`No. ______
`In the
`Supreme Court of the United States
`________________
`ALASKA NATIVE VILLAGE CORPORATION
`ASSOCIATION, INC., et al.,
`Petitioners,
`STEVEN T. MNUCHIN, in his official capacity as
`Secretary of U.S. Department of Treasury,
`v.
`CONFEDERATED TRIBES OF THE CHEHALIS
`RESERVATION, et al.,
`
`Respondents.
`
`
`
`________________
`On Petition for Writ of Certiorari to the
`United States Court of Appeals for the
`District of Columbia Circuit
`________________
`PETITION FOR WRIT OF CERTIORARI
`________________
`PAUL D. CLEMENT
` Counsel of Record
`ERIN E. MURPHY
`RAGAN NARESH
`MATTHEW D. ROWEN
`KIRKLAND & ELLIS LLP
`1301 Pennsylvania Ave., NW
`Washington, DC 20004
`(202) 389-5000
`paul.clement@kirkland.com
`Counsel for Petitioners
`
`
`October 21, 2020
`
`
`
`QUESTION PRESENTED
`The Indian Self-Determination and Education
`Assistance Act (ISDEAA) defines “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 the Alaska Native Claims
`Settlement Act (85 Stat. 688), 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 Congress’ express
`inclusion of “Alaska Native … regional [and] village
`corporation[s]” (ANCs) in the text, the Executive has
`long treated ANCs as “Indian tribes” under ISDEAA
`and the dozens of statutes that incorporate its
`definition. The Ninth Circuit, home to all ANCs,
`likewise has long held that ANCs are “Indian tribes”
`under ISDEAA. Thus, for decades ANCs have played
`a critical role in distributing federal benefits to Alaska
`Natives. Accordingly, when Congress earmarked $8
`billion in Title V of the CARES Act for Indian tribes
`and incorporated the ISDEAA definition, the Treasury
`Secretary quite naturally obligated part of those funds
`to ANCs. Yet in acknowledged conflict with the Ninth
`Circuit and long-settled agency practice, the decision
`below holds that ANCs do not satisfy the ISDEAA
`definition that the CARES Act incorporates.
`The question presented is:
`Whether ANCs are “Indian tribes” under ISDEAA
`and therefore are eligible for emergency-relief funds
`under Title V of the CARES Act.
`
`
`
`
`
`ii
`
`PARTIES TO THE PROCEEDING
`Petitioners, intervenor-defendants below, are the
`Alaska Native Village Corporation Association, the
`Association of ANCSA Regional Corporations
`Presidents/CEOs; Ahtna, Inc., Akiachak, Ltd., Calista
`Corporation, Kwethluk, Inc., Napaskiak, Inc., Sea
`Lion Corporation, and St. Mary’s Native Corporation.
`Respondents, plaintiffs below, are Ute Tribe of the
`Uintah and Ouray Indian Reservation, Cheyenne
`River Sioux Tribe, Oglala Sioux Tribe, Rosebud Sioux
`Tribe, Nondalton Tribal Council, Arctic Village
`Council, Native Village of Venetie Tribal Government,
`Confederated Tribes of the Chehalis Reservation,
`Tulalip Tribes, Houlton Band of Maliseet Indians,
`Akiak Native Community, Asa’carsarmiut Tribe,
`Aleut Community of St. Paul Island, Pueblo of Picuris,
`Elk Valley Rancheria California, San Carlos Apache
`Tribe, Quinault Indian Nation, and Navajo Nation.
`The defendant below is Steven Mnuchin, whom
`the plaintiffs sued in his official capacity as Secretary
`of the United States Department of the Treasury.
`
`
`
`
`
`
`
`
`
`iii
`
`CORPORATE DISCLOSURE STATEMENT
`Each petitioner certifies that it does not have a
`parent corporation and that no publicly held
`corporation owns more than ten percent of its stock.
`
`
`
`
`
`iv
`
`STATEMENT OF RELATED PROCEEDINGS
`This case arises from and is related to the
`following proceedings in the U.S. District Court for the
`District of Columbia and the U.S. Court of Appeals for
`the D.C. Circuit:
`• Ute Tribe of the Uintah and Ouray Indian
`Reservation v. Mnuchin, No. 5204 (D.C.
