The case before the U.S. Supreme Court today involves dollars — potentially billions of them in the future: Can Alaska Native Corporations get at the CARES Act funds distributed to tribes?
Alaska Native corporations argued today that they provide their shareholders with services like health care and housing through their nonprofit entities. In their argument, the corporations included a photograph of the Covid-19 vaccine being delivered by dogsled to illustrate the role that Native corporations play in Alaska during the Covid pandemic.
Yellen v. Confederated Tribes of Chehalis Reservation, is a case that consolidates two cases involving tribal government designation with far-reaching implications beyond mere CARES Act funding, but the fundamental question the high court is answering is: Whether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the CARES Act, 42 U.S.C. 801(g)(1).
When writing the Alaska Native Claims Settlement Act, Congress was trying to avoid many of the ills that prior policymaking had created in the reservation system that exists in the Lower 48. ANCSA created corporations that compete in the business world, and indeed, many ANCSA corporations have business interests all over the world. ANCSA extinguished all Alaska Native indigenous land claims for a sum of $1 billion and 38 million acres of lands in Alaska.
An important aspect of this case is that ANCSA created two types of corporations — 13 larger regional corporations, and 200 village corporations. Alaska Natives who have certain blood quantum are shareholders in both a village an regional corporation.
Although the drafters of ANCSA thought they had settled the matter of Alaska tribal governance, that issue came up in subsequent years and in the 1990s, the federal government determined that Alaska Native villages are federally recognized tribes with some aspects of sovereignty. Today, there are 229 federally recognized tribes in Alaska.
“The settled understanding for the last 45 years has been that ANCs are eligible to be treated as Indian tribes for ISDEA (Indian Self-Determination and Education Assistance Act) purposes, even though ANCs have not, and have never been, federally recognized Indian tribes,” the corporation argued today. “That interpretation has been endorsed by all three branches of the federal government. Congress was acting against the backdrop of that settled understanding when it incorporated the ISDEA definition of Indian tribes into the CARES Act in 2020.”
Congress chose to make ANCs eligible to receive millions of dollars of coronavirus relief funds to benefit the many Alaska Natives whom they serve. “The decision below contravenes that policy judgment and threatens to shut ANCs out of a wide range of important federal programs,” the corporations argued.