Confederated Tribes v. Steven Mnuchin

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2020 Decided September 25, 2020

No. 20-5204

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

Consolidated with 20-5205, 20-5209

Appeals from the United States District Court

for the District of Columbia

(No. 1:20-cv-01002)

(No. 1:20-cv-01059)

(No. 1:20-cv-01070)

Riyaz Kanji argued the cause for Confederated Tribes

appellants. With him on the briefs were Cory Albright, Lisa

Koop Gunn, Lori Bruner, Eric Dahlstrom, April E. Olson,

2

Richard W. Hughes, Reed C. Bienvenu, Bradley G. Bledsoe

Downes, and Alexander B. Ritchie.

Jeffrey S. Rasmussen 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, Rollie E. Wilson,

Nicole E. Ducheneaux, Natalie A. Landreth, Erin Dougherty

Lynch, Matthew N. Newman, Wesley James Furlong, Megan R.

Condon, and Jeremy J. Patterson.

Kaighn Smith, Jr. 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 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. Jonathan W. Katchen and Daniel W.

Wolff 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, and Janine M. Lopez

were on the brief for amicus curiae Cook Inlet Region, Inc. in

support of appellee.

James H. Lister was on the brief for amicus curiae Alaska

Federation of Natives in support of appellees.

3

Before: HENDERSON, MILLETT, and KATSAS, Circuit

Judges.

Opinion of the Court filed by Circuit Judge KATSAS.

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

4

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

(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 (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 (1998). Rather

than set aside land for reservations, as Congress often had done

in the lower 48 states, it “adopted an experimental model

5

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. “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.

6

§ 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. 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,

136 S. Ct. 750, 753 (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 (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.

7

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).

Of these funds, the CARES Act reserved $8 billion “for

making payments to Tribal governments.” 42 U.S.C.

§ 801(a)(2)(B). The CARES Act defines a “Tribal

government” as “the recognized governing body of an Indian

Tribe.” Id. § 801(g)(5). It further defines “Indian Tribe” as

bearing “the meaning given that term” in ISDA. Id.

§ 801(g)(1).

II

On April 13, 2020, the Department of the Treasury

published a form seeking tribal data to help apportion Title V

funds. The Department requested each tribe’s name,

population, land base, employees, and expenditures. The form

suggested that ANCs would receive funding. For example, in

seeking population information, the form requested the total

number of tribal citizens, members, or shareholders. On April

22, the Department confirmed its conclusion that ANCs were

eligible to receive Title V funds.

8

Between April 17 and 23, three separate groups of Indian

tribes filed lawsuits challenging that decision. Collectively, the

plaintiffs encompass six federally recognized tribes in Alaska

and twelve federally recognized tribes in the lower 48 states.

The tribes argued that ANCs are not “Indian Tribes” within the

meaning of the CARES Act or ISDA because they do not

satisfy the final requirement of the ISDA definition—i.e.,

because they are not “recognized as eligible for the special

programs and services provided by the United States to Indians

because of their status as Indians.” 23 U.S.C. § 5304(e). The

government agreed that ANCs have not been so recognized,

and it further argued that ANCs could not be so recognized.

But, the government reasoned, Congress expressly included

ANCs within the ISDA definition, and we must give effect to

that decision.

The district court consolidated the three cases and granted

a preliminary injunction prohibiting the distribution of any

Title V funds to ANCs. In finding that the tribes were likely to

succeed on the merits, the court reasoned that any “Indian

tribe” under ISDA must be “recognized” as such and that

Alaska Native corporations, unlike Alaska Native villages,

have not been so recognized. As a result of the preliminary

injunction, the government has withheld distribution of more

than $162 million in Title V funds that it otherwise would have

provided to ANCs. Several ANCs and ANC associations then

intervened as defendants.

The district court ultimately granted summary judgment to

the defendants. After further consideration, the court agreed

with the government: ANCs must qualify as Indian tribes to

give effect to their express inclusion in the ISDA definition,

even though no ANC has been recognized as an Indian tribe.

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To permit orderly review, the district court granted the

tribes’ motion for an injunction pending appeal, subject to the

tribes seeking expedition in this Court. The injunction

prohibited the distribution of Title V funds to ANCs until the

earlier of September 15 or a merits decision by this Court. We

granted expedition, heard oral argument, and extended the

injunction pending our decision.