`Cir.), on appeal from No. 1:20-cv-01070-
`APM (D.D.C.)
`the Chehalis
`• Confederated Tribes of
`Reservation, et al. v. Mnuchin, No. 5205
`(D.C. Cir.), on appeal from No. 1:20-cv-
`01002-APM (D.D.C.)
`• Cheyenne River Sioux Tribe, et al. v.
`Mnuchin, No. 5209 (D.C. Cir.), on appeal
`from No. 1:20-cv-01059-APM (D.D.C.)
`In addition, several suits have been brought that
`do not directly relate to this case but that do (or have)
`challenge(d) the distribution of the appropriation at
`issue. Those cases are: Agua Caliente Band of
`Cahuilla Indians v. Mnuchin, No. 20-cv-1136 (D.D.C.)
`(voluntarily dismissed on July 2, 2020); Prairie Band
`Potawatomi Nation v. Mnuchin, No. 20-cv-1491
`(D.D.C.) (voluntarily dismissed on July 9, 2020),
`appeal No. 20-5171 (D.C. Cir.) (appeal voluntarily
`dismissed on July 16, 2020); and Shawnee Tribe v.
`Mnuchin, No. 20-cv-1999 (D.D.C.), appeal No. 20-526
`(D.C. Cir.) (pending). No other cases directly relate to
`this case within the meaning of Rule 14.1(b)(iii).
`
`
`
`
`
`v
`
`TABLE OF CONTENTS
`QUESTION PRESENTED .......................................... i
`PARTIES TO THE PROCEEDING ........................... ii
`CORPORATE DISCLOSURE STATEMENT ........... iii
`STATEMENT OF RELATED PROCEEDINGS ....... iv
`TABLE OF AUTHORITIES .................................... viii
`PETITION FOR WRIT OF CERTIORARI ................ 1
`OPINIONS BELOW ................................................... 2
`JURISDICTION ......................................................... 2
`CONSTITUTIONAL
`AND
`STATUTORY
`PROVISIONS INVOLVED ...................................... 3
`STATEMENT OF THE CASE ................................... 3
`A. Legal Background ........................................ 3
`B. Procedural History ..................................... 10
`REASONS FOR GRANTING THE PETITION ....... 15
`I. The Decision Below Creates An Open And
`Acknowledged Circuit Split .............................. 17
`II. The Decision Below Is Wrong ........................... 21
`A. Congress Plainly Meant What It Said
`When It Expressly “Includ[ed]” ANCs in
`ISDEAA’s Definition of “Indian Tribe” ...... 22
`B. The D.C. Circuit’s Contrary View That
`Congress Negated Its Express and
`Intentional Inclusion of ANCs via the
`Eligibility Clause Is Untenable ................. 26
`III. The Question Presented Is Exceptionally
`Important ........................................................... 34
`CONCLUSION ......................................................... 37
`
`
`
`vi
`
`APPENDIX
`Appendix A
`Opinion, United States Court of Appeals for
`the District
`of
`Columbia
`Circuit,
`Confederated Tribes of the Chehalis Rsrv. v.
`Mnuchin, No. 20-5204 (Sept. 25, 2020) ...... App-1
`Appendix B
`Order, United States Court of Appeals for the
`District of Columbia Circuit, Confederated
`Tribes of the Chehalis Rsrv. v. Mnuchin, No.
`20-5204 (Sept. 30, 2020) ............................ App-29
`Appendix C
`Order, United States Court of Appeals for the
`District of Columbia Circuit, Confederated
`Tribes of the Chehalis Rsrv. v. Mnuchin, No.
`20-5204 (Sept. 14, 2020) ............................ App-31
`Appendix D
`Memorandum Opinion, United States
`District Court for the District of Columbia,
`Confederated Tribes of the Chehalis Rsrv. v.
`Mnuchin, No. 20-cv-01002 (June 26, 2020)App-33
`Appendix E
`Memorandum Opinion & Order, United
`States District Court for the District of
`Columbia, Confederated Tribes of
`the
`Chehalis Rsrv. v. Mnuchin, No. 20-cv-01002
`(July 7, 2020) ............................................. App-80
`
`
`
`vii
`
`Appendix F
`Memorandum Opinion, United States
`District Court for the District of Columbia,
`Confederated Tribes of the Chenalis Rsrv. v.
