Judges Argue Over Text (And Ceviche) Over Alaskan Native Societies To Be “Indian Tribes”
June 27, 2021
The Supreme Court ruled on Friday that Native Alaskan societies are “Indian tribes” under India’s Self-Determination and Educational Aid Act, making them eligible for $ 500 million federal aid against coronaviruses. While the court focused almost exclusively on the legislation, the ruling will likely have broader implications for Alaskan natives.
The case, Yellen v. Confederate tribes of the Chehalis reserve, centered on the CARES 2020 law, which set aside $ 8 billion in COVID-19 aid for “Indian tribes.” The law incorporated the definition of “Indian tribe” from the Indian Self-Determination and Educational Assistance Act 1975, which defined the tribe as follows:
any Indian tribe, band, nation or other organized group or community, including any Alaska Native village or regional or village society as defined or established under the Alaska Native Claims Resolution Act, which is recognized as eligible for special programs and services provided by the United States to Indians because of their Indian status.
During the implementation of the CARES Act, the Treasury Department determined that this definition encompassed Alaska Native Societies, which are special native-owned corporations established in 1971 by ANSAA. A number of federally recognized tribes opposed it, arguing that the companies were not eligible for funding. A unanimous DC Circuit panel sided with these tribes.
By a 6-3 vote, however, the Supreme Court disagreed and reversed, finding that Alaska Native societies, commonly known as ANC, did constitute tribes under the ISDA. Judge Sonia Sotomayor wrote on behalf of the majority. Chief Justice John Roberts and Justices Stephen Breyer, Brett Kavanaugh and Amy Coney Barrett joined in Sotomayor’s full view, while Judge Samuel Alito joined most of it.
Sotomayor considered the ANCs to be ISDA tribes for two distinct reasons. First, she concluded, “recognized” should be given its ordinary meaning, rather than being interpreted as a technical term for the official government-to-government relationship between the United States and federally recognized tribes ( which, everyone recognizes, does not include ANC). To support this argument, she pointed to a number of federal laws, including Indian laws, which use the term “recognized” in this broader sense. According to this âplain meaningâ approach, Sotomayor explained, NCAs can easily be called ârecognizedâ. After all, ANCSA itself was one of those âservicesâ that the federal government provided to Native Americans because of their Aboriginal status.
But even if the court applied an interpretation of the terms of art to recognition, Sotomayor held that the “serial qualifying canon” – a rule of statutory interpretation that applies a limitation to all of the items listed previously on a list. – should not apply. Here, she gave an example of equally inartistic writing, in which a restaurant advertised “50% off any meat, vegetable or seafood dish, including ceviche, that is cooked.” Sotomayor suggested that a customer would correctly interpret this discount to encompass ceviche, even if the dish is made with raw fish or shellfish. “Like applying a ‘cooked’ requirement to ceviche,” she continued, “applying a ‘federally recognized’ requirement to NCAs is implausible in the context.” She noted that it was unlikely – even in 1975 – that the federal government thought it never enter into a government-to-government relationship with the NCAs, making their specific inclusion in the definition meaningless as the challengers read.
Judge Neil Gorsuch dissented, joined by Justices Clarence Thomas and Elena Kagan. In his view, the term “recognized” is a formal technical term, as it pointed to laws before and after the enactment of ISDA that use virtually identical language to describe recognition. Further, he noted that it is not even clear, by the majority test, what the ordinary meaning of ‘recognized’ is: ‘Whether ISDA truly encompasses a group that is merely’ eligible ‘for federal benefits. “, He asked,” why not just say that and avoid introducing a term in the special and well-established sense into federal Indian law? “
Gorsuch was also skeptical of the majority’s efforts to avoid the serial qualifying gun. In his view, the application of recognition to ANCs is hardly implausible, indicating considerable uncertainty in Alaskan history as to the recognition status of various Native Alaskan entities after ANCSA. Congress regularly includes illustrative examples in laws, he noted, even when they may seem redundant. (In a playful footnote, Gorsuch also cited food writer Mark Bittman to note ambiguity as to whether the ceviche could, in fact, be “cooked”). But in the end, Gorsuch noted, his disagreement with the majority was “relatively modest”: the entire court adheres to textualism, he observed, even though he was divided over the appropriate outcome.
The practical effects of the decision have been largely lost in the midst of textualist debates. The majority specifically sought to limit them by crafting a narrow decision. The decision, Sotomayor said, “does not open the door to other Indian groups that have not been federally recognized and become Indian tribes under ISDA.” Moreover, even with regard to NCAs, Sotomayor pointed out that the result did not make NCAs âIndian tribesâ for the purpose of other statutes with different definitions. The decision, she said, “simply affirms what the federal government has maintained for nearly half a century.”
Yet a more precise version of the status quo appears to have been ambiguous, given the considerable conflicting evidence from past practice gathered by both sides. Now, due to the court ruling, the ANCs are unambiguously âIndian tribesâ under ISDA. Given the importance of federal-tribal contracts, especially in Alaska, this outcome will also likely have important effects that federally recognized tribes in Alaska, NCAs, and the federal government will need to understand.