III

The government first contends that its decision to provide

CARES Act funds to ANCs is not judicially reviewable. The

Administrative Procedure Act provides a cause of action to

persons “adversely affected or aggrieved by agency action,” 5

U.S.C. § 702, but withdraws the action to the extent that

“statutes preclude judicial review,” id. § 701(a)(1). “Whether

and to what extent a particular statute precludes judicial review

is determined not only from its express language, but also from

the structure of the statutory scheme, its objectives, its

legislative history, and the nature of the administrative action

involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345

(1984). Any preclusion must be “fairly discernible in the

statutory scheme,” id. at 351, and must appear “with sufficient

clarity to overcome the strong presumption in favor of judicial

review,” Thryv, Inc. v. Click-to-Call Techs., LP, 140 S. Ct.

1367, 1373 (2020) (quotation marks omitted).

Nothing in the CARES Act expressly precludes review of

spending decisions under Title V. Nonetheless, the

government argues that the statute precludes judicial review by

implication. It highlights three structural or contextual

considerations: the short deadline for disbursing funds, the

urgency of providing relief funds quickly, and the lack of any

requirement for advance notice of funding decisions.

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We are unpersuaded. To begin, the government cites no

case in which short statutory deadlines have been held to

preclude judicial review by implication. To the contrary, in

Dunlop v. Bachowski, 421 U.S. 560 (1975), the Supreme Court

held that judicial review was available despite a 60-day

deadline for the relevant administrative action. Id. at 563 n.2,

567. Likewise, in Texas Municipal Power Agency v. EPA, 89

F.3d 858 (D.C. Cir. 1996), we rejected a claim that “short

statutory deadlines,” combined with the need “to compile

enormous amounts of data and allocate allowances to 2,200

utilities” within the deadline, made the claim at issue

unreviewable. See id. at 864–65. The government cites Morris

v. Gressette, 432 U.S. 491 (1977), where the plaintiffs sought

to challenge an administrative failure to object to a state voting

measure under section 5 of the Voting Rights Act. But the Act

provided other means to obtain judicial review of the

underlying legal question, see id. at 504–05, and the case

involved the same kind of enforcement discretion later held to

be generally unreviewable in Heckler v. Chaney, 470 U.S. 821

(1985). The government also cites Dalton v. Specter, 511 U.S.

462 (1994), but that case turned on the fact that presidential

action is not subject to APA review. See id. at 471–76. As for

urgency, the government frames its argument as only a slight

variation on its point about the need for speed.

Finally, while the government may be correct that judicial

review would be difficult had it simply disbursed the funds

with no prior warning, see City of Hous. v. HUD, 24 F.3d 1421,

1424 (D.C. Cir. 1994), that should hardly preclude review

where, as here, the government did take prior agency action in

time to afford review. To be sure, the government might have

argued that the actions taken here, including a solicitation of

information, were not final agency action reviewable under the

APA. We take no position on that question because finality in

this context bears on the scope of the plaintiff’s cause of action;

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it is a forfeitable objection that the government did not press

here. See Marcum v. Salazar, 694 F.3d 123, 128 (D.C. Cir.

2012).

IV

On the merits, the district court held that ANCs are Indian

tribes within the ISDA definition and thus are eligible for

funding under Title V of the CARES Act. We review de novo

this legal ruling, which was appropriately made on summary

judgment. Stoe v. Barr, 960 F.3d 627, 629 (D.C. Cir. 2020).

In considering the difficult legal question now before us, we

have benefitted greatly from the district court’s two thoughtful

opinions, rendered under severe time constraints, which

carefully assess the arguments on both sides.

Title V of the CARES Act makes funding available “to

States, Tribal governments, and units of local government.” 42

U.S.C. § 801(a)(1). Alaska Native Corporations are neither

“States” nor “units of local government” in Alaska. ANCs thus

are eligible to receive Title V funds only if they are “Tribal

governments.” Title V defines a “Tribal government” as “the

recognized governing body of an Indian Tribe,” id. § 801(g)(5),

and defines “Indian Tribe” as bearing “the meaning given that

term” in ISDA, id. § 801(g)(1). So ANCs are eligible for Title

V funding only if they qualify as an “Indian tribe” under ISDA.

