Petition for Writ of Certiorari — Janet L. Yellen, Secretary of the Treasury, Petitioner v. Confederated Tribes of the Chehalis Reservation, et al.

Supreme Court briefOct 23, 2020

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 20-5204

Consolidated with 20-5205 and 20-5209

CONFEDERATED TRIBES OF THE CHEHALIS

RESERVATION, ET AL., APPELLEES

UTE TRIBE OF THE UINTAH AND OURAY INDIAN

RESERVATION, APPELLANT

STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF U.S. DEPARTMENT OF THE TREASURY,

ET AL., APPELLEES

Argued: Sept. 11, 2020

Decided: Sept. 25, 2020

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)

Before: HENDERSON , MILLETT, and KATSAS, Circuit Judges.

Opinion of the Court filed by Circuit Judge KATSAS.

Concurring Opinion filed by Circuit Judge HENDERSON.

(1a)

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 statechartered 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.

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

(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 initially calcu-

lated 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. § 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).

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.

Id. § 5304(e). ISDA further defines a “tribal organization” to include “the recognized governing body of any

Indian tribe.” Id. § 5304(l).

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).

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.

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.

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.

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

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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; 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).

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 Cor-

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porations 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.

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

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

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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 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

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“recognized as eligible for the special programs and services provided by the United States to Indians because

of their status as Indians.”

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 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.

14a

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 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

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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. 103454, § 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 tribes which the

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

least sixteen termination statutes enacted between 1954 and 1968.

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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 interve-

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nors 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 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

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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

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.

The government agrees that ANCs have not been

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

ANCs, which have never enjoyed any sovereign-tosovereign 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

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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.

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, 35152 (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, *1516. 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,

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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 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

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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. 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

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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 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,

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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 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

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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.

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, 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.

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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.

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.

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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

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-indianalaska-native.html.

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).

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exclude many remote and vulnerable Alaska Natives)

from receiving and expending much-needed Title V

funds.

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.

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).

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Case No. 20-cv-01002 (APM)

CONFEDERATED TRIBES OF THE CHEHALIS

RESERVATION, ET AL., PLAINTIFFS

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, DEFENDANT

Case No. 20-cv-01059 (APM)

CHEYENNE RIVER SIOUX TRIBE, ET AL., PLAINTIFFS

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, DEFENDANT

Case No. 20-cv-01070 (APM)

UTE TRIBE OF THE UINTAH AND OURAY

RESERVATION, PLAINTIFF

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, DEFENDANT

Filed:

June 26, 2020

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MEMORANDUM OPINION

Under Title V of the Coronavirus Aid, Relief, and

Economic Security Act, or CARES Act, Congress appropriated $8 billion for “Tribal governments” to combat the COVID-19 pandemic. This consolidated case

concerns who qualifies as a “Tribal government” under

the CARES Act. Plaintiffs are a group of federally

recognized tribes from the lower 48 states and Alaska;

they ask this court to permanently enjoin the Secretary

of the Treasury from making Title V payments to Alaska

Native regional and village corporations, or ANCs.

ANCs are not federally recognized tribes; rather, they

are for-profit corporations established by Congress in

1971 under the Alaska Native Claims Settlement Act

and recognized under Alaska law.

The CARES Act defines “Tribal governments” to

mean “the recognized governing body of an Indian Tribe.”

The Act in turn defines “Indian Tribe” by cross-referencing the definition of that term in another statute: the

Indian Self-Determination and Education Assistance

Act. In Plaintiffs’ view, ANCs do not meet the statutory definition of either “Indian Tribe” or “Tribal government.” The Secretary of the Treasury, whom Congress vested with authority to allocate Title V funds, on

the other hand, reads the CARES Act to allow payment

of Title V funds to ANCs. The court previously agreed

with Plaintiffs, at least tentatively, and preliminarily enjoined the Secretary from distributing CARES Act

funds to ANCs. See Confederated Tribes of the Chehalis Reservation v. Mnuchin, Case No. 20-cv-1002

(APM), 2020 WL 1984297 (D.D.C. April 27, 2020) (“Confederated Tribes”). In that decision, the court found

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that Plaintiffs would be irreparably harmed absent emergency relief, and that they had established a substantial

likelihood of success on the merits.

The matter is before the court on cross-motions for

summary judgment. Although the court initially determined that Plaintiffs were likely to succeed on the

merits of their claim, after reviewing the parties’ arguments on summary judgment, the court now holds that

ANCs are “Indian Tribes,” and that their boards of directors are “Tribal governments,” for purposes of the

CARES Act. Accordingly, ANCs are eligible to receive Title V funds. As a result, the court dissolves the

preliminary injunction and enters judgment in favor of

Defendants.

Background

The court begins with a brief overview of the relevant

statutes and the history of this case. 1

1. Statutory Background

Congress enacted the Coronavirus Aid, Relief, and

Economic Security Act (“CARES Act”), Pub. L. No.

116-136, 134 Stat. 281 (2020), to respond to the devastating impacts of the COVID-19 pandemic. Title V of the

CARES Act, the title relevant here, appropriates $150

billion for fiscal year 2020 for “payments to States,

Tribal governments, and units of local government.”

For a more detailed factual and procedural background, the

court directs the reader to its Memorandum Opinion granting preliminary injunctive relief. See Confederated Tribes, 2020 WL

1984297.

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42 U.S.C. § 801(a)(1). Of that sum, $8 billion is “reserve[d] . . . for making payments to Tribal governments.” Id. § 801(a)(2)(B). Congress directed the

Secretary of the Treasury (“Secretary”) to disburse

those monies to “Tribal governments” within 30 day of

the law’s enactment, or by April 26, 2020. § 801(b)(1).

The CARES Act defines “Tribal government” as

“the recognized governing body of an Indian tribe.”

Id. § 801(g)(5). The Act further provides that “[t]he

term ‘Indian Tribe’ has the meaning given that term”

in section 4(e) of the Indian Self-Determination and

Education Assistance Act, 25 U.S.C. § 5304(e)). Id.

§ 801(g)(1). The Indian Self-Determination and Education Assistance Act, or 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) [43 U.S.C. § 1601 et seq.

(“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.”

25 U.S.C. § 5304(e). The court refers to “Alaska Native

. . . regional or village corporation[s]” in this opinion

as ANCs.

Congress enacted ISDEAA in 1975 “to help Indian

tribes assume responsibility for aid programs that benefit their members.” Menominee Indian Tribes of

Wis. v. United States, 136 S. Ct. 750, 753 (2016). Under

ISDEAA, federally recognized Indian tribes, tribal organizations, and tribal consortiums can choose to have

the Bureau of Indian Affairs (BIA) provide direct services, or they can operate the programs themselves by

32a

entering into “self-determination contracts” with these

federal agencies to provide services that otherwise

would have been provided by the federal government,

such as education, law enforcement, and health care.

25 U.S.C. § 5321(a)(1); see also Menominee Indian

Tribes of Wis., 136 S. Ct. at 753. A contracting tribal

organization is eligible to receive the amount of money

that the federal government would have otherwise spent

on the program, see 25 U.S.C. § 5325(a)(1), as well as reimbursement for reasonable “contract support costs,”

which include administrative and overhead costs associated with carrying out the contracted programs, id.

§ 5325(a)(2), (3)(A). ISDEAA was amended in 1988,

1994, and 2000, and now includes health care programs

administered by the Indian Health Service. See Pub.

L. 100-472 (Oct. 5, 1988); Pub. L. 103-413 (Oct. 25, 1994);

Pub. L. 106-260 (Aug. 18, 2000).

2. Factual and Procedural Background

Congress instructed the Secretary to distribute Title

V funding quickly—within 30 days of the law’s enactment. So, on April 13, 2020, shortly after the CARES

Act became law, the Secretary published on the Treasury Department’s website a form titled “Certification

for Requested Tribal Data,” which sought certain data

to effectuate disbursement of CARES Act funds. See

Confederated Tribes of the Chehalis Pls.’ Mot. for TRO

& Prelim. Inj., ECF No. 3, Decl. of Riyaz Kanji, Ex. 2,

ECF No. 3-8 [hereinafter Certification], at 15-16. The

Certification identified metrics specific to ANCs.

ANCs are not federally recognized Indian tribes but are

for-profit corporations established by Congress under

the Alaska Native Claims Settlement Act. See 43

U.S.C. §§ 1606, 1607. The metrics specific to ANCs

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identified by the Secretary included “shareholders” as

of January 1, 2020, and total land base, which expressly

included lands “selected pursuant to the Alaska Native

Claims Settlement Act.” Certification.

The Certification’s posting prompted three groups of

Tribes to bring suit against the Secretary under the Administrative Procedure Act (“APA”), challenging the

Secretary’s anticipated treatment of ANCs as eligible

for Title V funding. Id. On April 17, 2020, the Confederated Tribes of the Chehalis Reservation, the Tulalip

Tribes, the Houlton Band of Maliseet Indians, the Akiak

Native Community, the Asa’carsarmiut Tribe, and the

Aleut Community of St. Paul Island (collectively, “Confederated Tribes Plaintiffs”) filed an action against the

Secretary. Confederated Tribes Compl., ECF No. 1. 2

Shortly afterward, Plaintiffs Cheyenne River Sioux

Tribe, Oglala Sioux Tribe, and Rosebud Sioux Tribe

filed their suit, see Cheyenne River Sioux Compl., ECF

No. 1, and Plaintiff Ute Indian Tribe of the Uintah and

Ouray Reservation filed a third lawsuit the next day, see

Ute Compl., ECF No. 1. The court consolidated all

three cases. See Docket 20-cv-1070, Minute Order,

April 24, 2020; Docket 20-cv-1059, Minute Order, April

23, 2020.

On April 23, 2020, the Treasury Department formally

announced its position that it intended to distribute Title

The Confederated Tribes Plaintiffs filed an amended complaint,

which added the Navajo Nation; Quinault Indian Tribe; Pueblo of

Picuris; Elk Valley Rancheria, California; and San Carlos Apache

Tribe as plaintiffs. See Am. Confederated Tribes Compl., ECF

No. 7. Plaintiffs again brought the same single count for violations of the APA. Id. ¶¶ 117-23.

34a

V funds to ANCs: “After consultation with the Department of the Interior, Treasury has concluded that Alaska

Native regional and village corporations as defined in or

established pursuant to the Alaska Native Claims Settlement Act are eligible to receive payments from the

Fund in the amounts to be determined by the Secretary

of the Treasury.” U.S. TREASURY DEP’T, Coronavirus

Relief Fund Payments to Tribal Governments (April 23,

2020) (footnote omitted). 3

All Plaintiffs moved for preliminary injunctive relief,

which this court granted on April 27, 2020. See Confederated Tribes, 2020 WL 1984297. In granting that relief, the court rejected the Secretary’s threshold contention that the Treasury Department’s legal determination that ANCs are eligible for Title V funds is a presumptively unreviewable discretionary action under the

APA. See id. at *5-6. The court concluded that,

“while the Secretary’s decisions as to how much to disburse might not be reviewable, his decisions to whom to

disburse those funds most certainly is.” Id. at *5 (footnote omitted). As for the injunction factors, the court

evaluated them on a sliding scale and found that they

weighed in favor of granting relief. See id. at *7-15.

In particular, on the merits of the APA claim, the court

Available at https://home.treasury.gov/system/files/136/

Coronavirus-Relief-Fund-Payments-to-Tribal-Governments.pdf.

The Confederated Tribes and the Cheyenne River Sioux Plaintiffs

both amended their complaints a second time following summary

judgment briefing to include an additional allegation regarding the

Secretary’s April 23, 2020 statement, which was not issued until after the date of the Confederated Tribes Plaintiffs’ first amended

complaint. See Confederated Tribes Second Am. Compl., ECF No.

93; Cheyenne River Sioux Second Am. Compl., ECF No. 96.

35a

preliminarily agreed with Plaintiffs that no ANC satisfied the CARES Act’s definition of “Tribal government”

and therefore no ANC was eligible for Title V funds.

Id. at *10. The court declined, however, to grant the

full relief that Plaintiffs sought. Instead of compelling

the Secretary to distribute all $8 billion in Title V funds

only to federally recognized Indian tribes, the court entered a “more limited remedy,” id. at *16, which enjoined the Secretary from disbursing Title V funds to

any ANC pending entry of a final judgment in the case,

see Order, ECF No. 37.

On May 5, 2020, the Treasury Department began distributing 60 percent, or $4.8 billion, of the $8 billion in

Title V funds designated for Tribal governments. The

Secretary allocated that sum based not on any information collected through the Certification, but rather on

pre-existing tribal population data maintained by the

U.S. Department of Housing and Urban Development

(“HUD”). See U.S. DEP’T OF TREASURY, Coronavirus

Relief Fund Allocations to Tribal Governments (May 5,

2020), at 2. 4 Based on the HUD data, the Secretary determined that ANCs would receive $162.3 million in Title V funds but withheld that amount to comply with the

preliminary injunction. See Agua Caliente Band of

Cahuilla Indians v. Mnuchin, No. 20-cv-01136 (APM)

[hereinafter Agua Caliente Band], 5/8/2020 Hr’g Tr.,

ECF No. 30, at 18.

The Secretary began disbursing the balance of the

Title V funds on June 17, 2020. See Notice, Agua Caliente Band, ECF No. 43 [hereinafter Notice]. This

Available at https://home.treasury.gov/system/files/136/

Coronavirus-Relief-Fund-Tribal-Allocation-Methodology.pdf.

