Supreme Court ruling favoring Alaska Native Corporations has Indians asking what it means to be a tribe

A new U.S. Supreme Court ruling that says Alaska Native Corporations have the right to collect a substantial portion of the funding included in the CARES Act of 2020 has caused angst among some Natives who say the decision calls into question what it means to be a sovereign tribe in America today.

With concerns on that topic already plentiful in part because of the federal government’s control over Indian gaming since the 1980s and the ensuing per capita and disenrollment issues that have since taken place in Indian Country, some policy experts say the situation just got murkier.

The high court’s ruling, handed down June 25, said that for-profit ANCs are considered to be “Indian tribes” under the Indian Self-Determination Act (ISDA), and they therefore should receive CARES Act funding designated for tribal governments. 

The 13 regional ANCs were created in 1971 after Congress passed a land-settlement law focused on aiding Alaska Natives, called the Alaska Native Claims Settlement Act (ANCSA). 

At that time, Alaska’s federal and state lawmakers were looking for ways to financially help struggling Alaska Natives with ongoing land claims in their state, while also taking Alaska Native lands and energy resources for Alaska state interests. It worked in large part, and all sides have experienced benefits that many tribes in the Lower 48 states have not seen under the traditional federal-recognition system and federal funding process. 

In spite of the ISDA’s language going back to 1975, many federally recognized tribal governments, including those in Alaska, have never considered ANCs to be tribes, and ANCs have said that they are not sovereign entities. There are, however, 229 federally recognized tribes in the state. 

The issue came to a head after Congress and the Trump administration in 2020 offered CARES Act funding directly to ANCs, many of which are financially successful, in addition to federally recognized tribes in Alaska. The action split the pot of money for all 574 federally recognized tribes at an economically perilous time. 

The Biden administration has said it is holding approximately $450 million for ANCs out of the $8 billion total the CARES Act set aside for all tribal governments. Under the 2021 American Rescue Plan funding for tribes, Congress and the Biden administration changed the COVID-19 relief funding formulas, and these formulas do not allow ANCs to receive any of the $20 billion in the law set aside for tribal governments.

Lawsuits ensued because of the Trump-era CARES Act formula, pitting tribal governments against ANCs, which culminated in the Supreme Court decision in Yellen v. Confederated Tribes of the Chehalis Reservation, et al. 

Justice Sonia Sotomayor, appointed by President Barack Obama and who often rules in favor of tribal governmental interests, wrote the majority opinion favoring Alaska Native Corporations. She relied heavily on the ISDA’s plain language, saying that for nearly 50 years the ISDA has called ANCs “Indian tribes,” so she said that language applies to CARES Act funding as well. 

Justice Neil Gorsuch, added to the court by President Donald Trump and who also tends to favor tribal rights and sovereignty, wrote the minority opinion, joined by strange bedfellows Justices Elena Kagan and Clarence Thomas. In it, he concluded, “(T)here’s just no way to read the text to include ANCs as ‘Tribal governments’ for purposes of the CARES Act.”

Slippery slope

Some Native legal experts and tribal citizens are saying the situation reminds them of the controversial 2010 Citizens United decision by the high court’s conservative justices that ruled that corporations could be treated as people when it comes to campaign finance spending. 

In this case, a 6-3 decision that did not split along traditional Democratic and Republican ideological lines found that an Alaska Native Corporation could be treated as an Indian tribe.

“From this SCOTUS opinion, you’d never know that ‘tribes’ — whether in the Greater 48 or Alaska — are or were kinship societies,” Native-focused lawyer Gabe Galanda wrote on Twitter soon after the ruling was announced. “Are tribes now commercial entities? Are we now transactional rather than cultural or spiritual in nature? Are we slip sliding away?”

Galanda further told Tribal Business News, “I don’t rep any ANCs and have no dog in the Yellen fight. ANCSA gave birth to the federal (Bureau of Indian Affairs’) disenrollment process, circa 1975, and for that reason, I’m no fan.”

Galanda explained that he believes the disenrollment issue plaguing some American Indian tribes today actually has its roots in ANCSA-related matters. On Twitter, he pointed to historical congressional testimony related to the law in which it is plainly stated by legislators that “the Bureau of Indian Affairs proposes to disenroll some people who were perhaps erroneously enrolled in the Alaska Native enrollment.” 

The implication for Galanda is that the BIA was trying to get fewer Alaska Natives enrolled in the ANC system, and it was working on ways to accomplish that as part of the progression of the ANCSA law. The situation serves as an early example of disenrollment used as a tool by the federal government to remove Native identity, while maintaining resources for certain Native individuals over others because of profit incentives. 

Another quirk of the Supreme Court’s decision lies in the fact that tribal governments have historically gone to bat for the rights of ANCs. Former Democratic Sen. Claire McCaskill of Missouri took a thumping from tribes and tribal advocates during the Obama administration when she tried to crack down on alleged contracting abuses she thought ANCs were performing. She ultimately curbed her investigations after intense pressure from her Democratic colleagues, and ANCs felt vindicated when they prevailed.

Taking the win

Despite the weighty history, this was still a 6-3 win for Alaska Native Corporations in front of the highest court in the land, and they are justifiably celebrating — and so are the legislators who represent and sometimes benefit from their successes via campaign contributions and political support.

The ANCSA Regional Association and the Alaska Native Village Corporation Association issued a joint press release heralding the decision.

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

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

Alaska’s congressional delegation shared in the celebration. 