As explained below, ANCs do not satisfy the ISDA definition.

A

ISDA defines an “Indian tribe” as

[1] any Indian tribe, band, nation, or other organized

group or community, [2] including any Alaska Native

village or regional or village corporation as defined in

or established pursuant to the Alaska Native Claims

12

Settlement Act (85 Stat. 688), [3] 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). The first, listing clause sets forth five

kinds of covered Indian entities—any “tribe, band, nation, or

other organized group or community.” The second, Alaska

clause clarifies that three kinds of Alaskan entities are

covered—“any Alaska Native village or regional or village

corporation.” The third, recognition clause restricts the

definition to a subset of covered entities—those “recognized as

eligible for the special programs and services provided by the

United States to Indians because of their status as Indians.”

The text and structure of this definition make clear that the

recognition clause, which is adjectival, modifies all of the

nouns listed in the clauses that precede it. Under the series-

qualifier canon, “[w]hen there is a straightforward, parallel

construction that involves all nouns or verbs in a series, a

prepositive or postpositive modifier normally applies to the

entire series.” A. Scalia & B. Garner, Reading Law 147 (2012);

see, e.g., Lockhart v. United States, 136 S. Ct. 958, 963 (2016)

(canon applies where “the listed items are simple and parallel

without unexpected internal modifiers”); Jama v. ICE, 543

U.S. 335, 344 n.4 (2005) (same where “modifying clause”

appears “at the end of a single, integrated list”). This canon

applies to the listing clause, which ticks off five synonyms in a

grammatically simple list (any “tribe, band, nation, or other

organized group or community”). Moreover, through its usage

of “including,” the Alaska clause operates to equate its two

parallel nouns (“village” and “corporation”) with the five

preceding nouns. And given the obvious similarities between

the Indian entities in the listing clause and Alaska Native

villages—more than 200 of which have been recognized as

13

tribes—the recognition clause undisputedly modifies “village”

as well as the five previously listed Indian groups. Finally, it

is not grammatically possible for the recognition clause to

modify all of the five nouns in the listing clause, plus the first

noun in the more proximate Alaska clause (“village”), but not

the one noun in the preceding two clauses that is its most

immediate antecedent (“corporation”). If possible, we construe

statutory text to make grammatical sense rather than nonsense.

See Scalia & Garner, supra, at 140–43 (“Grammar Canon”).

For these reasons, an ANC cannot qualify as an “Indian tribe”

under ISDA unless it has been “recognized as eligible for the

special programs and services provided by the United States to

Indians because of their status as Indians.”

B

Because no ANC has been federally “recognized” as an

Indian tribe, as the recognition clause requires, no ANC

satisfies the ISDA definition.

“[I]t is a cardinal rule of statutory construction that, when

Congress employs a term of art, it presumably knows and

adopts the cluster of ideas that were attached to each borrowed

word in the body of learning from which it was taken.” Air

Wis. Airlines Corp. v. Hoeper, 571 U.S. 237, 248 (2014)

(quoting FAA v. Cooper, 566 U.S. 284, 292 (2012)). We

adhere to this presumption unless the statute contains some

“contrary indication.” McDermott Int’l, Inc. v. Wilander, 498

U.S. 337, 342 (1991).

In the context of Indian law, “recognition” is a “legal term

of art.” Frank’s Landing Indian Cmty. v. Nat’l Indian Gaming

Comm’n, 918 F.3d 610, 613 (9th Cir. 2019). It refers to a

“formal political act confirming the tribe’s existence as a

distinct political society, and institutionalizing the government-

to-government relationship between the tribe and the federal

14

government.” Cal. Valley Miwok Tribe v. United States, 515

F.3d 1262, 1263 (D.C. Cir. 2008) (quotation marks omitted).