`Mnuchin, No. 20-cv-01002 (Apr. 27, 2020) App-88
`Appendix G
`Relevant Statutory Provisions ................ App-132
`25 U.S.C. § 5304 ................................ App-132
`42 U.S.C. § 801 .................................. App-135
`43 U.S.C. § 1601 ................................ App-142
`43 U.S.C. § 1606 ................................ App-144
`43 U.S.C. § 1607 ................................ App-172
`43 U.S.C. § 1626 ................................ App-173
`
`
`
`
`
`
`viii
`
`TABLE OF AUTHORITIES
`
`Cases
`Alaska v. Native Vill. of Venetie Tribal Gov’t,
`522 U.S. 520 (1998) .................................................. 4
`Am. Fed’n of Gov’t Emps. (AFL-CIO)
`v. United States,
`195 F.Supp.2d 4 (D.D.C. 2002) ................................ 4
`Burgess v. United States,
`553 U.S. 124 (2008) ................................................ 27
`City of Houston
`v. Dep’t of Hous. & Urban Dev.,
`24 F.3d 1421 (D.C. Cir. 1994) ................................ 14
`Cook Inlet Native Ass’n v. Bowen,
`810 F.2d 1471 (9th Cir. 1987) ........................ passim
`Cook Inlet Treaty Tribes v. Shalala,
`166 F.3d 986 (9th Cir. 1999) .................................. 20
`FDIC v. Phila. Gear Corp.,
`476 U.S. 426 (1986) ................................................ 24
`Frank’s Landing Indian Cmty.
`v. Nat’l Indian Gaming Comm’n,
`918 F.3d 610 (9th Cir. 2019) .................................. 32
`Kahawaiolaa v. Norton,
`386 F.3d 1271 (9th Cir. 2004) ................................ 33
`Menominee Indian Tribe of Wis.
`v. United States,
`136 S.Ct. 750 (2016) ................................................. 6
`Metlakatla Indian Cmty. v. Egan,
`369 U.S. 45 (1962) .................................................... 3
`Nielsen v. Preap,
`139 S.Ct. 954 (2019) ............................................... 27
`
`
`
`ix
`
`Ramah Navajo Sch. Bd., Inc.
`v. Bureau of Revenue of N.M.,
`458 U.S. 832 (1982) .................................................. 6
`Rosales v. Sacramento Area Dir.,
`32 IBIA 158 (1998) ................................................. 28
`Salazar v. Ramah Navajo Chapter,
`567 U.S. 182 (2012) .................................................. 6
`Wash. Mkt. Co. v. Hoffman,
`101 U.S. 112 (1879) ................................................ 27
`Constitutional Provision
`U.S. Const. art. I, §8, cl. 3 .......................................... 3
`Statutes
`12 U.S.C. §4702(12) .................................................... 9
`16 U.S.C. §4702(9) ...................................................... 9
`20 U.S.C. §4402(5) .................................................... 11
`20 U.S.C. §7011(6) ...................................................... 9
`25 U.S.C. §1603(14) .................................................... 9
`25 U.S.C. §1801(a)(2) .................................................. 9
`25 U.S.C. §1903(8) .................................................... 11
`25 U.S.C. §2703(5)(A) ............................................... 32
`25 U.S.C. §3104 note .................................................. 9
`25 U.S.C. §3501(4) ................................................ 9, 25
`25 U.S.C. §4101(5) .................................................... 29
`25 U.S.C. §4103(13)(B) ............................................. 30
`25 U.S.C. §450f(a)(1) .................................................. 6
`25 U.S.C. §5130 ........................................................ 10
`25 U.S.C. §5304(e) ........................................ 11, 22, 26
`25 U.S.C. §5321 .......................................................... 6
`
`
`
`x
`
`25 U.S.C. §5322 .......................................................... 6
`25 U.S.C. §5384 .......................................................... 6
`34 U.S.C. §10389(3) .................................................. 11
`42 U.S.C. §5122(6) .................................................... 31
`42 U.S.C. §801(a) ................................................ 10, 14
`42 U.S.C. §801(c)(7) ............................................ 10, 11
`42 U.S.C. §801(d)(1) .................................................. 10