36a

second tranche of emergency relief was distributed

based on employment and expenditure data submitted

by Tribal governments, including ANCs. See Def.’s

Status Report, Agua Caliente Band, ECF No. 39. The

Secretary once again allocated Title V funds to ANCs

but withheld making payments per the court’s order, see

Notice, and he has not publicly announced the exact

amount withheld for ANCs in this second tranche of

funding.

Meanwhile, a number of ANCs and ANC associations

filed motions to intervene as defendants in this case, 5

which the court granted. See Minute Order, May 13,

2020; Order, ECF No. 70. Summary judgment briefing concluded on June 9, 2020, and the court heard argument on the parties’ cross-motions on June 12, 2020.

See Minute Entry, June 12, 2020.

II.

Under Federal Rule of Civil Procedure 56, summary

judgment is appropriate when the moving party demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, in cases

such as this one involving review of a final agency action,

the standard set forth in Rule 56 does not apply. See

AFL-CIO v. Chao, 496 F. Supp. 2d 76, 81 (D.D.C. 2007).

The court’s role in an APA action “is to determine

whether or not as a matter of law the evidence in the

See Mot. of Ahtna, Inc. to Intervene as Defendant & Incorporated Mem. of Law, ECF No. 43; Mot. of Alaska Native Village Corp.

Ass’n, Inc. & Ass’n of ANCSA Regional Corp. Presidents/CEO’s,

Inc. to Intervene and Mem. of P. & A., ECF No. 45; Mot. to Intervene as Defendants & Supp. Mem. of Law, ECF No. 46.

37a

administrative record permitted the agency to make the

decision it did.” Charter Operators of Ala. v. Blank,

844 F. Supp. 2d 122, 127 (D.D.C. 2012) (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.

1985)). Summary judgment “serves as a mechanism

for deciding, as a matter of law, whether the agency action is supported by the administrative record and is

otherwise consistent with the APA standard of review.”

Id.

III.

The Secretary renews the jurisdictional argument

that the court rejected at the preliminary injunction

stage, which is that “Congress did not intend for emergency relief payments to be subject to judicial review.”

Def.’s Mot for Summ. J., ECF No. 79, Def.’s Mem of

Law in Supp. of its Mot. for Summ. J., ECF No. 79-1

[hereinafter Def.’s Mot.], at 11. The Secretary points

to two features of the CARES Act that he contends

evince such congressional intent. First, he points to the

short statutory, 30-day timeline to distribute funds. Id.

at 11-12. Second, he argues that the statutory scheme,

which does not require Treasury to publish to “whom it

will be paying, its methodology or the payment amounts”

prior to disbursing the funds, makes clear Congress’s

intent that the Secretary’s decisions be insulated from

review. Id. at 12. These arguments are refinements

of the Secretary’s prior assertion of judicial non-reviewability, but they fare no better.

There is a “strong presumption that Congress intends judicial review of administrative action.” Council for Urological Interests v. Sebelius, 668 F.3d 704, 708

(D.C. Cir. 2011) (quoting Bowen v. Mich. Acad. of Fam-

38a

ily Physicians, 476 U.S. 667, 670 (1986)). That presumption can be overcome if “congressional intent to

preclude judicial review is fairly discernible from the

statutory scheme.” Block v. Cmty. Nutrition Inst., 467

U.S. 340, 390 (1984). But such a showing entails a “heavy

burden,” which must be carried by “clear and convincing

evidence.” Dunlop v. Bachowski, 421 U.S. 560, 567

(1975) (citation omitted), overruled on other grounds by

Furniture & Piano Moving, Furniture Store Drivers,

Helpers, Warehousemen & Packers v. Crowley, 467 U.S.

526 (1984).

A tight statutory deadline by itself is not sufficient to

overcome the strong presumption in favor of judicial review. See id. at 562 n.2 & 567 (holding that a decision

by the Secretary of Labor subject to a 60-day deadline

is reviewable); In re FTC Corp. Patterns Report Litig.,

432 F. Supp. 274, 289-90 (D.D.C. 1977) (rejecting argument that 45-day timeline for agency action evinced

Congress’[s] intent to preclude judicial review, and reasoning that “[a]t best, a court could indirectly imply

from Congress’s obvious desire to prevent undue delays

an intent to protect the [Secretary’s] actions from judicial scrutiny. This tenuous link, however, does not constitute clear and convincing evidence of Congressional

intent to preclude judicial review.”). The cases Defendant cites to the contrary are easily distinguishable.

In Morris v. Gressette, 432 U.S. 491 (1977), for example,

the Court pointed to numerous features of the statute,

including “the potential severity of the . . . remedy,

the statutory language, and the legislative history,”

from which “nonreviewability [could] fairly be inferred.”

Id. at 501, 504 (citation omitted). No such additional

indicia are present here. Dalton v. Specter also is inapposite. There, four concurring Justices found that a

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series of “tight and rigid deadlines” prescribed in a statutory scheme for military base closings was an indication that Congress did not intend for judicial review of

an individual closing determination. 511 U.S. 462, 479

(1994) (Souter, J., concurring, joined by Blackmun, Stevens, Ginsburg, JJ.). But there was also more at play

in Dalton: the Justices observed that “the Act’s text

and intricate structure . . . plainly express congressional intent that action on a base-closing package be

quick and final, or no action be taken at all.” Id. That

included not only a series of “unbending” time deadlines,

but also the speed with which the base closures were to

occur if approved and the disbanding of the base-closing

Commission at the end of each decision round, and its

eventual automatic termination. See id. at 480-81.

Here, in sharp contrast, Congress did not tie the 30-day

distribution period to any other deadline for congressional or agency action; and there is no impending automatic expiration of authority to distribute the funds. 6

Nor can it be said that the deadline is “unbending,” as

the Secretary—independent of any litigation—did not

begin distributing the second tranche of funds until

June 12, 2020, 47 days past the 30-day deadline, see

Def.’s Status Report, Agua Caliente Band, ECF No. 39;

42 U.S.C. § 801(b)(1). A stand-alone deadline, even one

of a mere 30 days, cannot without more overcome the

strong presumption in favor of agency review.

At most, Title V mandates payment of funds for “fiscal year 2020,”

which expires September 30, 2020. 42 U.S.C. § 801(b). That leaves

sufficient time to litigate this matter to its conclusion, including possible expedited appellate review.

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Nor does the fact that Congress did not require the

Secretary to identify aid recipients before making payments indicate an intent to foreclose judicial review.

The Secretary points to no evidence that Congress even

considered such a pre-publication requirement, let alone

consciously elected not to adopt one. The court cannot

draw any inference of non-reviewability from Congress’s failure to enact a provision that it did not even

consider. The presumption of reviewability therefore

applies, and the Secretary has failed to defeat it.

IV.

The court turns now to the merits. Recall, the CARES

Act grants $8 billion in emergency aid to “Tribal governments,” which the Act defines as “the recognized governing body of an Indian Tribe.” 42 U.S.C. § 801(g)(5).

“Indian Tribe,” in turn, “has the meaning given that

term” under ISDEAA. Id. § 801(g)(1). ISDEAA defines “Indian tribe” as:

[A]ny 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). Plaintiffs argue that ANCs do not

qualify for Title V funds for two reasons: (1) ANCs do

not meet ISDEAA’s definition of “Indian Tribe,” and (2)

ANCs are not a “recognized governing body” of an Indian tribe, nor do they have such a body. Though these

41a

arguments seem straightforward at first blush, the parties have staked out varied approaches in addressing

them.

Whether ANCs are “Indian Tribes” under ISDEAA

turns on how one reads the dependent clause that appears at the end of the ISDEAA definition—“which is

recognized as eligible for the special programs and services provided by the United States to Indians because

of their status as Indians.” The court refers to this

as the “eligibility clause.” According to the Confederated Tribes Plaintiffs, the eligibility clause applies to

each listed entity that comes before it, including most

critically “Alaska Native . . . regional or village

corporations” —ANCs. See Confederated Tribes Mot.

for Summ. J. and Mem. of P. & A., ECF No. 77 [hereinafter Confederated Tribes Mot.], at 13 (citing 25 U.S.C.

§ 5304(e)). Because no ANC presently satisfies the eligibility clause, those Plaintiffs say, none qualifies for

CARES Act funds. Id. at 13-14.

The Confederated Tribes Plaintiffs, however, are the

only Plaintiffs that press this interpretation. The Cheyenne River Sioux and Ute Plaintiffs (collectively, “Cheyenne River Sioux Plaintiffs”) acknowledge that “ANCs

can be treated as ‘Indian tribe[s]’ for limited purposes”

under ISDEAA.

See Pls. Cheyenne River Sioux

Tribe’s, Rosebud Sioux Tribe’s, Oglala Sioux Tribe’s,

Nondalton Tribal Council’s Arctic Village Council’s Native Village of Venetie Tribal Government’s, Navajo Nation’s, & Ute Indian of the Uintah & Ouray Indian Reservation’s Mem. in Supp. of Jt. Mot. for Summ. J., ECF

No. 76-2 [hereinafter Cheyenne River Sioux Mot.], at 4.

Thus, there is a split among Plaintiffs as to whether

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ANCs qualify as “Indian Tribes” for purposes of the

CARES Act.

Ironically, the Secretary agrees with the Confederated Tribe Plaintiffs that ANCs do not satisfy, and never

have satisfied, the eligibility clause; and yet he contends

that ANCs qualify for CARES Act funding as “Indian

Tribes” under ISDEAA. Def.’s Mot. at 1. The Secretary asserts that the ISDEAA definition must be read

to, in effect, exempt ANCs from satisfying the eligibility

clause. That interpretation, the Secretary claims, is

faithful to congressional design, because the Confederated Tribes’ alternative reading, if accepted, would render the listing of ANCs in the ISDEAA definition surplusage and defeat Congress’s intent to make ANCs eligible for ISDEAA self-determination contracts. The

ANC-Intervenors, by contrast, take a “heads-I-win,

tails-I-win” approach to reading the ISDEAA definition.

They say that ANCs do satisfy the ordinary meaning of

the eligibility clause, because they are “eligible for the

special programs and services provided by the United

States to Indians because of their status as Indians.”

Mem. of P. & A. in Supp. of Intervenor-Defs.’ Mot. for

Summ. J., ECF No. 78-1 [hereinafter Intervenors’

Mot.], at 47; Intervenor-Defs.’ Resp. in Opp’n to Pls.’

Cross-Mots. for Summ. J., ECF No. 86 [hereinafter Intervenors’ Opp’n], at 5. The Secretary expressly rejects this reading, contending that the eligibility clause

conveys the principle of federal recognition of Indian

tribes, which ANCs as corporations cannot satisfy (the

Confederated Tribe Plaintiffs agree). See Def.’s Combined Opp’n & Reply in Supp. of Mot. for Summ. J., ECF

No. 88 [hereinafter Def.’s Opp’n], at 4 n.3; Confederated

Tribes Mot. at 14; Confederated Tribes Pls.’ Reply in

Supp. of its Mot. for Summ. J. & Resp. in Opp’n to Defs.’

43a

Mots. for Summ. J., ECF No. 87 [hereinafter Confederated Tribes Opp’n], at 7-8. No matter, say the ANCIntervenors. If their primary reading is incorrect, they

then embrace the Secretary’s reading, which exempts

ANCs from the eligibility clause. See 6/12/2020 Hr’g

Tr., ECF No. 94, at 88-89. Either way, according to the

ANC-Intervenors, they qualify as “Indian Tribes” under ISDEAA and therefore are eligible for Title V funds.

Id.

There is greater alignment among the parties on the

second question: whether an ANC qualifies as a “Tribal

government” for the purposes of the CARES Act. The

Cheyenne River Sioux Plaintiffs urge the court not to

get bogged down in the morass of whether ANCs qualify

as “Indian Tribes” because, in their view, “ANCs are not

Tribal governments under any measure.” Cheyenne

River Sioux Mot. at 2. The Confederated Tribes Plaintiffs agree, though this is their secondary position.

Confederated Tribes Mot. at 12-13. The Secretary and

the ANC-Intervenors see eye-to-eye on this question,

too. They agree that an ANC’s board of directors qualifies as a “recognized governing body of an Indian tribe”

for purposes of the CARES Act. Def.’s Mot. at 34; Intervenors’ Mot. at 38-39. Their argument, as will be

seen below, relies on a similar definitional phrase contained in ISDEAA, “tribal organization,” that appears

nearly verbatim as the CARES Act’s definition of “Tribal

government,” compare 25 U.S.C. § 5304(l) (defining “tribal

organization” to mean in part “the recognized governing

body of any Indian tribe”) with 42 U.S.C. § 801(g)(5) (defining “Tribal government” to mean “the recognized

governing body of an Indian Tribe”), which they assert

encompasses an ANC’s board of directors for ISDEAA

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contracting purposes.

venors’ Mot. at 38-39.

Def.’s Mot. at 30-31, 33; Inter-

As the above summation shows, this case does not

present easy, straightforward questions of statutory interpretation. The court has wrestled with them. Each

side has marshaled an impressive array of textual, historical, and practical evidence, all of which must be

viewed against the unique treatment of Native Alaskans

by Congress and Executive Branch agencies. Though

the court ruled at the preliminary injunction stage that

ANCs likely did not qualify for CARES Act funds, as

explained below, the court now concludes otherwise:

ANCs qualify as “Indian Tribes,” and their boards of directors are “recognized governing bod[ies],” for purposes of the CARES Act. Accordingly, the court holds

that ANCs are eligible for Title V funding.