Federal recognition both establishes the tribe as a “domestic

dependent nation” and “requires the Secretary [of the Interior]

to provide a panoply of benefits and services to the tribe and its

members.” Frank’s Landing, 918 F.3d at 613–14 (quotation

marks omitted); see Muwekma Ohlone Tribe v. Salazar, 708

F.3d 209, 211 (D.C. Cir. 2013) (“Federal recognition is a

prerequisite to the receipt of various services and benefits

available only to Indian tribes.”); Miwok Tribe, 515 F.3d at

1263–64 (noting “the federal benefits that a recognized tribe

and its members may claim”); Golden Hill Paugussett Tribe of

Indians v. Weicker, 39 F.3d 51, 57 (2d Cir. 1994) (“After

passage of the Indian Reorganization Act recognition

proceedings were necessary because the benefits created by it

were made available only to descendants of ‘recognized’

Indian tribes.”). Given the well-established meaning of

“recognition” in Indian law, and its connection to the provision

of benefits to tribal members, we interpret ISDA’s requirement

that an Indian tribe be “recognized as eligible for the special

programs and services provided by the United States to Indians

because of their status as Indians” to require federal recognition

of the putative tribe.

Several pre-ISDA statutes bolster this conclusion. During

the 1950s and 1960s, Congress sought to assimilate Indians by

terminating federal recognition of various tribes, thereby

ending the special relationship that existed between the federal

government and the tribes as sovereigns. Felter v.

Kempthorne, 473 F.3d 1255, 1258 (D.C. Cir. 2007). By rote

formula, these statutes provided that, upon termination,

members of the former tribe “shall not be entitled to any of the

services performed by the United States for Indians because of

their status as Indians.” See, e.g., An Act to Provide for the

Division of the Tribal Assets of the Catawba Indian Tribe of

15

South Carolina, Pub. L. No. 86-322, 73 Stat. 592, 593 (1959);

An Act to Provide for the Distribution of the Land and Assets

of Certain Indian Rancherias and Reservations in California,

Pub. L. No. 85-671, 72 Stat. 619, 621 (1958); An Act to

Provide for the Termination of Federal Supervision Over the

Property of the Ottawa Tribe of Indians in the State of

Oklahoma, Ch. 909, 70 Stat. 963, 964 (1956). 1 These statutes

confirm that, long before ISDA was enacted, there was an

established connection between recognition and sovereignty.

Likewise, in text that closely mirrors ISDA’s recognition

clause, they confirm that with recognition comes various

benefits provided “by the United States for Indians because of

their status as Indians.” In sum, they confirm that not only the

general concept of recognition, but also the specific phrase

used to describe it in ISDA, are terms of art denoting federal

recognition of a sovereign Indian tribe.

The Federally Recognized Indian Tribe List Act of 1994

(List Act) further reinforces this conclusion. It charges the

Secretary of the Interior with “keeping a list of all federally

recognized tribes.” Pub. L. No. 103-454, § 103(6), 108 Stat.

4791, 4792. The list must be “accurate, regularly updated, and

regularly published,” so that all federal agencies may use it “to

determine the eligibility of certain groups to receive services

from the United States.” Id. § 103(7), 108 Stat. at 4792. The

list also must “reflect all federally recognized Indian tribes in

the United States which are eligible for the special programs

and services provided by the United States to Indians because

of their status as Indians.” Id. § 103(8), 108 Stat. at 4792.

Repeating this language, the List Act’s only substantive

section, titled “Publication of list of recognized tribes,”

requires the Secretary to publish annually a list of “all Indian

1

This precise formulation, or close variants of it, appears in at

least sixteen termination statutes enacted between 1954 and 1968.

16

tribes which the Secretary recognizes to be eligible for the

special programs and services provided by the United States to

Indians because of their status as Indians.” 25 U.S.C.

§ 5131(a). Thus, in language that twice tracks ISDA’s

recognition clause almost verbatim, the List Act equates

federal recognition of Indian tribes with eligibility for “the

special programs and services provided by the United States to

Indians because of their status as Indians.”

To be sure, the List Act post-dates ISDA. But during the

time between those two statutes, the Secretary of the Interior

consistently recognized Indian tribes on the same terms and

listed them as so recognized. See Procedures for Establishing

that an American Indian Group Exists as an Indian Tribe, 43

Fed. Reg. 39,361, 39,362 (Sept. 5, 1978) (“[A]cknowledgment

of tribal existence by the Department is a prerequisite to the

protection, services, and benefits from the Federal Government

available to Indian tribes. Such acknowledgment shall also

mean that the tribe is entitled to the immunities and privileges

available to other federally acknowledged Indian tribes by

virtue of their status as Indian tribes . . . .”) (codified at 25

C.F.R. § 83.2 (1978)). Given the strikingly similar language

between the List Act and ISDA, the term-of-art nature of that

language, and its usage in administrative practice spanning

several decades, we conclude that the List Act and ISDA must

reflect the same understanding of tribal recognition.