`42 U.S.C. §801(g) ...................................................... 11
`42 U.S.C. §9601(36) .............................................. 9, 25
`43 U.S.C. §1601 ...................................................... 3, 4
`43 U.S.C. §1601 note .................................................. 3
`43 U.S.C. §1601(b) ...................................................... 4
`43 U.S.C. §1602(b) ...................................................... 5
`43 U.S.C. §1606(a) ...................................................... 4
`43 U.S.C. §1606(d) .................................................. 4, 5
`43 U.S.C. §1606(f) ....................................................... 5
`43 U.S.C. §1606(h) ...................................................... 5
`43 U.S.C. §1602(j) ....................................................... 4
`43 U.S.C. §1606(r) ...................................................... 4
`43 U.S.C. §1607(a) ...................................................... 4
`43 U.S.C. §1626(d) .................................................... 35
`Pub. L. No. 92-203, 85 Stat. 688 (1971) ..................... 3
`Pub. L. No. 93-638, 88 Stat. 2203 (1975) ............... 6, 8
`Pub. L. No. 100-241, 101 Stat. 1788 (1988) ............. 33
`Pub. L. No. 100-472, 102 Stat. 2285 (1988) ......... 9, 24
`Pub. L. No. 103-454, 108 Stat. 4791 (1994) ............. 10
`Pub. L. No. 104-330, 110 Stat. 4016 (1996) ............. 29
`
`
`
`xi
`
`Pub. L. No. 115-325, 132 Stat. 4445 (2018) ......... 9, 25
`Regulations
`24 C.F.R. §1000.302(4) ............................................. 30
`25 C.F.R. §1000.161 .................................................... 6
`58 Fed. Reg. 54,364 (Oct. 21, 1993) ........................... 8
`Other Authorities
`H.R. 6372, 93d Cong. (1973) ................................. 7, 31
`H.R. Rep. No. 1600 (1974) .............................. 8, 23, 29
`Hearings Before the Subcommittee on Indian
`Affairs: S. 1017 and Related Bills,
`93d Cong. (May 20, 1974) ........................................ 8
`IHS, Fiscal Year (FY) 2018 Report to
`Congress on Contract Funding of Indian
`Self-Determination and Education
`Assistance Act Awards,
`https://bit.ly/2XKkNLI (last visited Oct. 20,
`2020) ................................................................... 8, 24
`S. 1017, 93d Cong. (1974) ........................................... 7
`Antonin Scalia & Bryan A. Garner,
`Reading Law: The Interpretation of Legal
`Texts (2012) ...................................................... 24, 27
`
`
`
`
`
`
`
`
`
`
`
`PETITION FOR WRIT OF CERTIORARI
`Alaska and Alaska Natives have a unique history
`that is reflected in an equally unique statute, the
`Alaska Native Claims Settlement Act of 1971
`(ANCSA). That statute eschewed reservations and
`established novel Alaska Native Corporations (ANCs)
`to receive the proceeds of a comprehensive settlement
`of Native land claims and to play an ongoing role in
`the lives of Alaska Natives. ANCs have no direct
`analog in the lives of Natives in the Lower 48. Thus,
`when Congress enacted the Indian Self-Determination
`Education and Assistance Act of 1975 (ISDEAA) to
`devolve the provision of federal services to Natives just
`a few years after ANCSA, the question arose whether
`ANCs would be included in that statute and its
`definition of “Indian tribe.” Congress answered that
`question in the affirmative by expressly including
`“any … regional or village corporation … established
`pursuant to the Alaska Native Claims Settlement Act”
`in ISDEAA’s definition of “Indian tribe.”
` The
`Executive promptly confirmed the inclusion of ANCs,
`and the Ninth Circuit, home to every ANC, affirmed
`that view in 1987. For the next 30 years, ANCs’ status
`as “Indian tribes” under ISDEAA was a fact of life for
`Alaska Natives in receiving federal services, for ANCs
`in participating in ISDEAA, and for Congress in
`defining “Indian tribe” in new federal statutes.
`Congress has incorporated ISDEAA’s ANC-inclusive
`definition of “Indian tribe” in some 60 federal statutes,
`including its recent effort to provide emergency
`pandemic relief.