“Indian Tribe” under ISDEAA

The parties agree that, as a matter of pure grammar,

the eligibility clause contained in the definition of “Indian Tribe” in ISDEAA and the CARES Act applies to

ANCs. See Hr’g Tr. at 54-55; Intervenors’ Opp’n at 45; Confederated Tribes Mot. at 13-14. The eligibility

clause plainly modifies each of the nouns that precedes

it, including ANCs. The parties diverge, however, on

whether that grammatical structure both begins and

ends the statutory interpretation debate.

Each side comes armed with its own preferred canon

of statutory construction. The Confederated Tribes

Plaintiffs contend that the series-qualifier canon of statutory interpretation settles this case. See Confederated Tribes Mot. at 13-14. Under that canon, “ ‘[w]hen

45a

there is a straightforward, parallel construction that involves all nouns or verbs in a series,’ a modifier at the

end of the list ‘normally applies to the entire series,’ ”

Lockhart v. United States, 136 S. Ct. 958, 970 (2016) (Kagan, J., dissenting) (quoting ANTONIN SCALIA & BRYAN

A. GARNER, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 147 (2012) (SCALIA & GARNER)). Relatedly, under the last antecedent rule, “a limiting clause

or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.”

Barnhart v. Thomas, 540 U.S. 20, 26 (2003). Applying

either of these canons dictates that “any Alaska Native

village or regional or village corporation” qualifies as an

“Indian tribe” only if it 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); see also Confederated Tribes Mot. at

13 n.8. Because no ANC is so recognized as eligible for

the special programs and services provided by the

United States, the argument goes, no ANC is an “Indian

tribe” under ISDEAA.

The Secretary, on the other hand, urges the court to

look beyond the statute’s grammatical structure. He

argues that a blind application of the series-qualifier

canon would violate the “ ‘cardinal principle’ of statutory

interpretation”—that is, “to adopt a reading that gives

effect to every term in the statute.” Def.’s Opp’n at 7

(quoting Parker Drilling Mgmt. Servs., Ltd. v. Newton,

139 S. Ct. 1881, 1890 (2019)). Here, according to the

Secretary, Congress expressly inserted ANCs into the

statutory text, despite knowing that ANCs could not

satisfy the eligibility clause because of their status as

for-profit corporations. Subjecting ANCs to the eligi-

46a

bility clause therefore would negate their addition, rendering the inclusion of “Alaska Native [ ] regional or village corporation” surplusage.

Although a close question, the court is now convinced

that, in 2020 when Congress passed the CARES Act, it

could not have intended the eligibility clause to apply

ANCs. Several considerations lead the court to this result. First, while the Confederated Tribes Plaintiffs

emphasize the importance of the series-qualifier canon,

the court’s proper role is not to apply a single canon of

statutory construction—“canons of construction are no

more than rules of thumb that help courts determine the

meaning of legislation,” Conn. Nat’l Bank v. Germain,

503 U.S. 249, 253 (1992). The court must interpret the

statute as whole to give effect to congressional intent.

Parker Drilling, 139 S. Ct. at 1890. Consequently, the

court cannot simply disregard the inclusion of ANCs in

the definition that Congress chose for purposes of the

CARES Act. Second, the court’s interpretation is consistent with ISDEAA’s legislative history, which reveals

that Congress took pains to include ANCs in the ISDEAA definition. Third, to the extent the competing

canons of construction give rise to ambiguity, Skidmore

deference to the BIA’s interpretation of ISDEAA is

warranted, given the reasonableness of the agency’s approach and its longstanding adherence to it. The court

discusses each of these reasons below. Because the court

reads the eligibility clause as inapplicable to ANCs, the

court does not address the ANC’s alternative argument

that they satisfy the ordinary meaning of the eligibility

clause.

47a

Applying the series-qualifier canon in this case does

not resolve the statutory interpretation debate. “[A]s

with any canon of statutory interpretation,” the seriesqualifier canon “ ‘is not an absolute and can assuredly be

overcome by other indicia of meaning.’ ” Lockhart, 136

S. Ct. at 963, 965 (quoting Barnhart, 540 U.S. at 26).

Indeed, as the Tenth Circuit has observed, the seriesqualifier canon, “perhaps more than most canons, is subject to defeasance by other canons—that is, it is perhaps

more prone than most to have its effect nullified by

other canons.” Jordan v. Maxim Healthcare Servs.,

Inc., 950 F.3d 724, 745 (10th Cir. 2020) (cleaned up); see

also SCALIA & GARNER at 150 (“Perhaps more than

most of the other canons, [the series-qualifier canon] is

highly sensitive to context.”).

Such is the case here, where the series-qualifier

canon runs headlong into another canon of interpretation: the rule against superfluity. It is “the ‘cardinal

principle’ of interpretation that courts ‘must give effect,

if possible, to every clause and word of a statute.’ ”

Parker Drilling, 139 S. Ct. at 1890 (quoting Loughrin v.

United States, 573 U.S. 351, 358 (2014)). As a result,

courts are “reluctant to treat statutory terms as surplusage in any setting.” Duncan v. Walker, 533 U.S.

167, 174 (2001) (cleaned up). Such reluctance is particularly apt here, where adopting Plaintiffs’ construction

would render Congress’s purposeful inclusion of ANCs

in the ISDEAA definition “wholly superfluous.” Id. at

174. ANCs would become “wholly superfluous” under

the Confederated Tribes’ preferred reading, because all

agree (except the ANCs themselves) that ANCs never

48a

have, and almost certainly never will, satisfy the eligibility clause. ANCs cannot be 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) (emphasis added). ANCs, after all,

are for-profit corporations established by Congress and

recognized under Alaska law, and thus do not enjoy “status as Indians.” Indeed, under the Alaska Native Claims

Settlement Act, the statute that established ANCs by

extinguishing all aboriginal claims to Alaska land, the

transfer of land to the new, state-chartered private business corporations “was without any restraints on alienation or significant use restrictions” precisely because

Congress intended to avoid “ ‘any permanent racially defined institutions, rights, privileges, or obligations.’ ”

Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S.

520, 532-33 (1998) (quoting 43 U.S.C. § 1601(b)). Thus,

while the first ANC shareholders were required to be

Alaska Natives, the corporations could immediately convey former reservation lands and ANC stock to non-Natives. Id. at 533; 43 U.S.C. § 1606(h). It cannot be

said, then, that ANCs enjoy “status as Indians.”

Moreover, both the Secretary and the Confederated

Tribes read the eligibility clause as conveying the principle of federal recognition, which confers upon tribes a

distinct political and legal status in relation to the

United States. See 6/12/2020 Hr’g Tr. at 60; Confederated Tribes Mot. at 14-15. The Confederated Tribes

contend that ISDEAA’s eligibility clause must be read

in pari materia with the nearly identical language in the

Federally Recognized Indian Tribe List Act of 1994,

Pub. L. No. 103-454, 108 Stat. 4791, or List Act, which

directs the Secretary of Interior to publish a “list of all

Indian tribes that the Secretary recognizes to be eligible

49a

for the special programs and services provided by the

United States to Indians because of their status as Indians” (quoting 25 U.S.C. § 5131(a))). No ANC has ever

been federally recognized by the United States as an Indian tribe under the List Act because no ANC is “recognize[d] to be eligible for the special programs and services provided by the United States to Indians because

of [its] status as Indians.” The court agrees that the

nearly identically worded eligibility clauses in both statutes are terms of art that convey the principle of federal

recognition, and thus reading the eligibility clause to apply to ANCs would render as surplusage their listing in

the ISDEAA definition of “Indian tribe.”

The Confederated Tribes Plaintiffs attempt to sidestep this superfluity problem by asserting there is no

such problem to begin with. They contend that the disjunctive nature of the clause in which ANCs appear—

which they refer to as the “Alaska clause”—“means that

the clause has effect as long as ‘any Alaska Native village or regional or village corporation’ satisfies the

terms of the eligibility clause, and according to the Secretary of the Interior’s own listing there are 229 Native

villages[ 7] that do.” Confederated Tribes Opp’n at 8.

The court expressed a similar logic in its preliminary injunction opinion, writing that “[t]he possibility that

ANCs might not qualify under the eligibility clause is

hardly fatal to carrying out Congress’s purpose under

Alaska Native villages are not corporations. They are sovereign, political entities exercising governmental authority, much like

“ ‘Indian tribes,’ as that term is commonly used to refer to Indian

entities in the contiguous 48 states.” See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 58 Fed. Reg. 54,364, 54,365 1993 WL 420646

(October 21, 1993).

50a

ISDEAA . . . [because] [Alaska Native villages] are

also in the statute [and] [t]hey can and do satisfy the eligibility clause.”

Confederated Tribes, 2020 WL

1984297 at *11. The court is no longer convinced of this

rationale. ISDEAA says that “ ‘Indian tribe’ means

any . . . organized group or community, including

any Alaska Native [1] village or [2] regional [corporation] or [3] village corporation as defined in or established pursuant to [ANCSA].” 25 U.S.C. § 5304(e) (emphasis added). Congress thus intended for any of the

nouns in the Alaska clause to satisfy the definition, and

subjecting any of those nouns to a requirement that it

cannot meet—as Plaintiffs seek to do—would still turn

that noun into surplusage. The series-qualifier canon

therefore must give way in this case to the rule against

superfluity. 8

Plaintiffs’ cited authorities are not to the contrary.

Plaintiffs rely on Chickasaw Nation v. United States,

534 U.S. 84 (2001), and King v. Burwell, 135 S. Ct. 2480

(2015), for the proposition that “the canon against surplusage should [not] be elevated to Holy Grail status and

operate to subvert the plain meaning of the statutory

text.” Confederated Tribes Opp’n at 10. But these

cases are readily distinguishable. Chickasaw Nation

concerned a provision of the Indian Gaming Regulatory

Act that, like ISDEAA, featured an “including” clause

(akin to the Alaska clause) followed by a limiting clause

The Confederated Tribes Plaintiffs also suggest that applying the

eligibility clause to ANCs does not render them superfluous under

ISDEAA, because in 1975, when Congress passed the statute, it was

an open question whether ANCs could satisfy the eligibility clause.

Confederated Tribes Mot. at 31. The court addresses this argument in the following section.

51a

(akin to the eligibility clause). 534 U.S. at 86-87. The

Court there rejected the plaintiffs’ reliance on the canon

against surplusage and instead found that the limiting

clause applied to the words before it—to find otherwise

would “seriously rewrit[e] the language of the rest of the

statute.” Id. at 89. But critical to that conclusion was

the Court’s reasoning that the troublesome language in

the statute—a cross-reference to another chapter of the

Internal Revenue Code—was “simply a drafting mistake, a failure to delete an inappropriate cross-reference

in the bill that Congress later enacted into law.” Id. at

91.

The Court struck a similar chord in King v. Burwell.

That case involved the Affordable Care Act, which the

Court observed “contains more than a few examples of

inartful drafting” and, by virtue of how the legislation

was enacted, “does not reflect the type of care and deliberation that one might expect of such significant legislation.” 135 S. Ct. at 2492. In light of these shortcomings, the Court found “specifically with respect to

this Act, rigorous application of the [surplusage] canon

does not seem a particularly useful guide to a fair construction of the statute.” Id.

The reasons for discounting the surplusage canon

that were present in Chicksaw Nation and King v. Burwell simply are not present here. There is nothing

to suggest that Congress’s inclusion of ANCs in the

ISDEAA definition of “Indian tribe” was a drafting error; nor is there any reason to question the Legislative

Branch’s diligence in drafting the definition. To the

contrary, as discussed4 further below, the definition’s

legislative history reflects a conscious decision on the

part of Congress to make ANCs eligible to contract with

52a

the United States to deliver public services to Alaska

Native populations. Thus, while the “preference for

avoiding surplusage constructions is not absolute,”

Lamie v. United States Trustee, 540 U.S. 526, 536

(2004), there is no good reason to abandon it here.

Admittedly, reading the ISDEAA definition as the

Secretary posits gives rise to an odd grammatical result.

No one disputes that an “Alaska Native village”—the

first entity listed in the Alaska clause—must satisfy the

eligibility clause to qualify as an “Indian tribe” under

ISDEAA. See Confederated Tribes, 2020 WL 1984297

at *11. An Alaska Native village that is not “recognized as eligible for the special programs and services

provided by the United States to Indians because of

their status as Indians” cannot contract with a federal

agency under ISDEAA. That reading, however, creates the strange result that the eligibility clause modifies the first in the series of three nouns that comprises

the Alaska clause, but not the last two. That is an unnatural reading, to be sure. The court’s primary goal,

however, is to discern the “intent embodied in the statute Congress wrote.” Chicksaw Nation, 534 U.S. at 94.

Treating ANCs as not subject to the eligibility clause

achieves that purpose. Congress expressly included

ANCs in the definition of “Indian tribe” under ISDEAA

to make them eligible to enter into self-determination

contracts with federal agencies.

By incorporating

wholesale ISDEAA’s definition of “Indian Tribes” into

the CARES Act, Congress declared ANCs to be eligible

for Title V emergency relief funds.

53a

ISDEAA’s drafting history lends support to this conclusion. Neither the Senate’s nor the House of Representative’s initial versions of the ISDEAA definition of

“Indian tribe” included ANCs, though each included the

eligibility clause. See H.R. 6372, § 450b(b), 93rd Cong.,

1st Sess. (1973); S. 1017, 93d Cong., 2d Sess. (1974), 120

Cong. Rec. 2813-19; see also Cook Inlet Native Ass’n v.

Bowen, 810 F.2d 1471, 1474-75 (9th Cir. 1987) (discussing ISDEAA’s legislative history). The House Committee on Interior and Insular Affairs, to whom the Senate bill was referred, “amended the definition of ‘Indian

tribe’ to include regional and village corporations established by the Alaska Native Claims Settlement Act.”