The intervenors urge a different understanding of what

kind of recognition ISDA requires. Rejecting the term-of-art

understanding laid out above, the intervenors contend that an

Alaska Native group is “recognized” within the meaning of

ISDA if it receives any Indian-related funding or benefits,

regardless of whether the federal government has

acknowledged a sovereign-to-sovereign relationship with the

group. Because some statutes fund programs for Alaska

17

Natives in part through ANCs, see, e.g., 20 U.S.C. § 7453(b)

(Alaska Native language immersion schools), the intervenors

contend that that ANCs are therefore recognized Indian Tribes

for ISDA purposes.

The intervenors’ proposed interpretation cannot be

reconciled with the text of ISDA. First, ISDA’s recognition

clause does not simply require the group to be “recognized as

eligible” for any special program or service “provided by the

United States to Indians because of their status as Indians.”

Instead, it requires the group to be “recognized as eligible for

the special programs and services provided by the United

States to Indians because of their status as Indians” (emphases

added). Use of the definite article (“the”) indicates that what

follows “has been previously specified by context.” Nielsen v.

Preap, 139 S. Ct. 954, 965 (2019). Here, the only “special

programs and services” (in the plural) plausibly specified by

context are the “panoply of benefits and services” to which

“recognized” tribes are entitled. Frank’s Landing, 918 F.3d at

613–14. Second, the intervenors would read recognition out of

ISDA; whereas the statute requires a group to be “recognized

as eligible” for various special programs, the intervenors would

read it to require only that the group be “eligible” to receive

benefits or funding.

The ANCs have not satisfied the recognition clause as we

construe it. They do not contend that the United States has

acknowledged a political relationship with them government-

to-government. Nor could they, for in 1978, the Interior

Department promulgated regulations making “corporations …

formed in recent times” ineligible for recognition. See 25

C.F.R. § 83.4(a). Under that regulation, which remains in

effect, no ANC appears on the Secretary of the Interior’s

current list of recognized Indian tribes. See Indian Entities

Recognized by and Eligible To Receive Services from the

18

United States Bureau of Indian Affairs, 85 Fed. Reg. 5,462

(Jan. 30, 2020). And because ANCs are not federally

recognized, they are not Indian tribes under ISDA.

C

The government agrees that ANCs have not been

“recognized” as ISDA requires. Indeed, it stresses that ANCs,

which have never enjoyed any sovereign-to-sovereign

relationship with the United States, could never be so

recognized. For the government, the upshot is that ANCs need

not satisfy the recognition clause to qualify as Indian tribes.

Otherwise, the government reasons, Congress would have

accomplished nothing by expressly adding “any Alaska native

village or regional or village corporation” (emphasis added)

to the list of possible recognized tribes. Given what the

government describes as a misfit between the last noun in the

statutory list (“corporation”) and the adjectival clause that

follows (including “recognized”), the government contends

that the adjectival clause must be read to modify every listed

noun except its immediate antecedent.

Fortunately, we need not choose between the

government’s interpretation, which produces grammatical

incoherence, and a competing interpretation that would

produce equally problematic surplusage. For we conclude that,

although ANCs cannot be recognized as Indian tribes under

current regulations, it was highly unsettled in 1975, when

ISDA was enacted, whether Native villages or Native

corporations would ultimately be recognized. The Alaska

clause thus does meaningful work by extending ISDA’s

definition of Indian tribes to whatever Native entities

ultimately were recognized—even though, as things later

turned out, no ANCs were recognized.

19

For over a century, claims of tribal sovereignty in Alaska

went largely unresolved. Soon after the Alaska Purchase,

many courts held that Native villages were not sovereigns in

control of some distinct “Indian country.” United States v.

Seveloff, 27 F. Cas. 1021, 1024 (C.C.D. Or. 1872); Kie v.

