CONFEDERATED TRIBES OF THE CHEHALIS RESERVATION, ET AL., APPELLEES v. STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF U.S. DEPARTMENT OF THE TREASURY, ET AL., APPELLEES
No. 20-5204 (Consolidated with 20-5205, 20-5209)
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2020; Decided September 25, 2020
Before: HENDERSON, MILLETT, and KATSAS, Circuit Judges. Opinion of the Court filed by Circuit Judge KATSAS. Concurring Opinion filed by Circuit Judge HENDERSON.
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)
CONFEDERATED TRIBES OF THE CHEHALIS RESERVATION, ET AL., APPELLEES
UTE TRIBE OF THE UINTAH AND OURAY INDIAN RESERVATION, APPELLANT
v.
STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF U.S. DEPARTMENT OF THE TREASURY, ET AL., APPELLEES
Consolidated with 20-5205, 20-5209
Appeals from the United States District Court for the District of Columbia (No. 1:20-cv-01002) (No. 1:20-cv-01059) (No. 1:20-cv-01070)
Riyaz Kanji argued the cause for Confederated Tribes appellants. With him on the briefs were Cory Albright, Lisa Koop Gunn, Lori Bruner, Eric Dahlstrom, April E. Olson, Richard W. Hughes, Reed C. Bienvenu, Bradley G. Bledsoe Downes, and Alexander B. Ritchie.
Jeffrey S. Rasmussen argued the cause for appellants Ute Tribe of the Uintah and Ouray Indian Reservation, et al. With him on the briefs were Frances C. Bassett, Rollie E. Wilson, Nicole E. Ducheneaux, Natalie A. Landreth, Erin Dougherty Lynch, Matthew N. Newman, Wesley James Furlong, Megan R. Condon, and Jeremy J. Patterson.
Kaighn Smith, Jr. was on the brief for amici curiae National Congress of American Indians, et al. in support of appellants.
Adam C. Jed, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Ethan P. Davis, Acting Assistant Attorney General, and Michael S. Raab and Daniel Tenny, Attorneys.
Paul D. Clement argued the cause for intervenor-appellees Alaska Native Village Corporation Association, Inc., et al. With him on the brief were Erin E. Murphy, Ragan Naresh, and Matthew D. Rowen. Jonathan W. Katchen and Daniel W. Wolff entered appearances.
Christine V. Williams was on the brief for amici curiae U.S. Senators Lisa Murkowski, Dan Sullivan, and U.S. Congressman Don Young in support of appellees.
Allon Kedem, Ethan G. Shenkman, and Janine M. Lopez were on the brief for amicus curiae Cook Inlet Region, Inc. in support of appellee.
James H. Lister was on the brief for amicus curiae Alaska Federation of Natives in support of appellees.
Before: HENDERSON, MILLETT, and KATSAS, Circuit Judges.
Opinion of the Court filed by Circuit Judge KATSAS.
Concurring Opinion filed by Circuit Judge HENDERSON.
I
A
Since the Alaska Purchase in 1867, the United States has taken shifting positions on the political status of Alaska‘s indigenous populations. Initially, the government thought that Alaska Natives had no distinct sovereignty. See, e.g., In re Sah Quah, 31 F. 327, 329 (D. Alaska 1886) (“The United States has at no time recognized any tribal independence or relations among these Indians . . . .“). Over time, it came to view Alaska Natives as “being under the guardianship and protection of the Federal Government, at least to such an extent as to bring them within the spirit, if not within the exact letter, of the laws relative to American Indians.” Leasing of Lands Within Reservations Created for the Benefit of the Natives of Alaska, 49 Pub. Lands Dec. 592, 595 (1923). Those laws recognize and implement the unique trust relationship between the federal government and Indian tribes as dependent sovereigns, and the distinct obligations that relationship imposes. See, e.g., United States v. Jicarilla Apache Nation, 564 U.S. 162, 175–76 (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.
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 calculated to speed assimilation of Alaska Natives into corporate America.” 1 Cohen‘s Handbook of Federal Indian Law § 4.07(3)(b)(ii)(C) (2019). Among other things, ANCSA “completely extinguished all aboriginal claims to Alaska land” and abolished all but one Native reservation in Alaska. Native Vill. of Venetie, 522 U.S. at 524. “In return, Congress authorized the transfer of $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations that were to be formed pursuant to the statute.” Id.
Like other corporations, ANCs have boards of directors and shareholders.
B
In 1975, Congress enacted ISDA to “help Indian tribes assume responsibility for aid programs that benefit their members.” Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 753 (2016). ISDA authorizes the federal government to contract with Indian tribes to provide various services to tribal members. Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 185 (2012). Under these “self-determination” contracts, the government provides money to an individual tribe, which agrees to use it to provide services to tribal members. See Menominee Indian Tribe, 136 S. Ct. at 753.
Specifically, ISDA directs the Secretary of the Interior or the Secretary of Health and Human Services, “upon the request of any Indian tribe,” to contract with an appropriate “tribal organization” to provide the requested services.