H.R. Rep. 93-1600; 120 Cong. Rec. 40252 (Dec. 16, 1974).

The amended definition that became law, and remains

the same today, thus reads, “including any Alaska Native village or regional or village corporation as defined

in or established pursuant to the Alaska Native Claims

Settlement Act.” See Pub. L. 93-638 § 4(b), 88 Stat.

2203, 2204 (1975) (codified at 25 U.S.C. § 5304(e)).

Importantly, not only did the amended definition expressly include ANCs, the latter portion of the clause—

“established pursuant to [ANCSA]”—applies only to

ANCs. As the Secretary points out, while “native villages” are defined in ANCSA, only Alaska regional and

village corporations are “established” by it. See Def.’s

Opp’n at 5 & n.5 (citing H.R. Rep. 93-1600; 120 Cong.

Rec. 40252 (Dec. 16, 1974)). That Congress went out of

its way to add ANCs to the statutory definition of “Indian tribe” is compelling evidence that Congress intended ANCs to meet that definition. It would be an

odd result indeed for Congress to include ANCs in one

54a

breath only to negate their inclusion in the very next

breath through the eligibility clause.

The Confederated Tribes Plaintiffs endeavor to explain this ostensible statutory contradiction by positing

that Congress “left the door open” for ANCs to satisfy

the eligibility clause in ISDEAA, and only “over time”

has the Secretary of the Interior declared that ANCs

are not eligible for the special programs and services

provided by the United States to Indians because of

their status as Indians. Confederated Tribes Mot. at 31.

In support, Plaintiffs point to two comments submitted

in 1977—two years after Congress passed ISDEAA—to

proposed BIA regulations regarding the development of

uniform procedures for the recognition of Indian tribes.

Confederated Tribes Opp’n at 20-21. These comments,

submitted by two Alaska Native corporations, suggest

some uncertainty as to whether ANCs could satisfy the

eligibility clause. See id. But these isolated comments, from private enterprises, have little to no probative value in determining whether Congress in fact “left

the door open” for ANCs to satisfy the eligibility clause

when it passed ISDEAA. There is simply no legislative history before the court to support the notion that

Congress in 1975 believed ANCs could ever meet the eligibility clause.

Moreover, whether ANC eligibility remained an unsettled question in 1975 is ultimately a distraction. The

issue before the court is whether Congress meant for

ANCs to be eligible for CARES Act relief in 2020. The

Confederated Tribes Plaintiffs concede that by 1978,

when the BIA proposed revised regulations regarding

the recognition of Indian tribes that expressly excluded

ANCs, “the door was closed on [the] possibility” that

55a

ANCs could meet the eligibility clause. Confederated

Tribes Opp’n at 21-22; 6/12/2020 Hr’g Tr. at 21. And

certainly by 2020, Congress understood that no ANC

could satisfy the eligibility clause, as none had done so

since ISDEAA’s inception. 6/12/20202 Hr’g Tr. at 5960. Thus, by incorporating the ISDEAA definition into

the CARES Act, Congress must have known that it had

selected a definition of “Indian Tribe” that expressly encompasses ANCs, notwithstanding their falling outside

the definition’s eligibility clause. 9 Congress therefore

intended to make Title V funds available to ANCs.

The parties tussle over what inference can be drawn, if any, from

Congress’s selection of the ISDEAA definition of “Indian tribe,” as

opposed to some other statutory definition of “Indian tribe” appearing in the U.S. Code. See Intervenors’ Mot. at 28; Confederated

Tribes’ Opp’n 12. The answer is none. As the parties point out,

the U.S. Code contains multiple different definitions of “Indian

tribe.” Some of those definitions expressly include ANCs. See,

e.g., 20 U.S.C. § 1401(13) (defining “Indian tribe” as “any Federal or

State Indian tribe, band, rancheria, pueblo, colony, or community,

including any Alaska Native village or regional village corporation

(as defined in or established under the Alaska Native Claims Settlement Act. . . . )”). Some do not. See, e.g., 25 U.S.C. § 5130(2)

(“The term ‘Indian Tribe’ means any Indian or Alaska Native tribe,

band, nation, pueblo, village or community that the Secretary of the

Interior acknowledges to exist as an Indian Tribe.”). Some expressly exclude ANCs. See, e.g., 25 U.S.C. § 3501(4)(B) (“For the

purpose of paragraph (12) and sections 3503(b)(1)(C) and 3504 of this

title, the term ‘Indian Tribe’ does not include any Native Corporation.”). Some expressly include them. Of those definitions that expressly include ANCs, some incorporate a similarly worded eligibility clause. See, e.g., 25 U.S.C. § 4103(13)(B) (defining “federally recognized tribe” as “any Indian tribe, band, nation, or other organized

group or community of Indians, including any Alaska Native village

or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, that is recognized

56a

The court also concludes that, to the extent there is

ambiguity in the definition of “Indian tribe,” the Secretary’s position is entitled to Skidmore deference. Under Skidmore v. Swift & Co., the weight a court affords

to an agency interpretation “will depend upon the thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power

to persuade, if lacking power to control.” 323 U.S. 134,

140 (1944). Ultimately, a court upholds an agency determination under Skidmore to the extent is has “power

to persuade.” Christensen v. Harris Cty., 529 U.S.

576, 587 (2000) (internal quotation marks and citation

omitted); see also Davis v. United States, 495 U.S. 472,

as eligible for the special programs and services provided by the

United States to Indians because of their status as Indians pursuant

to the Indian Self-Determination and Education Assistance Act”).

Others do not. See, e.g., 16 U.S.C. § 470bb(5) (defining “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) [43 U.S.C. §§ 16011629h]”).

All this proves is that Congress, when it passed the CARES Act,

had other statutory definitions available to it that could have provided greater clarity about the eligibility of ANCs. Unfortunately,

this availability sheds no useful light on the dispute at hand. The

Alaska Federation of Natives amicus suggest a neat dichotomy

among the various statutory definitions: Congress includes ANCs

within the definition of “Indian tribe” when the statute concerns economic legislation, but not when it concerns tribal self-governance,

and the CARES Act falls into the former category. Amicus Br. of

the Alaska Federation of Natives, ECF No. 81, at 13-14. The court

need not pass on the merits of these proposed groupings, as the ordinary tools of statutory construction suffice to reach an answer.

57a

484 (1990) (“[W]e give an agency’s interpretations . . .

considerable weight where they involve the contemporaneous construction of a statute and where they have

been in long use.”).

The position that the Secretary advances in this case

is neither new nor cut from whole cloth. The Department of Interior, which administers the federal government’s affairs with Indian tribes, has long taken the position that ANCs qualify as “Indian Tribes” for purposes

of ISDEAA and therefore are permitted to contract with

federal agencies. In 1976, the year after ISDEAA was

enacted, the Assistant Solicitor for Indian Affairs, Charles

M. Soller, issued a memorandum to the Commissioner

of Indian Affairs that evaluated whether ANCs meet the

ISDEAA definition of “Indian tribe.” J.A., ECF No.

90-1, at 610-13 [hereinafter Soller Mem.] at 611. The

Commissioner had asked Soller to address “whether

[Alaska Native] village and regional corporations are

within the scope of ” ISDEAA. Id. at 610. The question arose due to the “qualifying language” in the statute’s definition of “Indian tribe,” i.e., the eligibility

clause. Id. at 611. Soller concluded that, “[s]ince both

regional and village corporations find express mention

in the definition, customary rules of statutory construction would indicate that they should be regarded as Indian tribes for purposes of application of this Act.” Id.

at 610. Soller acknowledged that the eligibility clause

added “qualifying language,” and he observed that “profitmaking regional and village corporations have not heretofore been recognized as eligible for [Bureau of Indian

Affairs] programs and services which are not provided

for by the terms of the Settlement Act.” Id. at 611.

But, Soller concluded,

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if the quoted language operates to disqualify [ANCs]

from the benefits of [ISDEAA], then their very mention in section 4(b) is superfluous. Therefore, we

think the better view is that Congress intended the

qualifying language not to apply to regional and village corporations but to pertain only to that part of

the paragraph which comes before the word “including.” Accordingly, regional and village corporations

are within the scope of the Act.

Id. 10

Thus, the argument against surplusage that the Secretary advances in this litigation has a long historical antecedent. It has been the position of the agency in charge

of Indian affairs for nearly 45 years. Although the

analysis is brief, Soller recognized the interpretive challenge presented by Congress’s drafting of the ISDEAA

definition, identified the competing canons of statutory

construction, and evaluated those canons in light of contemporaneous understandings of the statutory terms

used and Congress’s intent. The Soller Memorandum

therefore has the “power to persuade.” Christensen,

529 U.S. at 587 (citation omitted).

The Confederated Tribes Plaintiffs seek to undermine the force of the Soller Memorandum by faulting its

failure to consider the disjunctive nature of the Alaska

clause. See Confederated Tribes Opp’n at 18. But, as

Soller appears to have misspoken in one respect. To apply the

eligibility clause only to those words that appear “before the word

‘including’ ” would mean that the eligibility clause does not apply to

“Alaska Native village[s].” But no one then, or now, takes the position that an Alaska Native village can contract under ISDEAA

unless it satisfies the eligibility clause. See Confederated Tribes,

2020 WL 1984297 at *11.

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explained, the use of the disjunctive does nothing to save

the clause from superfluity. Soller’s ultimate reading

of the statute is reasonable. This was the conclusion of

the only appellate court to have considered whether

ANCs qualify as “Indian Tribes” for purposes of

ISDEAA. See Bowen, 810 F.2d at 1471. Although a single appellate decision cannot amount to a judicial consensus that the court can presume Congress knew of and

endorsed when it incorporated the ISDEAA definition

into the CARES Act, see Confederated Tribes, 2020 WL

1984297, at *12, Bowen lends additional persuasive force

to the agency’s longstanding view that ANCs are “Indian tribes” under ISDEAA. Thus, to the extent that

the ISDEAA definition of “Indian tribe” contains any

ambiguity, Skidmore counsels affording deference to

the agency’s interpretation.

The Confederated Tribes Plaintiffs go to great

lengths to cast the Department of Interior’s position on

ANCs under ISDEAA as inconsistent and lacking clarity. See Confederated Tribes Opp’n at 19-25. The

court need not take on this complex history. For present purposes, it suffices to say that the Confederated

Tribes have identified no point in time in last four decades in which the Department of Interior has not treated

ANCs as “Indian Tribes” for purposes of ISDEAA. 11

The most interesting evidence of different agency treatment of

ANCs is that, for a short period of time, from 1988 to 1994, the Department of Interior actually identified ANCs alongside federally

recognized tribes on its list of “Indian Entities Recognized and Eligible to Receive Services from [BIA].” Confederated Tribes Mot.

at 39 (citing 53 Fed. Reg. 52,829-02, 52,832-33 (Dec. 29, 1988)). The

BIA removed ANCs from the 1994 version of the list but in so doing

reaffirmed ANCs’ status as “Indian tribes” for purposes of ISDEAA.

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The BIA observed that “a number of non-tribal Native entities in

Alaska that currently contract with or receive services from the Bureau of Indian Affairs pursuant to specific statutory authority, including ANCSA village and regional corporations and various tribal

organizations,” were no longer on the list, but that their non-inclusion

on the list “does not affect the continued eligibility of the entities for

contracts and services.” Indian Entities Recognized and Eligible

to Receive Services from the United States Bureau of Indian Affairs,

58 FR 54,364, 54,366, 1993 WL 420646 (October 21, 1993) (emphasis

added). ANC’s on-and-off-again status on the BIA’s list, then, only

indicates that the BIA struggled with how to properly characterize

Alaska entities, but has always acknowledged their continued eligibility for certain contracts, including under ISDEAA.

This understanding comports with the 1977 Report submitted to

Congress by the American Indian Policy Review Commission. The

1977 Report made clear that while Alaska Native village and regional corporations are not “repositories of tribal sovereignty,” they

should not “be excluded from the benefits of existing and future legislation and programs designed to promote the development of Native peoples.” Def.’s Mot., Ex. 1, ECF No. 79-2, at 495. While the

Confederated Tribes Plaintiffs discount the 1977 Report as simply

one report submitted to Congress, with “no indication that Congress

ever agreed with these cursory and erroneous conclusions or has

taken any action in reliance on them,” Confederated Tribes Opp’n at

20, the court notes that the Report’s author, the American Indian

Policy Review Commission, was established through Congressional

resolution and was composed of three senators, three members of

the House of Representatives, and five Indian leaders. American

Indian Policy Review Commission, Final Report (May 17, 1977) (Appendix A (“How the Commission Did Its Work”) at 3, available at

https://catalog.hathitrust.org/Record/011340209. Further, the investigations that contributed to the Report were conducted by eleven

task forces “each composed of three members selected from among

the leading authorities in their respective fields of expertise in Indian affairs.” Id. The Commission’s Report, “a product of Indian

participation, represent[s] ‘a compendium of information on a scale

heretofore unavailable to the Federal Government’ ” and “represent[s] the most comprehensive review of Indian policies and programs ever conducted.” Id. at 4. See also Cheyenne River Sioux

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As noted at the outset of this discussion, the Cheyenne River Sioux Plaintiffs do not dispute that ANCs

qualify as “Indian tribes” under ISDEAA. But they do

seek to diminish their role and status, explaining that

ANCs have “limited tribal status” under certain narrow

circumstances. See Cheyenne River Sioux Mot. at 1417. Relying on agency contracting priority policies, they

contend that “ANCs may qualify under ISDEAA’s definition of ‘Indian tribe’ only as a stop-gap to ensure critical services are provided to Alaska Natives in regions

where there are no actual federally recognized Tribal

governments, or where Tribal governments choose to

compact with ANCs to provide services under ISDEAA.”