United States, 27 F. 351, 351–52 (C.C.D. Or. 1886); see also

In re Sah Quah, 31 F. at 329 (“The United States at no time

recognized any tribal independence or relations among these

Indians . . . .”). That view changed over the first half of the

20th century, yet there were still few occasions for the federal

government to develop political relationships with the remote

and isolated Native villages. Sansonetti Op. at *9, *15–16.

Accordingly, the government addressed questions of Native

sovereignty only “in a tentative and reactive way.” Id. at *2.

And when land disputes came to the fore in ANCSA, Congress

complicated the question of Native sovereignty even more. As

a general matter, Indian tribes must control a particular

territory. See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S.

130, 142 (1982); Montoya v. United States, 180 U.S. 261, 266

(1901). But ANCSA terminated 22 of the 23 existing

reservations in Alaska, 43 U.S.C. § 1618(a); extinguished all

aboriginal land claims of Native individuals or tribes, id.

§ 1603; and transferred settlement proceeds not to the Native

villages previously thought to have at least arguable

sovereignty, but to newly-created corporations chartered under

and thus subject to Alaska law, id. §§ 1605(c), 1606(d).

After the enactment of ISDA, questions persisted for

nearly two more decades about the nature of tribal sovereignty

in Alaska. In 1977, a congressional commission concluded that

the sovereign powers of Alaska Native villages had been

placed “largely in abeyance at the present time because the

tribes currently do not possess tribal domains.” 2 Am. Indian

Pol’y Rev. Comm’n, No. 93-440, Final Report, 489, 490–491

& n.12 (1977). In 1988, the Alaska Supreme Court held that

20

Alaska Native villages had “not been accorded tribal

recognition” (except for the tribe inhabiting the one remaining

reservation) and thus lacked tribal sovereign immunity. Native

Vill. of Stevens v. Alaska Mgmt. & Planning, 757 P.2d 32, 39–

41 (Alaska 1988). And as late as January 1993, the Solicitor

of Interior concluded that Alaska Native villages enjoyed some

attributes of tribal sovereignty, but only after conducting an

exhaustive historical survey and analysis of various conflicting

considerations. Sansonetti Op. at *5–35, *75–76. Even then,

the Solicitor concluded that this sovereignty did not extend to

control over the lands transferred by ANCSA to the regional

and village corporations. Id. at *75.

Moreover, ANCSA charged the new ANCs with a handful

of functions that would ordinarily be performed by tribal

governments, making potential future recognition of ANCs

more plausible. For one thing, ANCs were the vehicle for

implementing a global settlement encompassing all land claims

that any Native individual or sovereign could bring against the

United States. 43 U.S.C. § 1601(a). Moreover, the village

corporations were charged with managing the land transferred

by the United States not on behalf of their shareholders, but “on

behalf of a Native village.” Id. § 1602(j). And the regional

corporations were authorized to “promote the health,

education, or welfare” of Alaska Natives. Id. § 1606(r). That

function is currently performed by two large cabinet agencies,

the Department of Health and Human Services and the

Department of Education, which at the time of ANCSA were

constituted as a single Department of Health, Education, and

Welfare. The intervenors themselves characterize ANCs as

performing functions “that one would most naturally describe

as governmental.” Intervenor-Appellees’ Br. at 35.

When ISDA was enacted, the standards and procedures for

the United States to recognize Indian tribes also were unsettled.

21

At that time, recognition occurred in an “an ad hoc manner,”

with petitions for recognition evaluated “on a case-by-case

basis,” Mackinac Tribe v. Jewell, 829 F.3d 754, 756 (D.C. Cir.

2016), and “at the discretion” of the Interior Department,

Procedures Governing Determination that Indian Group Is a

Federally Recognized Indian Tribe, 42 Fed. Reg. 30,647,

30,647 (June 16, 1977). It was not until 1978 that the

Department first promulgated regulations establishing uniform

standards to govern the question whether to grant “formal

recognition” to specific Indian groups. Mackinac Tribe, 829

F.3d at 756.