`Consistent with that long-settled understanding,
`the Treasury Secretary allocated some of those relief
`
`
`
`2
`
`funds to ANCs. That decision was challenged by three
`sets of tribes, some of which contended that ISDEAA’s
`definition (and therefore the pandemic-relief funds)
`was limited to tribes formally recognized pursuant to
`the Federally Recognized Indian Tribe List Act of 1994
`(List Act), or FRTs, a category that excludes ANCs. In
`accepting that argument, the decision below upends
`the long-settled legal landscape and shatters the basic
`infrastructure of Native life in Alaska. It creates a
`clear and acknowledged conflict with the Ninth
`Circuit, rejects over 40 years of administrative
`practice, and disrupts the distribution of critical
`benefits to Alaska Natives, including healthcare and
`other services most needed in a pandemic. It also
`effectively punishes Alaska Natives for Congress’
`choice in ANCSA to eschew reservations in favor of
`innovative, but distinctly Native, entities. The
`decision is as flawed as it is disruptive and plainly
`merits this Court’s plenary review.
`OPINIONS BELOW
`The D.C. Circuit’s opinion is available at 2020 WL
`5742075 and reproduced at App.1-28. The district
`court’s summary judgment opinion is available at
`2020 WL 3489479 and reproduced at App.33-79.
`JURISDICTION
`The D.C. Circuit issued its opinion on September
`25, 2020. This Court has jurisdiction pursuant to 28
`U.S.C. §1254.
`
`
`
`3
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`The relevant provisions of ANCSA, ISDEAA, and
`the Coronavirus Aid, Relief, and Economic Security
`(CARES) Act are reproduced at App.132-77.
`STATEMENT OF THE CASE
`A. Legal Background
`1. Alaska Natives, ANCSA, and ANCs
`Congress has plenary power to regulate Indian
`affairs concerning Alaska Natives, just as it does vis-
`à-vis Native Americans in the Lower 48. See generally
`U.S. Const. art. I, §8, cl. 3. But from the very
`beginning, when Alaska was acquired from Russia in
`1867, Congress recognized that Alaska’s unique
`history and geography called for a different exercise of
`that power vis-a-vis Alaska and Alaska Natives. Most
`notable, “[t]here was never an attempt in Alaska to
`isolate Indians on reservations.” Metlakatla Indian
`Cmty. v. Egan, 369 U.S. 45, 51 (1962). But the absence
`of reservations did not mean that Alaska Natives
`lacked indigenous land claims or distinct rights (such
`as hunting and fishing rights) as Natives.
`Congress addressed those claims and the distinct
`situation of Alaska and its Natives in ANCSA, Pub. L.
`No. 92-203, 85 Stat. 688 (1971) (codified as amended
`at 43 U.S.C. §§1601-24). As with nearly all federal
`Indian
`legislation, Congress
`enacted ANCSA
`“pursuant to
`its plenary authority under the
`Constitution … to regulate Indian affairs.” 43 U.S.C.
`§1601 note. That was natural, as ANCSA was
`designed as a “fair and just settlement” of all land
`“claims by Natives … of Alaska.” Id. §1601. Yet
`
`
`
`4
`
`ANCSA broke sharply from the typical federal-Indian-
`law mold employed in the Lower 48. See Alaska v.
`Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 523-
`24 (1998). ANCSA mandated the settlement of
`indigenous land claims “with maximum participation
`by Natives,” but “without creating a reservation
`system.”
` 43 U.S.C. §1601.
` Instead, ANCSA
`established new Native entities to manage Native
`lands, administer settlement funds, and act for the
`benefit of Alaska’s Natives, mandating the creation of
`12 “regional corporations” and 200-plus “village
`corporations”
`centered
`in
`existing Native
`communities. Id. §§1606(a), (d), 1607(a).
`While these new entities were dubbed Alaska
`Native
`“corporations,” ANCs are no ordinary
`corporations.