Id. at 14. The court has no reason to doubt the accuracy of that characterization. But ANCs’ status as a

contracting partner of “last resort” only underscores

that ANCs are nevertheless eligible for ISDEAA contracts.

For definitional purposes, ANCs are not

considered “Indian tribes” only as a last resort under

ISDEAA; they are always “Indian tribes.” The same

thus holds true under the CARES Act.

Before moving on, the court must address some of the

reasons it set forth in its preliminary injunction opinion

when ruling that Plaintiffs were likely to succeed on the

merits. Of course, the “findings of fact and conclusions

of law made by a court granting a preliminary injunction

Mot. at 16 n.14 (explaining that the Department of the Interior “still

relies [on] this [1977] Report”). Thus, the court has no reason to

doubt the accuracy of the 1977 Report generally and considers the

Report as providing some evidence that, close to the time of IDEAA’s

enactment, Congress understood ISDEAA to treat ANCs as “eligible” Indian tribes.

62a

are not binding at trial on the merits,” see Univ. of Texas

v. Camenisch, 451 U.S. 390, 395 (1981), and the additional

briefing in this case has convinced the court to change

its mind.

First, the court described the Secretary’s reading of

ISDEAA as “counter-textual.” Confederated Tribes,

2020 WL 1984297, at *11. The court no longer ascribes

to that view for the reasons already discussed. Second,

the court deemed inconsistent and unexplained the government’s position taken in other cases, but not here,

that “the definition of ‘Indian tribe’ in various federal

statutes must be read in conjunction with the List Act.

In other words, unless the entity or group appears on

the Interior Secretary’s List, it does not qualify as an

‘Indian tribe.’ ” Id. at *12-13 (citing Wyandot Nation

of Kan. v. United States, 858 F.3d 1392, 1396, 1397-98

(Fed. Cir. 2017); Slockish v. U.S. Fed. Highway Admin.,

682 F. Supp. 2d 1178, 1202 (D. Or. 2010)). As the Secretary now points out, Wyandot and Slockish were cases

that did not involve ANCs but entities claiming tribal

status even though not federally recognized. Def.’s Mot.

at 19-20. It was therefore appropriate in those cases

for the government to insist on identification on the Interior Department’s List, whereas the same insistence

is not necessary here, because ANCs are already

treated as “Indian tribes” for purposes of ISDEAA.

Finally, the court reasoned that “Congress’s adoption of

the ISDEAA definition cannot be divorced from actual

agency practice under ISDEAA, which seemingly is to

contract with ANCs only, if at all, with tribal consent or

as a last resort.” Id. at *13. The flaw in that logic is

now apparent. Even if actual agency practice is to

rarely contract with ANCs to deliver services under ISDEAA, the fact remains that ANCs are “Indian tribes”

63a

for purposes of ISDEAA contracting eligibility. By

importing ISDEAA’s definition into the CARES Act,

Congress carried forward that same treatment. 12

* * *

Accordingly, the court holds that Alaska Native village and regional corporations meet ISDEAA’s definition of “Indian tribe,” and therefore ANCs qualify as

“Indian tribes” for the purposes of CARES Act funding.

“Recognized Governing Bodies” under ISDEAA

Having concluded that ANCs qualify as “Indian tribes”

under ISDEAA, the court now turns to the second question: Are ANCs “recognized governing bod[ies],” or do

they have such bodies? Remember, Title V provides

that the Secretary shall make payments only to “the

recognized governing bod[ies]” of Indian Tribes. See

42 U.S.C. § 801(g)(5). The parties dispute whether

“recognized” is a legal term of art meaning “federally

recognized”—in which case, only federally recognized

tribes, and not ANCs, meet the definition—or whether

it carries an ordinary meaning. Confederated Tribes

Mot. at 19; Cheyenne River Sioux Opp’n at 7-8; Def.’s

Opp’n at 31-32; Intervenors’ Opp’n. at 16-17. They also

dispute whether “governing body” refers to “government status or attributes of sovereignty,” see Cheyenne

The decision whether to award ANCs Title V funds in proportion

to their status as a service provider of “last resort” is an allocation

determination that rests squarely within the broad discretion that

Congress vested in the Secretary. See generally Prairie Band Potawatomi Nation v. Mnuchin, No. 20-cv-1491 (APM), 2020 WL 3402298,

at *1-2 (D.D.C. June 11, 2020) (holding that the Secretary’s selected

allocation method under Title V of the CARES Act is an unreviewable discretionary agency action under the APA).

64a

River Sioux Mot. at 4, or whether it “simply references

the entity or individuals authorized to govern the organization in its charter or other organizing documents,” Intervenors’ Opp’n at 15.

In evaluating the parties’ arguments, ISDEAA once

more serves as the starting point. ISDEAA authorizes

the federal government to contract not with an Indian

tribe, but with a tribal organization, to deliver public services. 25 U.S.C. § 5321. ISDEAA defines “tribal organization” in two ways: (1) “the recognized governing

body of any Indian tribe”; and

(2) any legally established organization of Indians

which is controlled, sanctioned, or chartered by such

governing body or which is democratically elected by

the adult members of the Indian community to be

served by such organization and which includes the

maximum participation of Indians in all phases of its

activities: Provided, That in any case where a contract is let or grant made to an organization to perform services benefiting more than one Indian tribe,

the approval of each such Indian tribe shall be a prerequisite to the letting or making of such contract or

grant.

25 U.S.C. § 5304(l). The first definition of “tribal organization” should ring familiar as Congress used almost the same exact words to define “Tribal government” for purposes of the CARES Act. Compare id.

with 42 U.S.C. § 801(g)(5) (“The term ‘Tribal government’ means the recognized governing body of an Indian

Tribe.”). The ISDEAA definition of “tribal organization” is therefore instructive in understanding the term

“Tribal government” under the CARES Act. See Branch

v. Smith, 538 U.S. 254, 281 (2003) (explaining that “courts

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do not interpret statutes in isolation, but in the context

of the corpus juris of which they are a part”).

All parties, even the Confederated Tribe Plaintiffs,

concede that ANCs may enter into ISDEAA contracts.

See Confederated Tribes Mot. at 36 (describing ANC

contracting under ISDEAA as occurring in “exceptional” or “narrow” circumstances). Thus, to enjoy

such status, ANCs, or some constituent part of them,

necessarily must meet at least one of ISDEAA’s two definitions of “Tribal organization,” because only a “tribal

organization” may enter into an ISDEAA contract, see

25 U.S.C. § 5321(a)(1). The Plaintiffs part ways on

which of the two definitions apply. The Cheyenne

River Sioux Plaintiffs say that ANCs satisfy the first

definition of “tribal organization”—“the recognized governing body of any Indian tribe”; yet they resist the logical next step that ANCs also are, or have, a “recognized

governing body” for purposes of the CARES Act, even

though the two statutes use the exact same terms. The

Confederated Tribes Plaintiffs attempt to dodge this

trap. They argue that ANCs fall into the second,

longer definition of “tribal organization,” which Congress did not incorporate into the CARES Act. See id.

at 35. In their view, ANCs qualify as “tribal organization[s]” only because they are a “legally established organizations of Indians . . . sanctioned by” the governing body of an Indian tribe, in this case, “a Native

village.” 6/12/2020 Hr’g Tr. at 14. This reading, in

their view, harmonizes how ANCs are not, or do not

have, a “recognized governing body,” but still can enter

into ISDEAA contracts as a “tribal organization.” Id.

The court takes Plaintiffs’ arguments in reverse order.

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The Confederated Tribes’ reading cannot be squared

with ISDEAA’s text. ANCs are not “controlled, sanctioned, or chartered” by the governing body of an Indian

Tribe. 13 ANCs are corporate entities established by

Congress and chartered under Alaska state law. See

generally 43 U.S.C. § 1601 et seq. Though the ISDEAA

definition of “tribal organization” uses the word “sanctioned,” it does not use that term in the sense of tribal

approval of ISDEAA contracts. The term “sanction”

in the definition of “tribal organization” is entirely disconnected from contract approval. It is true, as the

Confederated Tribes Plaintiffs point out, that ANCs ordinarily obtain the approval of governing bodies of Native Villages as a condition of ISDEAA contracts. But

that requirement stems not from the word “sanctioned,”

but rather from the “Provided” clause found later in the

definition: “in any case where a contract is let or grant

made to an organization to perform services benefiting

more than one Indian tribe, the approval of each such

Indian tribe shall be a prerequisite to the letting or

making of such contract or grant.” 25 U.S.C. § 5304(l)

(emphasis added). Thus, if an ANC seeks to enter into

a contract that benefits a Native Village, it must logically obtain the approval of that Native Village’s governing body as a condition of doing so. 14

Nor do they satisfy the second half of the second “tribal organization” definition: ANCs are not “democratically elected by the

adult members of the Indian community to be served by such organization.” 25 U.S.C. § 5304(l).

Plaintiffs make the point that, absent specific approval from a

Tribal government, an ANC can receive an ISDEAA contract “[o]nly

if a Tribal government does not exist for a specific area.” Cheyenne River Sioux Mot. at 17; 6/12/2020 Hr’g Tr. at 40; see also Confederated Tribes Mot. at 36. This fact only underscores that

67a

This interpretation of ISDEAA is consistent with the

longstanding view of the Department of Interior. As

the Soller Memorandum explains, ANCs as “Indian

tribes” under ISDEAA can seek self-determination contracts on their own behalf, and their boards of directors

qualify as the “governing body” for such purposes. See

Soller Mem. at 611 (stating that “regional and village

corporations may request to contract for the provision

of BIA services under section 102 of the Act”). The

Memorandum further recognizes that, as a practical

matter, ANCs almost always must obtain tribal consent

because such self-determination contracts are likely in

some way to be for the benefit of one or more Native

Villages, rather than the corporation itself. Id. at 612

(“[T]he language of the Act is unambiguous. If a contract or grant benefits more than one village or village

corporation, the approval of each must be obtained.”);

id. (“Indeed, it is not clear to us what it means for a contract to ‘benefit’ a village corporation, as opposed to the

Native village. . . . However, it does seem clear that

if a contract is let to a regional tribal organization for

the purpose of providing services in a given village, some

governing body in that village must approve that contract.”).15 Thus, under a straightforward reading of

ANCs must fit under the first category of “tribal organization,”

because in these circumstances—limited though they may be—

there is no Tribe to “sanction” the ISDEAA contract. That such

ISDEAA contracts arise only as a “last resort” or in “exceptional

circumstances” is of no moment. Nothing in the text of the statute limits ANCs’ functioning as, or having, “recognized governing

bodies” only to these “last resort” circumstances.

The sole case that the Confederated Tribes Plaintiffs cite,

Ukpeagvik Inupiat Corp. (“UIC”) v. U.S. Dep’t of Health and Human Svcs, No. 3:13-cv-00073-TMB, 2013 WL 12119576 (D. Alaska

68a

“tribal organization,” ANCs must be eligible for contracting under the first definition of “tribal organization”—

“the recognized governing body of any Indian tribe.”

25 U.S.C. § 5304(l). 16 And by the terms of that definition, they must have a “recognized governing body” for

purposes of ISDEAA. If ANCs have a “recognized

governing body” for purposes of ISDEAA, it stands to

reason that Congress brought that same meaning forward in the CARES Act, as the first definition of “tribal

organization” in ISDEAA and the definition of “Tribal

government” in the CARES Act are essentially identical. See Branch, 538 U.S. at 281.

Plaintiffs resist this logic. They contend that Congress’s use of the word “recognized” was intended as a

May 20, 2013), at *2–3), does not help them. There, an ANC obtained

a contract to provide services at a hospital. Of the approvals it obtained, two were from other ANCs and one was from the contracting

ANC itself. 2013 WL 12119576 at *1 & n.5 (listing, in addition to UIC

(the contracting ANC), Atqasuk Village Corporation and Kuukpik

Village Corporation). This case thus supports the understanding

that ANCs are “Indian Tribes.” Otherwise, the ANCs’ “approvals”

would not have been required under the proviso in ISDEAA’s definition of “tribal organization.” See 25 U.S.C. § 5304(l) (“[I]n any

case where a contract is let or grant made to an organization to perform services benefitting more than one Indian tribe, the approval

of each such Indian tribe shall be a prerequisite.”) (emphasis added).

ANCs plainly fall under the first definition for another reason.

If, as the Confederated Tribes Plaintiffs contend, they fall under the

second definition of “Tribal organization,” there would have been no

need to expressly include them in the definition of “Indian Tribe,”

see 25 U.S.C. § 5304(e), because ANCs could simply contract under

the second definition, see id. § 5304(l). Accepting the Confederated

Tribes Plaintiffs’ position would thus render ANCs’ inclusion in the

“Indian Tribe” definition surplusage twice over.

69a

term of art, meant to convey the unique political and legal status afforded to federally recognized tribes. See

Confederated Tribes Mot. at 21-23; Cheyenne River

Sioux Opp’n at 6-8. The Confederated Tribes Plaintiffs, for example, point to a federal regulation that defines “[r]ecognized governing body” as “the tribe’s governing body recognized by the Bureau [of Indian Affairs] for the purposes of government-to-government

relations.” Confederated Tribes Mot. at 21 (quoting 25

C.F.R. § 81.4). But that regulation by its own terms

“applies only to federally recognized tribes,” id. § 81.2,

because the regulation concerns election procedures to

“adopt, amend, or revoke tribal governing documents”

and charters, id. § 81.1. It is unsurprising, then, that

ANCs would not be included in such a regulation.

