Justices Open Virus Aid for Tribes to Private Alaskan Entities

Countless private groups serve Native peoples in Alaska, fueling discord within the tribes themselves about who is eligible for Covid-19 relief funding allocated by Congress.

WASHINGTON (CN) — The U.S. Supreme Court ruled 6-3 on Friday to give a piece of the federal funding pie allocated for tribes during the pandemic to private entities that serve Native populations in Alaska. 

All told, the Treasury Department earmarked $8 billion for tribal governments as part of the Coronavirus Aid, Relief, and Economic Security Act Coronavirus Aid, Relief, and Economic Security Act. Driving the lawsuit here, however, was the government's earmarking of $500 million from that amount for 229 entities known as Alaskan Native Corporations — essentially businesses that serve tribal areas and provide essential services to Alaska Native villages. 

Alaska is unique in that tribes aren’t situated on reservations, as is the case in the lower 48 states.

ANCs, as they are known, offer critical housing, education, health and economic support to Alaskan Natives who are not enrolled members of a village is not in dispute. Six Native tribes nevertheless filed suit, saying the funding allocation means they get less money than if the ANCs had been excluded. 

“ANCs are not on equal footing with tribal governments,” Riyaz Kanji, representing the Confederated Tribes of the Chehalis Reservation, told the justices at oral arguments in April.

At the hearing, Justice Neil Gorsuch signaled concern about the fallout of the court denying aid to ANCs.

“The potential ramifications would be staggering: destabilizing the entire tribal health and social services system in Alaska,” Justice Neil Gorsuch said.

Gorsuch nevertheless dissented in the 6-3 split on Friday, arguing that ANCs simply are not recognized as tribes eligible for special programs. In any case, he noted, ANCs are already entitled to some CARES Act relief.

“Our disagreement is simply about applying the plain meaning, grammar, context, and canons of construction to the particular statutory terms before us,” Gorsuch wrote, joined by Justices Clarence Thomas and Elena Kagan.

For the majority, however, the Indian Self-Determination and Education Assistance Act demands inclusion of the entities established for Alaskan Natives.

"Under the plain meaning of ISDA, ANCs are Indian tribes, regardless of whether they are also federally recognized tribes. In so holding, the court does not open the door to other Indian groups that have not been federally recognized becoming Indian tribes under ISDA," Justice Sonia Sotomayor wrote for the court.

During oral arguments, Sotomayor had asked the parties how the court could rule in a narrow way that affects only the CARES Act and not the many other laws that the case implicates. 

"Even if such groups qualify for certain federal benefits, that does not make them similarly situated to ANCs," she wrote. "ANCs are sui generis entities created by federal statute and granted an enormous amount of special federal benefits as part of a legislative experiment tailored to the unique circumstances of Alaska and recreated nowhere else. Moreover, with the exception of Alaska Native villages (which are now federally recognized), no entities other than ANCs are expressly 'includ[ed]' by name in ISDA’s 'Indian tribe' definition." (Parentheses in original.)

The Indian tribes that filed suit were concerned that a ruling for the ANCs would vest them with “new and untold tribal powers."

Sotomayor assured them in her opinion that it would not. 

“It merely confirms the powers Congress expressly afforded ANCs and that the Executive Branch has long understood ANCs to possess,” she wrote. 

Sotomayor was joined by Chief Justice John Roberts, as well as Justices Stephen Breyer, Brett Kavanaugh and Amy Coney Barrett.

Attorneys for the tribes have not responded to a request for comment, nor has a representative for Treasury Secretary Janet Yellen.

Follow Samantha Hawkins on Twitter.

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