But even after promulgating those regulations, Interior still

had difficulty sorting out whether to recognize Native villages,

corporations, or both. In 1979, Interior published its first list

of tribes recognized under the new regulatory criteria. The list

contained no Alaska Native entities, which the agency said

would be addressed “at a later date.” Indian Tribal Entities that

Have a Government-To-Government Relationship with the

United States, 44 Fed. Reg. 7,235, 7,235 (Feb. 6, 1979). In

1988, Interior included both villages and corporations in a

single list designated as “native entities within the State of

Alaska recognized and eligible to receive services from the

United States Bureau of Indian Affairs.” Indian Entities

Recognized and Eligible to Receive Services from the United

States Bureau of Indian Affairs, 53 Fed. Reg. 52,829, 52,832–

33 (Dec. 29, 1988) (cleaned up). Finally, Interior changed

course in October 1993, publishing a substantially revised list

of recognized Native entities that included over 200 Alaska

Native villages, but no Alaska Native corporations. Indian

Entities Recognized and Eligible to Receive Services from the

United States Bureau of Indian Affairs, 58 Fed. Reg. 54,364

(Oct. 21, 1993). In the preamble to that list, Interior analogized

Native corporations to “tribal organizations” in the lower 48

states, which were not recognized as Indian tribes. See id. at

22

54,365. Moreover, it expressed concern that recognizing

Native corporations as sovereign entities would undercut the

case for so recognizing the traditional Native villages. See id.

As the leading Indian-law treatise explains, “the question of

federal recognition of Alaska tribes” thus was not “definitively

settled” until Interior published this “revised list of federally

recognized tribes” in October 1993. Cohen’s Handbook,

supra, § 4.07(3)(d)(ii).

In sum, when Congress enacted ISDA in 1975, it was

substantially uncertain whether the federal government would

recognize Native villages, Native corporations, both kinds of

entities, or neither. In the face of this uncertainty, Congress

expanded the term “Indian tribe” to cover any Native “village

or regional or village corporation” that was appropriately

“recognized.” By including both villages and corporations,

Congress ensured that any Native entities recognized by

Interior or later legislation would qualify as Indian tribes.

There is no surplusage problem simply because, almost two

decades later, Interior chose to recognize the historic villages

but not the newer corporations as the ultimate repository of

Native sovereignty.

Finally, we reject the government’s plea for deference.

The government does not contend that its interpretation of

ISDA is entitled to deference under Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), presumably because that interpretation has never been

formally expressed, see United States v. Mead Corp., 533 U.S.

218, 226–27 (2001). Instead, the government claims

deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944),

to the extent that its position is persuasive. The government’s

position in this case traces back to an internal agency

memorandum written by an Assistant Solicitor of Interior, who

simply asserted that ANCs must be exempt from ISDA’s

23

recognition clause in order to avoid statutory surplusage. That

memorandum did not address any of the textual or historical

considerations set forth above. Moreover, it appears

inconsistent with a binding regulation adopted by the

Department of the Treasury, the agency before the Court on

this appeal. The regulation provides that, under ISDA, “[e]ach

such Indian Tribe” covered by the definition—“including any

Alaska Native village or regional or village corporation” as

defined in ANCSA—“must be recognized as eligible for

special programs and services provided by the United States to

Indians because of their status as Indians.” 12 C.F.R.

§ 1805.104. Because the Interior Department’s administrative

interpretation of ISDA has little persuasive power, we afford it

no deference. Likewise, we decline to follow Cook Inlet Native

Ass’n v. Bowen, 810 F.2d 1471 (9th Cir. 1987), in which the

Ninth Circuit accepted that interpretation. See id. at 1473–76.

For these reasons, we read the ISDA definition to mean

what it says, that Alaska Native villages and corporations count

as an “Indian tribe” only if “recognized” as such.

D

The ANCs suggest that a ruling for the tribes would

produce sweeping adverse consequences. They worry that

such a ruling would disentitle them not only from CARES Act

funding, but also from funding under ISDA and the many other

statutes that incorporate its “Indian tribe” definition. This is far

from obvious, for ISDA makes funding available to any “tribal

organization,” upon request by any “Indian tribe.” 25 U.S.C.

§ 5321(a)(1). And it further defines “tribal organization” to

include not only “the recognized governing body of any Indian

tribe,” but also “any legally established organization of Indians

which is controlled, sanctioned, or chartered by such governing

body.” Id. § 5304(l). The parties disagree on whether ANCs,

24

if requested to provide services by a recognized Native village,

may receive ISDA funding as an “organization of Indians” that

was “sanctioned” by the village to provide the services. We

need not resolve that question, and so we leave it open.