Likewise, the Cheyenne River Sioux Plaintiffs point to a

slew of cases holding that ANCs are not “governing bodies” or “tribal governments.” See Cheyenne River

Sioux Mot. at 11-12 (collecting cases); Cheyenne River

Sioux Opp’n at 6-8; see also Confederated Tribes Mot. at

22-23 (same). Not only are these cases from nonISDEAA contexts, they concern a proposition that is

simply not at issue here; no one disputes that ANCs are

not Tribal governments in the traditional sense. This

case concerns the entirely separate question whether

ANCs have “recognized governing bodies” for purposes

of the CARES Act. See Mohamad v. Palestinian

Auth., 566 U.S. 449, 455 (2012) (“Congress remains free,

as always, to give [a] word a broader or different meaning” than the one suggested by the word’s plain meaning.).

On this question, while the court agreed with Plaintiffs’ argument at the preliminary injunction stage, see

70a

Confederated Tribes, 2020 WL 1984297, at *10, upon further reflection the court now concludes the opposite—

“recognized” standing alone, as it is used in the CARES

Act’s definition of “Tribal government,” does not convey

federal recognition of an Indian tribe. The best evidence of this reading is that Congress used nearly the

exact same words, “recognized governing body of any

Indian tribe,” found in the first definition of “tribal organization” in ISDEAA, 25 U.S.C. § 5304(l). While the

Cheyenne River Sioux Plaintiffs point out that the

CARES Act incorporated only ISDEAA’s definition of

“Indian Tribe” and did not import ISDEAA “whole

cloth,” 6/12/2020 Hr’g Tr. at 120, ISDEAA nevertheless

demonstrates that when Congress uses the word “recognized,” or even “recognized governing body,” it does

not a fortiori mean “federally recognized.” “Recognition” is not used as a term of art in the IDEAA definition

of “tribal organization”; 17 it follows that the same is true

under the CARES Act.

Another interpretive clue leads to this conclusion.

The Cheyenne River Sioux’s reading, if accepted, would

produce the result that Congress expressly granted eligibility in one definition under the CARES Act—by incorporating the ISDEAA definition of “Indian tribe”—but silently took it away in another—by excluding ANCs from

Relevant agencies have long understood this. Under the 1981

guidelines promulgated by Interior and HHS, for example, ANCs

can be “recognize[d] as the village governing body” for “the purposes

of contracting under Pub. L. 93-628 [ISDEAA].” 46 Fed. Reg.

27,178-02, 27,179 (May 18, 1981). And the 1988 list of Tribes published by Interior described ANCs as “Alaska entities which are recognized and eligible to receive funding and services from the Bureau

of Indian Affairs.” 53 Fed. Reg. at 52,832 (emphasis added).

71a

the definition of “Tribal government.” It would be passing strange to exclude ANCs so obliquely, and the court

cannot presume that Congress intended such a result.

Finally, and contrary to what the court previously

concluded, see Confederated Tribes, 2020 WL 1984297,

at *10, Plaintiffs’ appeal to statutory context is ultimately not convincing. Specifically, they contend that

the statute’s “definition of ‘Tribal government’ must be

read in th[e] context” of Title V of the CARES Act,

which they argue is “directed to sovereign governments

and their political subdivisions.” Confederated Tribes

Mot. at 24; see also Cheyenne River Sioux Mot. at 2 (emphasizing that the CARES Act uses the term “Tribal

governments” “15 times in just over three pages”).

But there is nothing inconsistent with treating ANCs

alongside tribal governments for these limited purposes.

ISDEAA is aimed at providing government services—

including health care—to Indians by partnering with

Tribal organizations, including, at times, ANCs. It

stands to reason that Congress, in its effort to distribute

emergency funds quickly to Indians under the CARES

Act, intended to get those dollars in the hands of the

same entities that deliver public services to Indians.

In the lower 48 states, those entities are largely Tribal

governments in the traditional sense, but in Alaska,

those entities include Alaska Native village and regional

corporations. See Intervenors’ Mot. at 14-18. ANCs’

inclusion in Title V alongside other types of traditional

governments is therefore not incongruous with Congress’s

purpose of appropriating emergency funds for “governments” to deliver public services to address and manage

a national health emergency. In the end, the question

before the court is whether ANCs are “Tribal govern-

72a

ments” for the limited purpose of delivering public services to combat the COVID-19 pandemic. For all the

foregoing reasons, they are.

* * *

Before concluding, the court addresses Plaintiffs’ concern that deeming ANCs eligible for Title V funding will

enact a sea-change in Tribal law. See, e.g., 6/12/2020 Hr’g

Tr. at 42-43. Not so. The court does no more than opine

on the status of ANCs under ISDEAA and the CARES

Act, and it reaches a holding that is consistent with

longstanding treatment of ANCs under ISDEAA by the

federal government. The court’s ruling in no way elevates ANCs to “super-tribal status” as the Confederated

Tribes Plaintiffs maintain, Confederated Tribes Opp’n at

10; nor does it allow ANCs to “compete” with federally

recognized tribes in any other context as the Cheyenne

River Sioux Plaintiffs fear, Cheyenne River Sioux Mot. at

12. The court’s decision simply recognizes that ANCs

are eligible for CARES Act funds, as Congress intended—

no more, no less.

IV.

For the foregoing reasons, the court grants the Secretary’s and Defendant-Intervenors’ Motions for Summary Judgment, ECF Nos. 78 and 79, and denies Plaintiffs’ Motions for Summary Judgment, ECF Nos. 76 and

77. A final, appealable Order accompanies this Memorandum Opinion.

Dated:

June 26, 2020

/s/ AMIT P. MEHTA

AMIT P. MEHTA

United States District Court Judge

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 20-5204

Consolidated with 20-5205 and 20-5209

CONFEDERATED TRIBES OF THE CHEHALIS

RESERVATION, ET AL., APPELLEES

UTE TRIBE OF THE UINTAH AND OURAY INDIAN

RESERVATION, APPELLANT

STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF U.S. DEPARTMENT OF THE TREASURY,

ET AL., APPELLEES

Filed: Sept. 30, 2020

September Term, 2020

No. 1:20-cv-01002-APM

No. 1:20-cv-01059-APM

No. 1:20-cv-01070-APM

ORDER

BEFORE:

Circuit Judges

HENDERSON*, 1 MILLETT, and KATSAS,

Circuit Judge Henderson would deny the motion.

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Upon consideration of the emergency motion to suspend statutory lapse of appropriation and extend budget

authority, the responses thereto, and the replies, it is

ORDERED that to ensure an opportunity for orderly

review of this Court’s September 25, 2020 decision, as

well as the government’s ability to disburse the disputed

funds upon completion of the litigation, any expiration

of the appropriation for Tribal governments set forth in

42 U.S.C. 801(a)(2)(B) is hereby suspended. See Nat’l

Ass’n of Reg’l Councils v. Costle, 564 F.2d 583, 588 (D.C.

Cir. 1977). It is

FURTHER ORDERED that this order will expire at

5:00 p.m. on October 30, 2020, unless the federal government or the intervenor-appellees has by then filed either

a petition for rehearing en banc or for a writ of certiorari

seeking review of this Court’s decision, in which case

this order will remain effective until seven days after final action by this Court or the Supreme Court.

Per Curiam

FOR THE COURT:

BY:

/s/

Mark J. Langer, Clerk

Amanda Himes

Deputy Clerk

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APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 20-5204

Consolidated with 20-5205 and 20-5209

CONFEDERATED TRIBES OF THE CHEHALIS

RESERVATION, ET AL., APPELLEES

UTE TRIBE OF THE UINTAH AND OURAY INDIAN

RESERVATION, APPELLANT

STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF U.S. DEPARTMENT OF THE TREASURY,

ET AL., APPELLEES

Filed: Sept. 14, 2020

September Term, 2020

No. 1:20-cv-01002-APM

No. 1:20-cv-01059-APM

No. 1:20-cv-01070-APM

ORDER

BEFORE:

Circuit Judges

HENDERSON, MILLETT, and KATSAS,

On July 7, 2020, the district court issued a memorandum opinion staying its June 26, 2020 order until the

earlier of September 15, 2020, or resolution of this matter by this court. Upon consideration of the foregoing,

it is

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ORDERED, on the court’s own motion, that the Secretary of the Treasury be enjoined from disbursing or

otherwise paying Title V funds to any Alaska Native regional or village corporations pending resolution of

these consolidated appeals.

Per Curiam

FOR THE COURT:

BY:

/s/

Mark J. Langer, Clerk

Michael C. McGrail

Deputy Clerk

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APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Case No. 20-cv-01002 (APM)

CONFEDERATED TRIBES OF THE CHEHALIS

RESERVATION, ET AL., PLAINTIFFS

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, DEFENDANT

Case No. 20-cv-01059 (APM)

CHEYENNE RIVER SIOUX TRIBE, ET AL., PLAINTIFFS

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, DEFENDANT

Case No. 20-cv-01070 (APM)

UTE TRIBE OF THE UINTAH AND OURAY

RESERVATION, PLAINTIFF

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, DEFENDANT

Filed:

July 7, 2020

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MEMORANDUM OPINION AND ORDER

On June 26, 2020, the court ruled that Alaska Native

regional and village corporations (“ANCs”) are eligible

to receive emergency relief funds appropriated by Congress under Title V of the Coronavirus Aid, Relief, and

Economic Security Act, or CARES Act. See Confederated Tribes of Chehalis Reservation v. Mnuchin, No.

20-cv-01002 (APM), 2020 WL 3489479 (D.D.C. June 26,

2020). The court accordingly entered judgment in favor of Defendant Secretary of the U.S. Department of

the Treasury and the ANC Defendant-Intervenors, and

dissolved the preliminary injunction that, until then, had

prevented the Secretary from disbursing Title V funds

to ANCs. See Order, ECF No. 98. The Confederated

Tribes of the Chehalis Reservation Plaintiffs now ask

the court to stay its judgment pending appeal. Pls.’

Mot. for Injunction Pending Appeal and Mem. of P. &

A., ECF No. 99 [hereinafter Pls.’ Mot.]. 1 Specifically,

they seek an injunction that prohibits the Secretary

from “disbursing or otherwise paying Title V funds to

any [ANC], until further order of this Court or by order

of the Court of Appeals for the District of Columbia Circuit.” Proposed Order, ECF No. 99-1, at 2. For the

reasons that follow, the requested injunctive relief is

Plaintiff Ute Indian Tribe of the Uintah and Ouray Reservation

join in the Confederated Tribes Plaintiffs’ motion. See Ute Indian

Tribe’s Joinder in “Mot. for Leave to File Injunction Pending Appeal,” ECF No. 100.

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granted, subject to the condition that Plaintiffs file a notice of appeal and a motion for expedited review by July

14, 2020.

II.

This court set forth the standard governing a motion

for injunction pending appeal in Cigar Association of

America v. FDA, 317 F. Supp. 3d 555, 560-61 (D.D.C.

2018). The court need not repeat that discussion here

but incorporates it by reference, and proceeds directly

to the four injunction factors it must consider on a sliding scale.

First, Plaintiffs have presented “serious legal questions going to the merits, so serious, substantial, difficult as to make them a fair ground of litigation and thus

for more deliberative investigation.” Population Inst.

v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986)

(quoting Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977)).

Although the court ultimately ruled in Defendants’ favor, it observed that “this case does not present easy,

straightforward questions of statutory interpretation,”

and it “wrestled” with the decision it made. Confederated Tribes, 2020 WL 3489479, at *6. The proper application of the competing canons of interpretation to Title V’s relevant statutory terms alone warrants additional scrutiny, and the “impressive array of textual, historical, and practical evidence” amassed by the parties,

“all of which must be viewed against the unique treatment of Native Alaskans by Congress and Executive

Branch agencies,” only counsels in favor of further review. Id. Because the question of statutory interpretation presented in this case is as complicated as it is

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consequential, it deserves an audience before a higher

court while maintaining the status quo. 2

Second, Plaintiffs would suffer irreparable harm if

the court denied injunctive relief and the Secretary then

distributed the withheld Title V funds to ANCs. Such

payments could result in this case becoming moot before

receiving a full hearing before the D.C. Circuit. See

City of Houston. v. Dep’t of Hous. & Urban Dev., 24 F.3d

1421, 1424 (D.C. Cir. 1994) (“It is a well-settled matter

of constitutional law that when an appropriation has

lapsed or has been fully obligated, federal courts cannot

order the expenditure of funds that were covered by

that appropriation.”); Ambach v. Bell, 686 F.2d 974, 986

(D.C. Cir. 1982) (holding that “interim relief ” was proper where plaintiff States challenged the agency’s formula for distributing education funding, because, “[o]nce

the . . . funds are distributed to the States and obligated, they cannot be recouped”). Given the complexity and significance of the questions presented, this

court should not have the last say on this matter. Defendants respond that the harm Plaintiffs faced at the

preliminary injunction stage is now greatly diminished

because they have received approximately 90% of the

CARES Act funding to which they are entitled. Opp’n

to Pls.’ Mot. for Inj. Pending Appeal of Intervenor-Defendants Alaska Native Village Corp. Assoc., Inc., and

Assoc. of ANCSA Regional Corp. Presidents/CEO’s,

To varying degrees, the parties have sought to revisit the merits of the court’s decision. See, e.g., Pls.’ Mot. at 6-12; Def,’s Opp’n

to Pls.’ Mot. for Inj. Pending Appeal, ECF No. 103, at 5-13. Wading into those thorny issues once more is neither desirable nor necessary. It suffices to say that the questions Plaintiffs have raised

are sufficiently “substantial” to warrant an injunction pending appeal.