` Whereas the typical corporation
`maximizes shareholder value for a diverse and
`constantly shifting group of shareholders, ANCs’
`prime directive is to further “the real economic and
`social needs of [Alaska] Natives,” consistent with their
`congressionally established role of administering the
`proceeds of indigenous land claims. Id. §1601(b); see
`also Am. Fed’n of Gov’t Emps. (AFL-CIO) v. United
`States, 195 F.Supp.2d 4, 21-22 (D.D.C. 2002) (ANCSA
`designates ANCs “as the vehicle used to provide
`continuing economic benefits
`in exchange
`for
`extinguished aboriginal land rights”).
`To that end, ANCSA vests village corporations
`with responsibility to act “for and on behalf of a Native
`village,” 43 U.S.C. §1602(j), and vests regional
`corporations with responsibility to “promote the
`health, education, [and] welfare” of Natives in their
`region, id. §1606(r). Congress ensured that ANCs’
`
`
`
`5
`
`leadership, as well as their mission, would be
`distinctly Native. Specifically, ANCSA required the
`incorporators of each regional corporation to be named
`by the then-existing Native association in the region,
`and requires that their management be vested in an
`elected board of directors comprised entirely of Native
`shareholders. Id. §1606(d), (f); see id. §1602(b)
`(defining “Native”). And although ANCSA permits
`non-Natives
`to
`inherit
`shares
`in
`certain
`circumstances,
`it prohibits non-Natives
`from
`exercising voting rights and sharply limits the
`benefits for which non-Natives are eligible. See id.
`§1606(h)(1)(B)-(C), (2)(C)(ii), (3)(D)(i).
`Consistent with their congressionally prescribed
`role, ANCs undertake many “functions that would
`ordinarily be performed by tribal governments” in the
`Lower 48, App.21, including everything from housing
`and healthcare services to scholarships, youth
`education, and elder care, App.27 (Henderson, J.,
`concurring). While they often work shoulder-to-
`shoulder with villages and non-profit entities, ANCs
`administer many critical services on their own,
`especially in urban areas where there are many
`Alaska Natives with an ANC-affiliation but no FRT-
`affiliation. Any understanding of Native life in Alaska
`generally, and how federal Indian benefits are
`distributed in particular, would be fundamentally
`incomplete without an appreciation of ANCs’ critical
`role.
`
`ISDEAA and its progeny
`2.
`In service of its substantial trust responsibilities,
`the federal government has long provided special
`programs and services to Indians, including Alaska
`
`
`
`6
`
`Natives. The government historically administered
`these special programs and services itself, acting
`through the Indian Health Service (IHS) and the
`Bureau of Indian Affairs (BIA). That direct-federal-
`provision model began to change “in the early 1970’s,”
`as “federal policy shifted toward encouraging the
`development
`of
`Indian-controlled
`institutions.”
`Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue of
`N.M., 458 U.S. 832, 840 (1982).
`Just four years after establishing ANCs in
`ANCSA, Congress took a key step down that road by
`enacting ISDEAA, Pub. L. No. 93-638, 88 Stat. 2203
`(1975) (codified as amended at 25 U.S.C. §§5301 et
`seq.). Congress enacted ISDEAA to “help Indian tribes
`assume responsibility for aid programs that benefit
`their members” that would otherwise be administered
`directly by the federal government. Menominee
`Indian Tribe of Wis. v. United States, 136 S.Ct. 750,
`753 (2016). “To that end, the Act directs the Secretary
`of the Interior, ‘upon the request of any Indian
`tribe … to
`enter
`into
`a
`self-determination
`contract … to plan, conduct, and administer’ health,
`education, economic, and social programs that the
`Secretary otherwise would have administered.”
`Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 186
`(2012) (alterations in original) (quoting 25 U.S.C.
`§450f(a)(1) (transferred to 25 U.S.C. §5321)). ISDEAA
`further authorizes tribes to enter into “compacts” with
`the government under which they may assume full
`funding and control over federal Indian programs. See
`25 U.S.C. §5322. An Indian tribe with an ISDEAA
`compact
`is
`in
`a
`“government-to-government
`relationship” with “the United States” as a matter of
`law. Id. §5384; see also 25 C.F.R. §1000.161.