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.
C
On March 27, 2020, Congress passed the CARES Act to provide various forms of relief from the ongoing coronavirus pandemic. Title V of the CARES Act appropriated $150 billion “for making payments to States, Tribal governments, and units of
Of these funds, the CARES Act reserved $8 billion “for making payments to Tribal governments.”
II
On April 13, 2020, the Department of the Treasury published a form seeking tribal data to help apportion Title V funds. The Department requested each tribe‘s name, population, land base, employees, and expenditures. The form suggested that ANCs would receive funding. For example, in seeking population information, the form requested the total number of tribal citizens, members, or shareholders. On April 22, the Department confirmed its conclusion that ANCs were eligible to receive Title V funds.
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.”
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
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 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).
IV
On the merits, the district court held that ANCs are Indian tribes within the
Title V of the CARES Act makes funding available “to States, Tribal governments, and units of local government.”
A
ISDA defines an “Indian tribe” as
[1] any Indian tribe, band, nation, or other organized group or community, [2] including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims 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.
The text and structure of this definition make clear that the recognition clause, which is adjectival, modifies all of the nouns listed in the clauses that precede it. Under the series-qualifier canon, “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.” A. Scalia & B. Garner, Reading Law 147 (2012); see, e.g., Lockhart v. United States, 136 S. Ct. 958, 963 (2016) (canon applies where “the listed items are simple and parallel without unexpected internal modifiers“); Jama v. ICE, 543 U.S. 335, 344 n.4 (2005) (same where “modifying clause” appears “at the end of a single, integrated list“). This canon applies to the listing clause, which ticks off five synonyms in a grammatically simple list (any “tribe, band, nation, or other organized group or community“). Moreover, through its usage of “including,” the Alaska clause operates to equate its two parallel nouns (“village” and “corporation“) with the five preceding nouns. And given the obvious similarities between the Indian entities in the listing clause and Alaska Native villages—more than 200 of which have been recognized as 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
B
Because no ANC has been federally “recognized” as an Indian tribe, as the recognition clause requires, no ANC satisfies the ISDA definition.
“[I]t is a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.” Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237, 248 (2014) (quoting FAA v. Cooper, 566 U.S. 284, 292 (2012)). We adhere to this presumption unless the statute contains some “contrary indication.” McDermott Int‘l, Inc. v. Wilander, 498 U.S. 337, 342 (1991).
In the context of Indian law, “recognition” is a “legal term of art.” Frank‘s Landing Indian Cmty. v. Nat‘l Indian Gaming Comm‘n, 918 F.3d 610, 613 (9th Cir. 2019). It refers to a “formal political act confirming the tribe‘s existence as a distinct political society, and institutionalizing the government-to-government relationship between the tribe and the federal government.” Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (quotation marks omitted). Federal recognition both establishes the tribe as a “domestic dependent nation” and “requires the Secretary [of the Interior] to provide a panoply of benefits and services to the tribe and its members.” Frank‘s Landing, 918 F.3d at 613–14 (quotation marks omitted); see Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 211 (D.C. Cir. 2013) (“Federal recognition is a prerequisite to the receipt of various services and benefits available only to Indian tribes.“); Miwok Tribe, 515 F.3d at 1263–64 (noting “the federal benefits that a recognized tribe and its members may claim“); Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 57 (2d Cir. 1994) (“After passage of the Indian Reorganization Act recognition proceedings were necessary because the benefits created by it were made available only to descendants of ‘recognized’ Indian tribes.“). Given the well-established meaning of “recognition” in Indian law, and its connection to the provision of benefits to tribal members, we interpret ISDA‘s requirement that an Indian tribe be “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians” to require federal recognition of the putative tribe.
Several pre-ISDA statutes bolster this conclusion. During the 1950s and 1960s, Congress sought to assimilate Indians by terminating federal recognition of various tribes, thereby ending the special relationship that existed between the federal government and the tribes as sovereigns. Felter v. Kempthorne, 473 F.3d 1255, 1258 (D.C. Cir. 2007). By rote formula, these statutes provided that, upon termination, members of the former tribe “shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians.” See, e.g.,
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.”
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,
The intervenors urge a different understanding of what kind of recognition ISDA requires. Rejecting the term-of-art understanding
The intervenors’ proposed interpretation cannot be reconciled with the text of ISDA. First, ISDA‘s recognition clause does not simply require the group to be “recognized as eligible” for any special program or service “provided by the United States to Indians because of their status as Indians.” Instead, it requires the group to be “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians” (emphases added). Use of the definite article (“the“) indicates that what follows “has been previously specified by context.” Nielsen v. Preap, 139 S. Ct. 954, 965 (2019). Here, the only “special programs and services” (in the plural) plausibly specified by context are the “panoply of benefits and services” to which “recognized” tribes are entitled. Frank‘s Landing, 918 F.3d at 613–14. Second, the intervenors would read recognition out of ISDA; whereas the statute requires a group to be “recognized as eligible” for various special programs, the intervenors would read it to require only that the group be “eligible” to receive benefits or funding.