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Inc., ECF No. 104, at 8. Yet, there remains hundreds

of millions of dollars in dispute. And, although not all

of those funds would go to these Plaintiffs if they were

to prevail, the lesser amount at stake would not make

the lost chance at appellate review sting any less.

Third, the final two factors taken together—the balance of equities and the public interest—cannot overcome the reasons favoring injunctive relief. See Nken

v. Holder, 556 U.S. 418, 434 (2009) (“The first two factors

of the traditional standard are the most critical.”); id. at

435 (observing that the third and fourth factors “merge”

when the government is the opposing party). To be

sure, the ANCs and, more importantly, the constituencies they serve will suffer some injury from additional

delay in receiving Title V funds. However, the public

interest also rests in carrying out Congress’s will, and

that interest is not served if ANCs receive and spend

tens of millions of dollars of emergency relief to which

they are not entitled. See League of Women Voters of

United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)

(stating that “there is a substantial public interest in

having governmental agencies abide by the federal laws

that govern their existence and operations” (internal

quotation marks and citation omitted)). Although this

court has concluded that ANCs are eligible for those

funds, the public interest rests with the D.C. Circuit deciding whether this court got it right.

In summary, the injunction factors, applied on a sliding scale, favor granting Plaintiffs’ request for an injunction pending appeal.

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III.

The Calista ANC-Intervenor Defendants urge the

court, in effect, to punt Plaintiffs’ request for injunctive

relief to the D.C. Circuit. See Opp’n to Pls.’ Mot. to

Stay Judgment Pending Appeal, ECF No. 102 [hereinafter Calista Mot.] at 2 (“In all events, this Court is the

wrong court to grant the relief that plaintiffs seek.”).

The court declines to do so. This court has an independent obligation to consider Plaintiffs’ motion, see

Fed. R. Civ. P. 62(d); Fed. R. App. P. 8(a)(1), and it must

discharge that responsibility. That said, the Calista

ANC-Intervenor Defendants are right to be concerned

that a delayed appeal would defeat the very purposes for

which Congress appropriated CARES Act funds on an

emergency basis. See Calista Mot. at 2-3. The Confederated Tribes Plaintiffs have not suggested that they

intend to delay prosecuting an appeal; to the contrary,

they have said they will pursue expedited review. See

Pls.’ Mot. at 2 n.1. Nevertheless, to ensure prompt appellate consideration, the court will condition the requested stay on Plaintiffs’ filing both a notice of appeal

and a motion for expedited review before the D.C. Circuit by no later than July 14, 2020. See Ctr. for Int’l

Envtl. Law v. Office of the U.S. Trade Representative,

240 F. Supp. 2d 21, 23 & n.1 (D.D.C. 2003) (granting injunction pending appeal conditioned on seeking expedited review); accord Charles v. Office of the Armed

Forces Medical Examiner, Civil Action No. 1:09-cv-0199

(KBJ), 2013 WL 12332949, at *2 (D.D.C. May 9, 2013).

If Plaintiffs fail to move on an expedited basis, the stay

will expire.

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IV.

For the foregoing reasons, the Confederated Tribes

Plaintiffs’ Motion for Injunction Pending Appeal, ECF

No. 99, is hereby granted, subject to one condition.

The court’s Order of June 26, 2020, ECF No. 98, is

hereby stayed until the earlier of September 15, 2020, or

resolution of this matter by a three-judge panel of the

D.C. Circuit, so long as Plaintiffs file a notice of appeal

and seek expedited review by July 14, 2020. If Plaintiffs do not timely satisfy this condition, the injunction

pending appeal shall expire on July 15, 2020. If the

D.C. Circuit has not resolved this case by September 15,

2020, this order may be extended upon motion by a party

or by the D.C. Circuit. Any motion filed before this

court shall address whether Title V funds will expire if

the D.C. Circuit does not issue a decision by September

30, 2020.

Dated:

July 7, 2020

/s/ AMIT P. MEHTA

AMIT P. MEHTA

United States District Court Judge

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APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Case No. 20-cv-01002 (APM)

CONFEDERATED TRIBES OF THE CHEHALIS

RESERVATION, ET AL., PLAINTIFFS

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, DEFENDANT

Case No. 20-cv-01059 (APM)

CHEYENNE RIVER SIOUX TRIBE, ET AL., PLAINTIFFS

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, DEFENDANT

Case No. 20-cv-01070 (APM)

UTE TRIBE OF THE UINTAH AND OURAY

RESERVATION, PLAINTIFF

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE TREASURY, DEFENDANT

Filed:

Apr. 27, 2020

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MEMORANDUM OPINION

Under Title V of the Coronavirus Aid, Relief, and

Economic Security Act, or CARES Act, Congress set

aside $8 billion in emergency aid for “Tribal governments” to combat the coronavirus pandemic. This case

concerns what it means to be a “Tribal government” for

the purpose of receiving Title V funds.

Plaintiffs are a group of federally recognized tribes

from the lower 48 states and Alaska. They unquestionably qualify to receive some portion of the emergency

relief set aside under Title V of the CARES Act. What

Plaintiffs fear, however, is that the Secretary of the Treasury, who Congress authorized to disburse the monies, is

about to give away a significant percentage of the $8 billion to what are known as Alaska Native regional and

village corporations, or ANCs. ANCs are for-profit

corporations recognized under Alaska law that were established by Congress as part of the Alaska Native

Claims Settlement Act. The Secretary of Treasury has

announced that ANCs are eligible to receive Title V

funds, although he has yet to identify which ANCs will

receive funds or how much. The Secretary intends to

disburse the funds tomorrow—April 28, 2020.

Plaintiffs ask this court to enjoin the Secretary from

making Title V payments to ANCs. Their position is

straightforward. Title V grants $8 billion in relief

funds for “Tribal governments,” which the CARES Act

defines as “the recognized governing body of an Indian

Tribe.” In Plaintiffs’ view, ANCs do not meet the statutory definition of either “Indian Tribe” or “Tribal government.” ANCs therefore are not eligible for Title V

funds. Whether Plaintiffs’ or the Secretary’s reading

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of Title V is the correct one is at the heart of the parties’

dispute.

Before the court are Plaintiffs’ motions for a temporary restraining order and preliminary injunction. Because the court finds that Plaintiffs have made a clear

showing that they are likely to suffer irreparable harm

in the absence of preliminary relief, that they are likely

to succeed on the merits, and the balance of the equities

and the public interest favor an injunction, the court

grants Plaintiffs’ motions—but only in part. The court

will preliminarily enjoin the Secretary from disbursing

Title V funds to any ANC, but will not direct him at this

time to disburse the entire $8 billion in emergency relief

to Plaintiffs and other federally recognized tribes.

Statutory Background

The CARES Act

Congress enacted the Coronavirus Aid, Relief, and

Economic Security Act (“CARES Act”), Pub. L. No.

116-136, 134 Stat. 281 (2020), to respond to the devastating impacts of the COVID-19 pandemic. Its provisions

direct tailored relief to specific sectors of American society, including economic aid to small businesses and

employment retention programs for workers (Title I);

unemployment insurance and other financial support

systems for workers, businesses, and families (Title II);

pandemic response and healthcare funding (Title III);

support for economically struggling businesses regardless of size (Title IV); relief funding for State, Tribal,

and local governments (Title V); and supplemental appropriations for federal agencies and programs (Title

VI).

87a

Title V, the title relevant here, amends the Social Security Act (42 U.S.C. 301 et seq.), and appropriates $150

billion for fiscal year 2020 for “payments to States,

Tribal governments, and units of local government.”

42 U.S.C. § 801(a)(1). Of that sum, $8 billion is “reserve[d] . . . for making payments to Tribal governments.” Id. § 801(a)(2)(B). The Act requires the Secretary of the United States Department of the Treasury

(“Secretary”) to disburse the Title V funds to Tribal governments “not later than 30 days after” March 26, 2020,

the date of enactment of this section—that is, by April

26, 2020. Id. § 801(b)(1). The Act further instructs

that the funds are intended:

to cover only those costs of the State, Tribal government, or unit of local government that—(1) are necessary expenditures incurred due to the public health

emergency with respect to the Coronavirus Disease

2019 (COVID-19); (2) were not accounted for in the

budget most recently approved as of the date of enactment of this section for the State or government;

and (3) were incurred during the period that begins

on March 1, 2020, and ends on December 30, 2020.

Id. § 801(d).

For purposes of Title V funding, the CARES Act defines “Tribal government” as “the recognized governing

body of an Indian tribe.” Id. § 801(g)(5). The Act further provides that “[t]he term ‘Indian Tribe’ has the

meaning given that term in [section 5304(e) of the Indian

Self-Determination and Education Assistance Act, 25

U.S.C. § 5304(e)].” Id. § 801(g)(1). The Indian SelfDetermination and Education Assistance Act in turn defines “Indian tribe” as “any Indian tribe, band, nation,

or other organized group or community, including any

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Alaska Native village or regional or village corporation

as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601

et seq.], 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 Alaska Native Claims Settlement Act

The Alaska Native Claims Settlement Act, enacted in

1971, Pub. L. No. 92-203, § 2(b), 85 Stat. 688, (“ANSCA”)

is “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). Among

other things, ANSCA extinguished all aboriginal claims

to Alaska land, and “[i]n 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; all of the shareholders of these corporations were required to be

Alaska Natives.” Id. at 524 (citing ANCSA, §§ 6, 8, 14

(codified at 43 U.S.C. §§ 1605, 1607, 1613)). The transfer of reservation lands to private, state-chartered Native corporations, or ANCs, was “without any restraints

on alienation or significant use restrictions,” because

Congress intended to avoid “ ‘any permanent racially defined institutions, rights, privileges, or obligations.’ ”

Id. at 532-33 (citing ANCSA, §§ 2b, 8, 14). “By ANCSA’s

very design, Native corporations can immediately convey former reservation lands to non-Natives, and such

corporations are not restricted to using those lands for

Indian purposes.” Id. at 533.

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Today, ANCs continue to own approximately 44 million acres of land. RESOURCE DEVELOPMENT COUNCIL, Alaska Native Corporations, https://www.akrdc.org/

alaska-native-corporations (last visited Apr. 25, 2020)

[hereinafter Res. Dev. Council]. The ANCs’ “landholdings are equivalent to the total trust land base of all federally recognized Tribal governments in the Lower-48

states combined.” First Am. Compl. for Declaratory

and Inj. Relief, No. 20-cv-1059, ECF No. 14 [hereinafter

Cheyenne River Am. Compl.], at 22. In fiscal year

2017, ANCs had a combined revenue of $9.1 billion, and

the twelve regional ANCs have over 138,000 shareholders and employ more than 43,000 people worldwide.

See Res. Dev. Council.

ISDEAA and ANCs

Congress enacted the Indian Self-Determination and

Education Assistance Act, or ISDEAA, in 1975 “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). Under

ISDEAA, tribes may enter into “self-determination contracts,” or “638” agreements, with federal agencies to

provide services that otherwise would have been provided by the federal government, such as education, law

enforcement, and health care. 25 U.S.C. § 5321(a)(1);

Menominee Indian Tribe, 136 S. Ct. at 753; Seminole

Tribe of Fla. v. Azar, 376 F. Supp. 3d 100, 103 (D.D.C.

2019).

Historically, federal agencies have treated ANCs as

“Indian tribes” under ISDEAA and therefore as eligible

to enter into 638 agreements. See Cook Inlet Native

Ass’n v. Bowen, 810 F.2d 1471, 1473-77 (9th Cir. 1987)

90a

(setting forth history of agency treatment of ANCs under ISDEAA). However, the extent of actual 638 contracting with ANCs under ISDEAA is unclear. The

Secretary’s counsel, for instance, was unable to identify

any present or past 638 agreement with an ANC, see

Hr’g Tr., 4/24/20, at 38—albeit, in fairness, the Secretary had only a limited time to conduct due diligence.

Factual and Procedural Background

On April 13, 2020, the Secretary published on the

Treasury Department’s website a form titled “Certification for Requested Tribal Data” (“Certification”), which

requested certain data to effectuate disbursement of

CARES Act funds. See Confederated Tribes of the

Chehalis Pls.’ Mot. for TRO and Prelim. Injunction,

ECF No. 3 [hereinafter Chehalis Mot.], Kanji Decl., Ex.

2, ECF No. 3-8 at 15-16 [hereinafter Certification]. 1

The Certification sought the following information:

(1) “Name of Indian Tribe”;

(2) “Population,” defined as “Total number of Indian

Tribe Citizens/Members/Shareholders, as of January 1,

2020”;

(3) “Land Base,” defined as “Total number of land

acres held by the Indian Tribe and any tribally-owned

entity (to include entities in which the Indian Tribe

maintains at least 51% ownership) as of January 1, 2020”

noting that such lands would “include lands held in trust

by the United States, owned in restricted fee status,

Unless otherwise noted, all citations to the docket refer to the

Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin

docket, Case No. 20-cv-1002 (APM).

91a

owned in fee, or selected pursuant to the Alaska Native

Claims Settlement Act”;

(4) “Employees,” defined as “Total number of persons employed by the Indian Tribe and any triballyowned entity (to include entities in which the Indian

Tribe maintains at least 51% ownership) on January 1,

2020”; and,

(5) “Total expenditures for the most recently completed fiscal year.”