“(T)he U.S. Supreme Court affirmed what we knew all along — that when Congress used the definition of ‘Indian tribe’ from the Indian Self Determination and Education Assistance Act in the CARES Act, it absolutely made Alaska Native Corporations eligible for these coronavirus relief funds,” Sens. Lisa Murkowski and Dan Sullivan and Rep. Don Young all Republicans from Alaska, said in a joint statement.

“We knew this, because we wrote this language in the CARES Act,” they continued. “In addition to equitable pandemic relief, this decision ensures Alaska Natives will continue to benefit from the unique but effective delivery of health care, housing, and many other public services authorized under numerous statutes using ISDA’s definition of an Indian tribe, which the D.C. Circuit ruling threatened to destabilize.”

“Once again, the Supreme Court made it clear: Alaska is different — the exception, not the rule,” the legislators said.

Murkowski, ranking member of the U.S. Senate Committee on Indian Affairs, is currently making sure that Bryan Newland, President Joe Biden’s nominee to become the U.S. Department of the Interior’s Assistant Secretary – Indian Affairs, is particularly well-versed in Alaska Native issues before she supports him.

[RELATED: ROCKY WATERS? Murkowski highlights concerns over Newland nomination to lead BIA]

Congressman Young further told Tribal Business News in a statement that the lawsuits “have prevented ANCs from accessing the relief funds they desperately need.” 

“COVID-19 hit our Alaska Native communities hard, and the impacts have only been compounded in our remote villages by poor sanitation infrastructure and sheer geography,” Young said. “Those who do not understand the unique nature of ANCs have undermined Alaska’s COVID-19 response and put our vulnerable Native communities at risk; this obstruction ends today.”

Young also defended Interior’s former Assistant Secretary – Indian Affairs during the Trump administration over questions about her involvement in this situation.

“This entire legal battle was a true shame and caused pain for many people,” Young said. “In particular, politics and misinformation brought slanderous attacks against then-Assistant Secretary of the Interior for Indian Affairs, Tara Katuk Sweeney. She did an outstanding job at the Department of the Interior, but forces from the Lower 48, including Sen. Chuck Schumer, launched defamatory personal attacks against her in the early days of this court battle. As the first-ever Alaska Native to hold this high-ranking position, she was unfairly targeted by those who have no idea how our state operates.

“Here is the fact: The legislative text of the CARES Act was available out in the open throughout the drafting process before it went on to pass 96-0 in the Senate and by voice vote in the House. The time to express concerns over the bill was then, not weeks after its passage and enactment, and certainly not 15 months into the pandemic that necessitated this bill in the first place.”

Sovereignty focus

Despite celebrations and positive interpretations from pro-ANC quarters, bigger questions remain for Indian Country at large, although legal experts are generally saying that they don’t expect the decision to have a legal effect beyond this specific CARES Act-based situation.

The Native American Rights Fund’s Erin Dougherty Lynch told Tribal Business News that one negative ramification of the decision is that it “will take critical COVID relief money away from federally-recognized tribal governments, including the 229 tribes in Alaska and the six Alaska tribes that were plaintiffs in this case.”

“Now, a portion of the COVID relief money that Congress directed for state, federal and tribal governments will go to for-profit corporations,” lamented Dougherty Lynch, the Anchorage-based lawyer for NARF.

“However, we are heartened by the fact that the impact of this decision is limited,” she added, noting that the Congress used the Federally Recognized Indian Tribe List Act of 1994 in the ARP for its definition of a tribe, instead of the ISDA definition it used in the CARES Act. “In so doing, Congress clearly expressed its intent that COVID relief money should be directed to federally recognized tribes and their tribal consortia, not for-profit corporations.”  

“The court agreed that Alaska Native Corporations are not federally-recognized tribes and are not sovereigns,” Dougherty Lynch continued. “Today’s decision does nothing to disrupt the reality that it is Alaska’s 229 tribes that remain the seats of sovereignty. 

“It is Alaska’s 229 tribes that have the governmental responsibility to protect the well-being of their citizens and community members. It is Alaska’s 229 tribes and their tribally-controlled tribal consortia that deliver a wide array of governmental services to Alaska Natives across the state.” 

Navajo Nation President Jonathan Nez said that the case was never about coronavirus money. “Instead, it was about upholding tribal sovereignty and the status of federally-recognized tribes,” he said in a statement.

He noted that the Navajo Nation, along with 15 other tribes, argued in court that Alaska Native Corporations do not fit the definition of an “Indian tribe” in part because they are not federally-recognized tribes.

“We have a strong coalition of tribes that are disappointed in the Supreme Court’s ruling,” Nez continued. “Many tribal nations have had to fight hard over the course of many years to gain federal recognition to be eligible for programs and services that ultimately benefit our people across Indian Country. The ruling undermines federally-recognized tribes and will have consequences far beyond the allocation of CARES Act dollars, but we as federally-recognized tribes will continue to stand strong and advocate for our tribal nations.”

Nez is recommending that Congress “clarify that Alaska Native Corporations are not federally recognized tribes under the Indian Self-Determination and Education Assistance Act to avoid this issue in the future.”

Tribes outside of the Lower 48 tribes also have problems with the decision.

Mike Williams, chief of the Yupiit Nation at Akiak Native Community, told Tribal Business News that it’s an “unjust decision,” and that he’s “disappointed, but hoping that it will be just for this issue.” 

He does not want to see the idea of ANCs being Indian tribes result in limiting funds from the federal government to sovereign tribal governments in any more instances.

Williams noted that it is his tribal government, not ANCs, that is “providing services to our tribally enrolled citizens,” so the decision results in less money for his government to be able to do so.

“I hope it will not be the beginning of taking funding away from our tribal governments in the country, especially in Alaska,” he said.