The ANCs further claim flexibility to provide coronavirus

relief to Alaska Natives who are not enrolled in any recognized

village. Given the urgent need for relief, the ANCs say, we

should broadly construe the CARES Act to direct funding to

the entities best able to provide needed services. The short

answer is that we must of course follow statutory text as against

generalized appeals to sound policy. But we also note that

ANCSA expressly preserves “any governmental programs

otherwise available to the Native people of Alaska as citizens

of the United States or the State of Alaska.” 43 U.S.C.

§ 1626(a). We are confident that, if there are Alaska Natives

uncared for because they are not enrolled in any recognized

village, either the State of Alaska or the Department of Health

and Human Services will be able to fill the void.

V

We hold that Alaska Native Corporations are not eligible

for funding under Title V of the CARES Act. We thus reverse

the grant of summary judgment to the government and the

intervenors, as well as the denial of summary judgment to the

plaintiff tribes.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

It is, was and always will be, this court’s duty “to say what the

law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2

L.Ed. 60 (1803), but that does not mean we should be blind to

the impact of our decisions. The COVID-19 pandemic is an

unprecedented calamity, subjecting Americans to physical and

economic suffering on a national scale. The virus respects no

geographic or political boundaries and invades nearly every

facet of life. And as the virus has swept through our Nation, it

has disproportionately affected American Indian and Alaska

Native communities.1

Although I join my colleagues in full, I write separately to

express my view that this decision is an unfortunate and

unintended consequence of high-stakes, time-sensitive

legislative drafting.2 It is indisputable that the services ANCs

provide to Alaska Native communities—including healthcare,

elder care, educational support and housing assistance—have

been made only more vital due to the pandemic. I can think of

no reason that the Congress would exclude ANCs (and thus

exclude many remote and vulnerable Alaska Natives) from

receiving and expending much-needed Title V funds.

1

Press Release, Centers for Disease Control and Prevention,

CDC data show disproportionate COVID-19 impact in American

Indian/Alaska Native populations (Aug. 19, 2020),

https://www.cdc.gov/media/releases/2020/p0819-covid-19-impact-

american-indian-alaska-native.html.

2

The CARES Act was drafted and required to be implemented

on an extraordinarily short timeline. Only eight days elapsed between

the CARES Act’s introduction in the Senate on March 19 and the

President’s signature on March 27. See H.R. 784, 116th Cong. (2020)

(enacted); S. 3548, 116th Cong. (2020). The CARES Act funds at

issue were to be distributed no later than 30 days after enactment and

any undistributed funds are scheduled to lapse on September 30. 42

U.S.C. § 801(a)(1), (b)(1).

2

Indian law, however, does not have a simple history or

statutory scheme and “no amount of wishing will give it a

simple future.” Lummi Indian Tribe v. Whatcom Cty., 5 F.3d

1355, 1360 (9th Cir.) (Beezer, J., dissenting), as amended on

denial of reh’g (Dec. 23, 1993); see also United States v. Lara,

541 U.S. 193, 219 (2004) (Thomas, J., concurring) (“Federal

Indian policy is, to say the least, schizophrenic.”). Indian law’s

complexity and the pressure to provide swift relief may have

proved too much in this case. ISDA is only one of the many

statutes which define “Indian tribe” in less than clear—and

even conflicting—terms.3 I believe the Congress must have had

reason to believe its definition would include ANCs but, by

incorporating by reference ISDA’s counter-intuitive definition,

it did not, in fact, do so. As a result, many of our fellow citizens

who depend on ANCs will not receive Title V aid. Nonetheless

it is not this court’s job to “soften . . . Congress’ chosen words

whenever [we] believe[] those words lead to a harsh result.”

United States v. Locke, 471 U.S. 84, 95 (1985). And a harsh

result it is.

3

For example, the Native American Housing Assistance and

Self-Determination Act defines “Indian tribe” as a “federally

recognized tribe” and defines “federally recognized tribe” as those

tribes, Alaska Native villages or ANCs “recognized as eligible for

the special programs and services provided by the United States to

Indians because of their status as Indians pursuant to [ISDA].” 25

U.S.C. §4103(13)(B) (emphasis added).