By ARIADNE WILL
Sentinel Staff Writer
In a 6-3 Supreme Court ruling in June, Alaska Native corporations were ruled to be “Indian tribes” and therefore eligible for CARES Act funding.
The majority opinion in Yellen v. Confederated Tribes of the Chehalis Reservation ruled that corporations – including Sealaska and Shee Atiká Inc. in Sitka – stand to receive a $500 million chunk of the $8 billion set aside for U.S. tribes.
But the decision isn’t just about CARES Act funding.
Jaeleen Kookesh is vice president of policy and legal affairs at Sealaska, the regional corporation for Southeast Alaska formed under the Alaska Native Claims Settlement Act (ANCSA) of 1971. Kookesh said Alaska Native corporations would have faced substantial funding challenges had the Supreme Court ruled against the corporations.
“I can’t even imagine how many millions of dollars we would have lost through all the programs we qualify for,” she told the Sentinel.
Sitka Tribe of Alaska’s office building on the corner of Siginaka Way and Katlian Street is pictured Tuesday. The building’s HVAC system was recently replaced using Coronavirus Aid Relief and Economic Security (CARES) Act funding. The Supreme Court recently ruled that Alaska Native corporations are also eligible for CARES Act funding. (Sentinel Photo by James Poulson)
The decision was based on the definition of “Indian tribes” as mentioned in the 1975 Indian Self-Determination and Education Assistance Act, or ISDEAA.
That definition specifically includes Alaska Native corporations, which are often responsible for areas such as land management and cultural preservation. These types of activities often receive funding from the U.S. Department of Agriculture.
But even as the ruling secures funding for ANCs and their shareholders, it has also led to questions about the implications of recognizing Alaska Native Corporations — which are private companies — as tribes.
The tribal plaintiffs in the original lawsuit cited the federal list of “Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs.”
The document is at the bedock of federal Indian law and lists all federally recognized tribes in the U.S.
The Sitka Tribe of Alaska, for example, is on the list, which is confined to tribes “recognized as having a government-to-government relationship with the federal government.”
None of the regional, village or urban corporations formed under ANCSA is on the list.
But the prevailing view of the Supreme Court in the closely argued case was that “federally recognized” was a “term of art,” subject to interpretation on the basis of Congressional passage of ANCSA and the later enactment of the ISDEAA.
This means that even though ANCs are “recognized tribes” under the Yellen v. Confederated Tribes of the Chehalis Reservation decision, they have not gained the status of a sovereign, tribal government.
And Sealaska and Shee Atiká say they’re not seeking to be identified as such.
“The decision does not establish ANCs as sovereigns, and Sealaska has no intention of asserting sovereignty,” said Amy Miller, communications manager at Sealaska. “We value our relationship with the tribes in our region and work diligently to maintain close relationships. If anything, this is an opportunity for us to continue to work together to serve our people, which is in the interest of all of us.”
But the question of recognition is just the tip of the iceberg.
Wrapped into the decision is also precedent set by statutes that qualify ANCs for funding. These statutes also rely on the language used in ISDEAA. Had the court decision gone another way, a structure that has been under construction since 1975 would be sent back to the drawing board.
“An adverse decision by SCOTUS in the Yellen v. Confederated Tribes of the Chehalis Reservation case would have potential(ly) undermined dozens of other federal Indian statutes that use a similar definition of “tribe” in establishing eligibility for those specific statutes,” said Karl Potts, CEO of Shee Atiká Inc. “Such a ruling would have had severe consequences for our shareholders and was a key point raised by the U.S. government in defending the right of Alaska Native Corporations to receive funding pursuant to the CARES Act.”
Further complexity in determining what does and doesn’t qualify as an “Indian tribe” is apparent in the judicial record of Yellen v. Confederated Tribes. The case raced through the federal court system following Congressional passage of the CARES Act in March last year. It received the immediate legal challenges by 12 tribes in the contiguous U.S. These challenges were joined by six tribes in Alaska.
The U.S. District Court for Washington, D.C., upheld the government’s defense in the Confederated Tribes suit. It ruled that Alaska Native corporations were entitled to the CARES Act funding set aside by the U.S. Department of the Treasury for Alaska Native corporations.
That ruling was reversed by the Court of Appeals for the D.C. Circuit. In turn, the Appeals court ruling was overturned by the Supreme Court on June 25 this year. The majority opinion by Justice Sonia Sotomayor reinstated ANCs’ eligibility as “Indian tribes” for the purposes of CARES Act funds.
This final ruling is in agreement with ISDEAA, and is why Lisa Gassman, general manager of Sitka Tribe of Alaska, believes that the ruling will not impact relationships between STA – a federally recognized tribe – and ANCs.
“The federal government has recognized ANCSA corporations as tribes for many years now,” she told the Sentinel. “This is nothing new.”
Gassman declined to comment on whether STA agrees with the Supreme Court’s ruling.
The amount of money corporations stand to receive has not yet been disclosed by the U.S. Treasury Department. Miller and Potts say that Sealaska and Shee Atiká may not receive much money.
But like Kookesh, Miller says this is more about funding in the future.
“Many federal programs allow us to protect our resources and to generate income that can preserve or increase our revenues,” she told the Sentinel. “These revenues are then used to pay dividends to shareholders and fund shareholder priority programs like scholarships, elder benefits and language revitalization efforts.”
Potts agrees: “These benefits improve the lives of our shareholders and in turn allow our shareholders to positively impact and improve the communities in which they live and work.”
