Confederated Tribes of the Chehalis Reservation v. Mnuchin

976 F.3d 15

CONFEDERATED TRIBES OF THE CHEHALIS RESERVATION, et al., Appellees

Ute Tribe of the Uintah and Ouray Indian Reservation, Appellant

v.Steven T. MNUCHIN, in his official capacity as Secretary of U.S. Department of the Treasury, et al., Appellees

No. 20-5204

C/w 20-5205, 20-5209

United States Court of Appeals, District of Columbia Circuit.

Argued September 11, 2020

Decided September 25, 2020

Riyaz Kanji, Ann Arbor, MI, argued the cause for Confederated Tribes appellants. With him on the briefs were Cory Albright, Seattle, WA, Lisa Koop Gunn, Lori Bruner, Eric Dahlstrom, Santa Fe, NM, April E. Olson, Tempe, AZ, Richard W. Hughes, Reed C. Bienvenu, Bradley G. Bledsoe Downes, and Alexander B. Ritchie.

Jeffrey S. Rasmussen, Louisville, CO, argued the cause for appellants Ute Tribe of the Uintah and Ouray Indian Reservation, et al. With him on the briefs were Frances C. Bassett, Louisville, CO, Rollie E. Wilson, Washington, DC, Nicole E. Ducheneaux, Omaha, NE, Natalie A. Landreth, Anchorage, AK, Erin Dougherty Lynch, Matthew N. Newman, Wesley James Furlong, Megan R. Condon, and Jeremy J. Patterson, Louisville, CO.

Kaighn Smith, Jr., Portland, ME, was on the brief for amici curiae National Congress of American Indians, et al. in support of appellants.

Adam C. Jed, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Ethan P. Davis, Acting Assistant Attorney General, and Michael S. Raab and Daniel Tenny, Attorneys.

Paul D. Clement, Washington, DC, argued the cause for intervenor-appellees Alaska Native Village Corporation Association, Inc., et al. With him on the brief were Erin E. Murphy, Ragan Naresh, and Matthew D. Rowen, Washington, DC. Jonathan W. Katchen and Daniel W. Wolff, Washington, DC, entered appearances.

Christine V. Williams was on the brief for amici curiae U.S. Senators Lisa Murkowski, Dan Sullivan, and U.S. Congressman Don Young in support of appellees.

Allon Kedem, Ethan G. Shenkman, Washington, DC, and Janine M. Lopez were on the brief for amicus curiae Cook Inlet Region, Inc. in support of appellee.

James H. Lister, Washington, DC, was on the brief for amicus curiae Alaska Federation of Natives in support of appellees.

Before: Henderson, Millett, and Katsas, Circuit Judges.

Concurring Opinion filed by Circuit Judge Henderson.

Katsas, Circuit Judge:

Title V of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) makes certain funds available to the recognized governing bodies of any "Indian Tribe" as that term is defined in the Indian Self-Determination and Education Assistance Act (ISDA). Alaska Native Corporations are state-chartered corporations established by Congress to receive land and money provided to Alaska Natives in settlement of aboriginal land claims. We consider whether these corporations qualify as Indian Tribes under the CARES Act and ISDA.

I

A

Since the Alaska Purchase in 1867, the United States has taken shifting positions on the political status of Alaska's indigenous populations. Initially, the government thought that Alaska Natives had no distinct sovereignty. See , e.g. , In re Sah Quah , 31 F. 327, 329 (D. Alaska 1886) ("The United States has at no time recognized any tribal independence or relations among these Indians...."). Over time, it came to view Alaska Natives as "being under the guardianship and protection of the Federal Government, at least to such an extent as to bring them within the spirit, if not within the exact letter, of the laws relative to American Indians." Leasing of Lands Within Reservations Created for the Benefit of the Natives of Alaska , 49 Pub. Lands Dec. 592, 595 (1923). Those laws recognize and implement the unique trust relationship between the federal government and Indian tribes as dependent sovereigns, and the distinct obligations that relationship imposes. See , e.g. , United States v. Jicarilla Apache Nation , 564 U.S. 162, 175–76, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011). But Alaska Natives differed from other Indians in their "peculiar nontribal organization" in small, isolated villages. Op. Sol. of Interior, M-36975, 1993 WL 13801710, at *18 (Jan. 11, 1993) ("Sansonetti Op.") (quoting H.R. Rep. 74-2244, at 1–5 (1936)).

