would threaten the sepa-
ration of powers, undermine fair notice, and risk upsetting hard-earned
legislative compromises. Ibid; see also Virginia Uranium, Inc. v. Warren,
587 U. S. ___, ___–___ (2019) (slip op., at 15–16).