`
`
`
`7
`
`Given that Congress had only recently established
`ANCs as part of its distinct approach to Alaska
`Natives and their land claims, the question naturally
`arose during the congressional debates over ISDEAA
`whether ANCs would be included among the “Indian
`tribes” eligible to enter into ISDEAA contracts and
`compacts. In the initial draft of the legislation,
`ISDEAA’s definition of “Indian tribe” made no explicit
`mention of ANCSA or ANCs. It instead defined
`“Indian tribe” as “an Indian tribe, band, nation, or
`Alaska Native community for which the Federal
`Government provides special programs and services
`because of its Indian identity.” H.R. 6372, 93d Cong.,
`§1 (1973). Later versions defined the term as “any
`Indian tribe, band, nation, or other organized group or
`community, including an Alaska Native village as
`defined in [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.” S. 1017, 93d Cong., §4 (1974). That
`formulation still left questions about the eligibility of
`ANCs.
`During hearings before the House Subcommittee
`on Indian Affairs, a proposal was made to eliminate
`any ambiguity on that score by amending the
`definition to expressly include ANCs. In particular,
`the definition was amended to read as follows:
`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 the Alaska Native Claims
`Settlement Act (85 Stat. 688), which is
`
`
`
`8
`
`recognized as eligible for the special programs
`and services provided by the United States to
`Indians because of their status as Indians[.]
`Pub. L. No. 93-638, §4(b), 88 Stat. 2203, 2204 (1975)
`(emphasis added);
`see Hearings Before
`the
`Subcommittee on Indian Affairs: S. 1017 and Related
`Bills, 93d Cong., 2, 118 (May 20, 1974). The House
`Report explained that “[t]he Sub-committee amended
`the definition of ‘Indian tribe’ to include [the] regional
`and village corporations established by [ANCSA].”
`H.R. Rep. No. 1600 (1974). ISDEAA was ultimately
`enacted with that amended definition intact.
`Consistent with Congress’ express inclusion of
`ANCs in ISDEAA’s definition, the Executive took the
`position from the outset that ANCs are “Indian tribes”
`under ISDEAA, and it has maintained that position
`ever since. See, e.g., A137-38; 58 Fed. Reg. 54,364,
`54,366 (Oct. 21, 1993); A142-43 (2020 letter). The
`Ninth Circuit, home to every ANC, has long agreed
`with that view. See Cook Inlet Native Ass’n v. Bowen,
`810 F.2d 1471 (9th Cir. 1987). And ANCs have in fact
`entered into scores of ISDEAA contracts (and at least
`one compact), including many still in force today. See,
`e.g., IHS, Fiscal Year (FY) 2018 Report to Congress on
`Contract Funding of Indian Self-Determination and
`Awards,
`Education
`Assistance
`Act
`https://bit.ly/2XKkNLI (last visited Oct. 20, 2020)
`(listing in-force agreements).
`Congress has amended ISDEAA over the years,
`including, most notably, reenacting its definition of
`“Indian tribe” unchanged in 1988 (while adding and
`revising other ISDEAA definitions) years after the
`Executive confirmed the definition’s inclusion of ANCs
`
`
`
`9
`
`and just one year after the Ninth Circuit affirmed that
`view in Bowen. See, e.g., Pub. L. No. 100-472, 102 Stat.
`2285 (1988). Moreover, Congress has borrowed or
`cross-referenced ISDEAA’s definition of “Indian tribe”
`in upwards of 60 statutes over 45 years. See, e.g., 25
`U.S.C. §3104 note; id. §1801(a)(2); id. §1603(14); 20
`U.S.C. §7011(6); 16 U.S.C. §4702(9); 12 U.S.C.
`§4702(12). In doing so, Congress has often made clear
`in the legislative text itself that it understands that
`ANCs are “Indian tribes” under ISDEAA.
`For
`instance,
`the
`Indian Tribal Energy
`Development and Self Determination Act (ITEDSDA)
`generally provides that “[t]he term ‘Indian tribe’ has
`the meaning given the term in [ISDEAA].” 25 U.S.C.
`§3501(4)(A). But it also provides that “[f]or the
`purpose of” a few specified provisions, “the term
`‘Indian
`tribe’ does not
`include any Native
`Corporation.” Id. §3501(4)(B). That limited carve-out
`of ANCs for specified purposes makes sense only on
`the settled understanding that ANCs are Indian tribes
`under ISDEAA. More recently, Congress amended
`different provisions of that Act for the textually
`enumerated purpose of establishing a new “biomass
`demonstration project for federally recognized Indian
`tribes and Alaska Native corporations to promote
`biomass energy production.” Pub. L. No. 115-325,
`§202(a), 132 Stat. 4445, 4459 (2018) (emphasis added).
