Supreme Court Sides With ANCs, Allowing ANCs to Receive CARES Act Funds

Posted on June 29, 2021

The United States Supreme Court released its long-awaited opinion in the consolidated cases of Yellen v. Confederated Tribes of the Chehalis Reservation et al. and Alaska Native Village Corp. Association et al. v.Confederated Tribes of the Chehalis Reservation et al.*

After Congress passed the CARES Act allocating $8 billion to “Tribal governments”, the dispute arosewhether ANCs represented an “Indian tribe”, as that term is defined in the Indian Self-Determination and Education Assistance Act (ISDA). 42 U.S.C. 801(a)(2)(B), (g)(5), (g)(1). The ISDA defines the term “Indian tribe” as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation . . . 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 latter clause of that definition is known as the “recognized-as-eligible clause”.

Before distributing any money, the Treasury Department set aside $500 million (later reduced to roughly $450 million) for Alaska Native Corporations (ANCs), which several federally recognized tribes—in the sovereign political sense—claimed should not go to ANCs. The respondent tribes argued that ANCs are notfederally recognized tribes in a sovereign political sense; therefore, the argument followed that ANCs should notbe recognized as eligible for programs of the United States set aside for Indians.

The Supreme Court disagreed. Justice Sotomayor penned the 6-3 majority decision, stating the plainmeaning of the definition of “Indian tribe” clearly includes ANCs. Additionally, Justice Sotomayor noted that the Alaska Native Settlement Claims Act (ANSCA)—which is expressly stated in the ISDA clause defining Indian tribe—is a special program provided by the United States to Indians because of their status as Indians.

For their part, the respondent tribes argued that the ANSCA was specifically included in the definition to exclude the ANSCA as being a special program and service provided by the United States to Indians. The Court again disagreed, stating that the intention of including the ANSCA in the clause was to specifically integrate it as a special program, not to exclude it.
At least one respondent also argued that the ANCs should not be eligible for the CARES Act in any event because the CARES Act distributes money to “Tribal governments”. The Court also dismissed thisargument because the Board of Directors of an ANC is a governing body of an ISDA-defined Indian tribe.

In short, “ANCs are Indian tribes under ISDA.” Slip op. at 28. Because ANCs qualify as Indian tribes, ANCs are now eligible to receive the roughly $450 million in funding from the CARES Act.
*Consistent with United States Supreme Court lexicon, this article uses the colloquial legal term “Indian” to
reference Native Americans.