Id. The Certification is notable in that it identifies metrics specific to ANCs. ANCs, and not traditional Tribes,

have “shareholders.” And the Certification asked for

land base information for lands “selected pursuant to

the Alaska Native Claims Settlement Act.” Federally

recognized tribes understood from the terms of the Certification that the Secretary had deemed ANCs eligible

for Title V funds, and immediately protested this apparent decision. See Cheyenne River Sioux Tribe Pls.’

Mot. for TRO and Prelim. Inj., Mem. of P. & A. in Support of Mot., ECF No. 4 [hereinafter Cheyenne River

Mot.], Ducheneaux Decl., Exs. A-E, ECF No. 4-1 (letters from representatives of various tribal governments

to Secretary Mnuchin, dated April 13, 2020, through

April 16, 2020, asking that the Secretary not allow ANCs

to be counted as Tribal governments under the CARES

Act). 2

Citations to the filings by the Cheyenne River Sioux Tribe Plaintiffs are found on the docket in Cheyenne River Sioux Tribe et al.

v. Mnuchin, 20-cv-1059 (APM).

92a

Four days later, on April 17, 2020, the first of three

suits was filed challenging the Secretary’s ostensible

treatment of ANCs as eligible for funding under Title V

of the CARES Act. The Confederated Tribes of the

Chehalis Reservation, the Tulalip Tribes, the Houlton

Band of Maliseet Indians, the Akiak Native Community,

the Asa’carsarmiut Tribe, and the Aleut Community of

St. Paul Island (collectively, “Chehalis Plaintiffs”) filed

an action against the Secretary under the Administrative Procedure Act (“APA”). Chehalis Compl., ECF

No. 1. As amended, the single-claim complaint alleges

that the Secretary’s designation of ANCs as eligible to

receive Title V funds was arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.

Chahalis Am. Compl., ECF No. 7 [hereinafter Chahalis

Am. Compl.], ¶ 119-22. Three days later, Plaintiffs

moved for a temporary restraining order and preliminary injunctive relief. See Chehalis Mot. They ask

the court both to enjoin the Secretary from disbursing

any Title V funds to ANCs and to order the Secretary to

disburse all $8 billion to federally recognized tribes.

Chehalis Am. Compl. ¶ 123; Chehalis Mot., Proposed Order, ECF No. 3-7. Plaintiffs then filed an amended

complaint, which added the Navajo Nation; Quinault Indian Tribe; Pueblo of Picuris; Elk Valley Rancheria,

California; and San Carlos Apache Tribe as plaintiffs.

See Am. Chehalis Compl., ECF No. 7 [hereinafter Am.

Compl.]. Plaintiffs again brought the same single count

for violations of the APA. Id. ¶¶ 117-23.

Two other lawsuits followed. Plaintiffs Cheyenne

River Sioux Tribe, Oglala Sioux Tribe, and Rosebud

Sioux Tribe (collectively, “Cheyenne River Plaintiffs”)

filed their suit on April 22, 2020, see Cheyenne River

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Compl., ECF No. 1, and moved for preliminary injunctive relief the same day, see Cheyenne River Mot. 3

Plaintiff Ute Indian Tribe of the Uintah and Ouray Reservation filed a third lawsuit and motion for a temporary

restraining order the next day. See Ute Compl., ECF

No. 1; Mot. for TRO and Prelim. Inj., ECF No. 5. 4 The

court consolidated all three cases. See Docket 20-cv1070, Minute Order, April 24, 2020; Docket 20-cv-1059,

Minute Order, April 23, 2020.

A number of amici curiae submitted briefs in support

of and in opposition to Plaintiffs’ motions. The Alaska

Native Village Corporation Association (“ANVCA”), a

non-profit corporation that represents 177 Alaska Native village corporations, and the Alaska Native Claims

Settlement Act Regional Association (“ARA”), a nonprofit association whose mission is to “promote and foster continued growth and economic strength of the

Alaska Native regional corporations for the benefit of

their Alaska Native shareholders and communities,”

filed a joint brief supporting the ANCs’ eligibility for Title V funding. See Br. of Amici Curiae, ECF No. 24

[hereinafter ANVCA Br.], at 1-2.

Ahtna, Inc., an

Alaska Native Regional Corporation created pursuant

to ANCSA, also filed an amicus brief supporting the Secretary. Br. of Amicus Curiae Ahtna, Inc., ECF No. 23

On April 24, 2020, the Cheyenne River Plaintiffs filed an Amended

Complaint, which added Nondalton Tribal Council, Arctic Village

Council, and Native Village of Venetie Tribal Government as plaintiffs. See Cheyenne River Am. Compl.

Citations to the filings by the Ute Tribe Plaintiffs are found on

the docket in Ute Tribe of the Uintah and Ouray Reservation v.

Mnuchin, 20-cv-1070 (APM).

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[hereinafter Ahtna Br.], at 1. Additionally, the National Congress of American Indians along with a group

of national and regional organizations of federally recognized Indian tribes, and the Native American Finance

Officers Association, the Gila River Indian Community,

the Penobscot Nation, and the Nottawaseppi Huron Band

of the Potawatomi filed their own amicus briefs supporting Plaintiffs’ position. See generally Br. of Amici Curiae National Congress of American Indians, et al., ECF

No. 20; Amicus Curiae Br. of the Native American Finance Officers Association, the Gila River Indian Community, the Penobscot Nation, and the Nottawaseppi

Huron Band of the Potawatomi, ECF No. 25.

On April 22, 2020, Defendant moved for an extension

to oppose the pending motions. See Def.’s Mot. for Extension of Time, ECF No. 9. In its motion, Defendant

represented that the Secretary “has not yet arrived at a

final decision on the question whether Alaska native corporations qualify as ‘Tribal governments’ under Title V

of the CARES Act.” Id. at 1. In a status hearing the

following day, counsel for Defendant reiterated that the

Secretary still had made no determination as to whether

ANCs would be eligible for Title V funding. Later that

day, however, the Secretary announced a firm position.

In a posting on the agency’s website, the Secretary

stated that, “[a]fter consultation with the Department of

the Interior, Treasury has concluded that Alaska Native

regional and village corporations as defined in or established pursuant to the Alaska Native Claims Settlement

Act are eligible to receive payments from the Fund in

the amounts to be determined by the Secretary of the

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Treasury.” U.S. TREASURY DEP’T, CORONAVIRUS RELIEF FUND PAYMENTS TO TRIBAL GOVERNMENTS (April

23, 2020) (footnote omitted). 5

The court heard argument on Plaintiffs’ motions the

next day, April 24, 2020. See Minute Entry, April 24,

2020. Plaintiffs contend that ANCs are not eligible for

Title V funding under the CARES Act, because no ANC

meets the statutory definition of “Tribal government”—

i.e., no ANC or ANC board of directors is “the recognized governing body of an Indian tribe.” 42 U.S.C.

§ 801(g)(5). Plaintiffs’ argument is essentially twofold: ANCs are not “Indian Tribes” under the ISDEAA

definition incorporated into the CARES Act, and no

ANC board of directors qualifies as a “recognized governing body.” Chehalis Mot. at 16-21; Cheyenne Mot.

at 20-27. Defendant, on the other hand, argues that

ANCs are treated as “Tribal governments” under

ISDEAA, relying primarily on a Bureau of Indian Affairs interpretation of the ISDEAA definition, upheld as

reasonable by the Ninth Circuit over thirty years ago.

Def.’s Cons. Opp’n to Pls.’ Mot. for TRO and Prelim.

Inj., ECF No. 21 [hereinafter Def.’s Opp’n] at 8-10 (citing Cook Inlet, 810 F.2d 1471). Defendant also contends that Plaintiffs have failed to demonstrate irreparable harm, id. at 19-22, and that, in any case, the Secretary’s decision to disburse funds is committed to his

discretion and is therefore unreviewable, id. at 7-8.

Following the hearing on Plaintiffs’ motions, the Secretary confirmed that no Title V funds will be released

https://home.treasury.gov/system/files/136/Coronavirus-ReliefFund-Payments-to-Tribal-Governments.pdf.

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to Tribal governments until April 28, 2020.

to Court, ECF No. 32.

See Notice

III.

Before turning to the merits of Plaintiffs’ requested

relief, the court addresses a threshold contention made

by Defendant. Defendant asserts that the Secretary’s

“ongoing decisions about how to implement an emergency relief fund . . . is not properly subject to judicial oversight.” Def.’s Opp’n at 7. The CARES Act

commits to the Executive Branch the decision how to allocate emergency relief payments, id. (citing 42 U.S.C.

§ 801(c)(7) (“[T]he Secretary shall determine” the amount

of the payments, which are to be made “in such manner

as the Secretary determines appropriate”)), and therefore, Defendant contends, such a discretionary determination is beyond the court’s authority to review under

the APA, see id. That argument fails.

The D.C. Circuit recently explained that there are

two categories of unreviewable discretionary agency actions, those that are “presumed immune from judicial

review” and those that are presumptively reviewable

but involve “rare instances where statutes are drawn in

such broad terms that in a given case there is no law to

apply.” Physicians for Soc. Responsibility v. Wheeler,

No. 19-5104, 2020 WL 1921539, at *4 (D.C. Cir. Apr. 21,

2020) (citing Heckler v. Chaney, 470 U.S. 821, 832 (1985),

and Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 410 (1971)). Defendant’s argument falls

into the former category. In Lincoln v. Vigil, the Supreme Court observed that “[t]he allocation of funds

from a lump-sum appropriation is another administrative decision traditionally regarded as committed to

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agency discretion.” 508 U.S. 182, 192 (1993). Such decisions are treated as presumptively unreviewable, because “an agency’s allocation of funds from a lump-sum

appropriation requires ‘a complicated balancing of a

number of factors which are peculiarly within its expertise.’ ” Id. at 193 (quoting Heckler, 470 U.S. at 831).

The Court added, however, that “an agency is not free

simply to disregard statutory responsibilities: Congress may always circumscribe agency discretion to allocate resources by putting restrictions in the operative

statutes.” Id.

That is precisely what Congress did here. True,

Congress allocated a lump-sum amount for the Secretary to allocate to “Tribal governments.” 42 U.S.C.

§ 801(a)(2)(B). But it also circumscribed the agency’s

discretion by supplying a concrete definition of “Tribal

government” against which to measure eligibility for Title V funds and, correspondingly, for the court to conduct judicial review. See id. § 801(g)(5). Thus, while

the Secretary’s decisions as to how much to disburse

might not be reviewable, 6 his decisions concerning to

whom to disburse those funds most certainly is. Cf.

Milk Train, Inc. v. Veneman, 310 F.3d 747, 752 (D.C.

Cir. 2002) (holding that Congress’s limitation on

agency’s “authority to disburse funds” provided a “statutory reference point” for judicial review).

Relatedly, Defendant argues that the Secretary’s decision is insulated from review, because it is in the na-

This observation should not be construed as a holding. The

court offers no opinion as to whether it would be foreclosed from reviewing a decision on how much to award a particular Tribal government in Title V funds.

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ture of a “time-pressed determination . . . to address a public health emergency.” Def.’s Opp’n at 7.

But Defendant cites no authority to support the contention that his decision to make funds available to a particular entity—even in contravention of a statutory mandate

—evades judicial review simply because Congress appropriated the funds to address an emergency. Curran v. Laird, relied on by Defendant, Def.’s Opp’n at

7-8, is a different case. It concerned “decisions relating to the conduct of national defense” that lie outside

the bounds of judicial reviewability. Curran, 420 F.2d

122, 128-29 (D.C. Cir. 1969). The Secretary’s decision

here, by contrast, concerns appropriations for domestic

emergency spending that is cabined by specific statutory terms. The mere emergency nature of the funding does not render it unreviewable. Cf. Milk Train,

310 F.3d at 752 (“By providing in the 2000 Appropriations Act that the moneys are for ‘economic losses incurred during 1999,’ Congress limited the Secretary’s

authority to disburse funds.” (internal citation omitted)).

Finally, Defendant asserts that, because Title V contains a provision that authorizes the Treasury Department’s Inspector General to recoup payments, Congress

somehow signaled that it “did not intend judicial oversight of the manner in which the funds are distributed.”

Def.’s Mot. at 8 (citations omitted). There is nothing in

the text of the CARES Act relating to the powers of the

Inspector General, however, that would overcome the

“strong presumption of reviewability under the [APA].”

Physicians for Soc. Responsibility, 2020 WL 1921539 at

*4 (quoting Steenholdt v. FAA, 314 F.3d 633, 638 (D.C.

Cir. 2003)).

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IV.

The court turns now to the heart of Plaintiffs’ motions. Injunctive relief is an “extraordinary and drastic remedy” that is “never awarded as [a matter] of

right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations and internal quotation marks omitted). A court

may only grant the “extraordinary remedy . . . upon a

clear showing that the plaintiff is entitled to such relief.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22

(2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972

(1997) (per curiam)). Specifically, Plaintiffs must show

that they are: (1) “likely to succeed on the merits”; (2)

“likely to suffer irreparable harm in the absence of preliminary relief ”; (3) “the balance of equities tips in

[their] favor”; and (4) “an injunction is in the public interest.” Winter, 555 U.S. at 20. Where, as here, the

federal government is the opposing party, the balance of

equities and public interest factors merge. See Nken

v. Holder, 556 U.S. 418, 434 (2009).

In this jurisdiction, courts evaluate the four preliminary injunction factors on a “sliding scale”—if a “movant

makes an unusually strong showing on one of the factors,

then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Ben

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