`To effectuate that purpose, Congress defined “the term
`‘Indian tribe’” to “ha[ve] the meaning given the term
`in [ISDEAA].” Id. §202(c)(1)(B), 132 Stat. at 4461.
`Other statutes expressly carve out ANCs from a
`definition that is otherwise identical to ISDEAA’s.
`See, e.g., 42 U.S.C. §9601(36). There would be no need
`
`
`
`10
`
`to carve out ANCs expressly if they would not
`otherwise be included.
`As these and other statutes reflect, Congress has
`long understood ISDEAA’s definition to include ANCs
`and has often made that understanding clear in
`statutory text. At the same time, Congress has used
`very different formulations when it seeks to limit a
`definition of “Indian tribe” to FRTs. In the List Act,
`Pub. L. No. 103-454, 108 Stat. 4791 (1994), for
`example, Congress
`formalized
`the process
`for
`recognition of tribes having sovereign status by
`referencing recognition by the Interior Secretary. 25
`U.S.C. §5130.
`B. Procedural History
`1. In response to the public health and economic
`crises wrought by the COVID-19 pandemic, Congress
`enacted the CARES Act, Pub. L. No. 116-136, 134 Stat.
`281 (2020). Title V appropriates $150 billion “for
`making payments to States, Tribal governments, and
`units of local government” to cover “necessary
`expenditures incurred due to the public health
`emergency,” and reserves $8 billion for “Tribal
`governments.” 42 U.S.C. §801(a), (d)(1). Title V
`delegated to the Treasury Secretary the authority to
`“determine[]” the “manner” of disbursals to Tribal
`governments and the responsibility “to ensure that”
`the $8 billion is “distributed to Tribal governments.”
`Id. §801(c)(7).
`Congress had many statutory definitions to
`choose from in defining “Indian Tribe” and “Tribal
`government” for purposes of Title V. Some definitions
`turn on formal recognition by the Interior Secretary.
`See 25 U.S.C. §5130(2). Others include Alaska Native
`
`
`
`11
`
`villages, but not ANCs. See, e.g., 20 U.S.C. §4402(5);
`25 U.S.C. §1903(8); 34 U.S.C. §10389(3). Eschewing
`those options, Congress expressly
`incorporated
`ISDEAA’s definition, which had long been understood
`to include ANCs.
`“Tribal
`defined
`In
`particular, Congress
`government” to “mean[] the recognized governing body
`of an Indian Tribe,” 42 U.S.C. §801(g)(5), and defined
`“Indian Tribe” to have “the meaning” it has “in section
`5304(e) of title 25”—i.e., ISDEAA. Id. §801(g)(1).
`Putting the two definitions together, Title V reserves
`$8 billion for “the recognized governing body of” “any
`Indian tribe, … 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.” Id.; 25 U.S.C. §5304(e).
`2. Consistent with the Executive’s longstanding
`interpretation of ISDEAA and Congress’ selection of a
`definition of “Indian tribe” that expressly includes
`ANCs, the Treasury Department issued guidance on
`April 23, 2020, confirming ANCs’ eligibility for Title V
`funds. A141-45. But before the Treasury Secretary
`could disburse any funds to ANCs—which by then had
`already expended considerable resources providing
`aid to Alaska Natives affected by the crisis—three sets
`of FRTs sued, challenging ANCs’ eligibility for the
`funds.
`After hearing only from the plaintiffs and the
`Secretary (but not ANCs) as parties, the district court
`entered a preliminary injunction prohibiting the
`Secretary from disbursing any Title V funds to ANCs.
`
`
`
`12
`
`A86-121. At that point, petitioners—several ANCs
`and
`the associations
`that
`represent
`them—
`successfully intervened to explain, inter alia, ANCs’
`unique role in Native life in Alaska generally and in
`distributing federal benefits to Alaska Natives in
`particular. Upon considering full briefing and a more
`complete record, the district court changed course,
`d
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