The ANCs have not satisfied the recognition clause as we construe it. They do not contend that the United States has acknowledged a political relationship with them government-to-government. Nor could they, for in 1978, the Interior Department promulgated regulations making “corporations . . . formed in recent times” ineligible for recognition. See
C
The government agrees that ANCs have not been “recognized” as ISDA requires. Indeed, it stresses that ANCs, which have never enjoyed any sovereign-to-sovereign relationship with the United States, could never be so recognized. For the government, the upshot is that ANCs need not satisfy the recognition clause to qualify as Indian tribes. Otherwise, the government reasons, Congress would have accomplished nothing by expressly adding “any Alaska native village or regional or village corporation” (emphasis added) to the list of possible recognized tribes. Given what the government describes as a misfit between the last noun in the statutory list (“corporation“) and the adjectival clause that follows (including “recognized“), the government contends that the adjectival clause must be read to modify every listed noun except its immediate antecedent.
Fortunately, we need not choose between the government‘s interpretation, which produces grammatical incoherence, and a competing interpretation that would produce equally problematic surplusage. For we conclude that, although ANCs cannot be recognized as Indian tribes under
For over a century, claims of tribal sovereignty in Alaska went largely unresolved. Soon after the Alaska Purchase, many courts held that Native villages were not sovereigns in control of some distinct “Indian country.” United States v. Seveloff, 27 F. Cas. 1021, 1024 (C.C.D. Or. 1872); Kie v. United States, 27 F. 351, 351–52 (C.C.D. Or. 1886); see also In re Sah Quah, 31 F. at 329 (“The United States has at no time recognized any tribal independence or relations among these Indians . . . .“). That view changed over the first half of the 20th century, yet there were still few occasions for the federal government to develop political relationships with the remote and isolated Native villages. Sansonetti Op. at *9, *15–16. Accordingly, the government addressed questions of Native sovereignty only “in a tentative and reactive way.” Id. at *2. And when land disputes came to the fore in ANCSA, Congress complicated the question of Native sovereignty even more. As a general matter, Indian tribes must control a particular territory. See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 142 (1982); Montoya v. United States, 180 U.S. 261, 266 (1901). But ANCSA terminated 22 of the 23 existing reservations in Alaska,
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 or sovereign could bring against the United States.
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,
But even after promulgating those regulations, Interior still had difficulty sorting out whether to recognize Native villages, corporations, or both. In 1979, Interior published its first list of tribes recognized under the new regulatory criteria. The list contained no Alaska Native entities, which the agency said would be addressed “at a later date.” Indian Tribal Entities that Have a Government-To-Government Relationship with the United States,
In sum, when Congress enacted ISDA in 1975, it was substantially uncertain whether the federal government would recognize Native villages, Native corporations, both kinds of entities, or neither. In the face of this uncertainty, Congress expanded the term “Indian tribe” to cover any Native “village or regional or village corporation” that was appropriately “recognized.” By including both villages and corporations, Congress ensured that any Native entities recognized by Interior or later legislation would qualify as Indian tribes. There is no surplusage problem simply because, almost two decades later, Interior chose to recognize the historic villages but not the
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 programs and services provided by the United States to Indians because of their status as Indians.”
For these reasons, we read the ISDA definition to mean what it says, that Alaska Native villages and corporations count as an “Indian tribe” only if “recognized” as such.
D
The ANCs suggest that a ruling for the tribes would produce sweeping adverse consequences. They worry that such a ruling would disentitle them not only from CARES Act funding, but also from funding under ISDA and the many other statutes that incorporate its “Indian tribe” definition. This is far from obvious, for ISDA makes funding available to any “tribal organization,” upon request by any “Indian tribe.”
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
V
We hold that Alaska Native Corporations are not eligible for funding under Title V of the CARES Act. We thus reverse the grant of summary judgment to the government and the intervenors, as well as the denial of summary judgment to the plaintiff tribes.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
It is, was and always will be, this court‘s duty “to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), but that does not mean we should be blind to the impact of our decisions. The COVID-19 pandemic is an unprecedented calamity, subjecting Americans to physical and economic suffering on a national scale. The virus respects no geographic or political boundaries and invades nearly every facet of life. And as the virus has swept through our Nation, it has disproportionately affected American Indian and Alaska Native communities.1
Although I join my colleagues in full, I write separately to express my view that this decision is an unfortunate and unintended consequence of high-stakes, time-sensitive legislative drafting.2 It is indisputable that the services ANCs provide to Alaska Native communities—including healthcare, elder care, educational support and housing assistance—have been made only more vital due to the pandemic. I can think of no reason that the Congress would exclude ANCs (and thus exclude many remote and vulnerable Alaska Natives) from receiving and expending much-needed Title V funds.
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. 1993) (Beezer, J., dissenting). 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