For over a century, the federal government had no settled policy on recognition of Alaska Native groups as Indian tribes. Instead, it dealt with that question "in a tentative and reactive way," with "decisions on issues concerning the relationship with Natives [being] postponed, rather than addressed." Sansonetti Op. at *2. Because of the "remote location, large size and harsh climate of Alaska," there was no pressing need "to confront questions concerning the relationship between the Native peoples of Alaska and the United States." Id. But in 1958, the Alaska Statehood Act provided for a large transfer of land from the federal government to the soon-to-be State. Pub. L. No. 85-508, § 6, 72 Stat. 339, 340–43. And in 1968, oil was discovered on Alaska's North Slope, requiring construction of a pipeline system running across the entire State. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y , 421 U.S. 240, 241–42 & n.2, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). These developments forced the federal government to confront at least the question of Native claims to aboriginal lands. See Sansonetti Op. at *43.

In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA), a "comprehensive statute designed to settle all land claims by Alaska Natives." Alaska v. Native Vill. of Venetie Tribal Gov't , 522 U.S. 520, 523, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998). Rather than set aside land for reservations, as Congress often had done in the lower 48 states, it "adopted an experimental model initially calculated to speed assimilation of Alaska Natives into corporate America." 1 Cohen's Handbook of Federal Indian Law § 4.07(3)(b)(ii)(C) (2019). Among other things, ANCSA "completely extinguished all aboriginal claims to Alaska land" and abolished all but one Native reservation in Alaska. Native Vill. of Venetie , 522 U.S. at 524, 118 S.Ct. 948. "In return, Congress authorized the transfer of $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations that were to be formed pursuant to the statute." Id.

As relevant here, ANCSA authorized the creation of two types of corporations to receive this money and land: Alaska Native Regional Corporations and Alaska Native Village Corporations, which we collectively refer to as ANCs. First, the statute divided Alaska into twelve geographic areas, each sharing a common heritage and interests, and it created a regional corporation for each area. 43 U.S.C. § 1606(a). Second, ANCSA required the Alaska Native residents of each "Native village"—defined as any community of at least twenty-five Alaska Natives, id. § 1602(c)—to organize as a village corporation to receive benefits under the statute. Id. § 1607(a). Village corporations "hold, invest, manage and/or distribute lands, property, funds, and other rights and assets for and on behalf of a Native village." Id. § 1602(j).

Like other corporations, ANCs have boards of directors and shareholders. 43 U.S.C. §§ 1606(f) – (h), 1607(c). The initial ANC shareholders were exclusively Alaska Natives; each Native received one hundred shares of the regional and village corporation operating where he or she lived. Id. §§ 1606(g)(1)(A), 1607(c). ANCSA initially prohibited the transfer of stock to non-Natives for twenty years, 43 U.S.C. § 1606(h)(1) (1971), but Congress later made the prohibition continue unless and until an ANC chose to end it, 43 U.S.C. § 1629c(a). ANCs may freely sell land to non-Natives and need not use the land "for Indian purposes." Native Vill. of Venetie , 522 U.S. at 533, 118 S.Ct. 948. Regional ANCs may provide "health, education, or welfare" benefits to Native shareholders and to shareholders’ family members who are Natives or Native descendants, without regard to share ownership. 43 U.S.C. § 1606(r).

B

In 1975, Congress enacted ISDA to "help Indian tribes assume responsibility for aid programs that benefit their members." Menominee Indian Tribe of Wis. v. United States , ––– U.S. ––––, 136 S. Ct. 750, 753, 193 L.Ed.2d 652 (2016). ISDA authorizes the federal government to contract with Indian tribes to provide various services to tribal members. Salazar v. Ramah Navajo Chapter , 567 U.S. 182, 185, 132 S.Ct. 2181, 183 L.Ed.2d 186 (2012). Under these "self-determination" contracts, the government provides money to an individual tribe, which agrees to use it to provide services to tribal members. See Menominee Indian Tribe , 136 S. Ct. at 753.

Specifically, ISDA directs the Secretary of the Interior or the Secretary of Health and Human Services, "upon the request of any Indian tribe," to contract with an appropriate "tribal organization" to provide the requested services. 25 U.S.C. § 5321(a)(1). ISDA defines an "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.

Id. § 5304(e). ISDA further defines a "tribal organization" to include "the recognized governing body of any Indian tribe." Id. § 5304(l ).

C

On March 27, 2020, Congress passed the CARES Act to provide various forms of relief from the ongoing coronavirus pandemic. Title V of the CARES Act appropriated $150 billion "for making payments to States, Tribal governments, and units of local government." 42 U.S.C. § 801(a)(1). These payments cover "necessary expenditures incurred due to the public health emergency." Id. § 801(d)(1). Congress directed the payments to be made within 30 days. Id. § 801(b)(1).

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