This is about a Supreme Court case that never should have gotten there. I am not saying that it is not worth the Court’s attention, but that it involves a one-time issue of statutory interpretation affecting the distribution of about half a billion dollars of CARES Act funds. Congress’s meaning is less than clear and Congress should step in and make it so.
The case is Yellen v. Confederated Tribes of Chehalis Reservation and it was argued this past Monday (April 19, 2021). (The petition for certiorari was filed by the former Treasury Secretary Steven Mnuchin but the current Secretary, Janet Yellin, was substituted as petitioner when she took office. I see no indication of any change in the Government’s position resulting from the change in administrations.)
The issue, as framed by the petition filed by the Government, is:
In the Coronavirus Aid, Relief, and Economic Security or CARES Act, Congress directed the Secretary of the Treasury to disburse $8 billion of relief funds “to Tribal governments.” The CARES Act defines a “Tribal government” as “the recognized governing body of an Indian Tribe,” and provides that “[t]he term ‘Indian Tribe’ has the meaning given that term in” the Indian Self-Determination and Education Assistance Act (ISDA). ISDA, in turn, defines “Indian tribe” to mean “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 * * * , 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 question presented is as follows:
Whether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the CARES Act.
[statutory citations omitted]
The Government wants to include Alaska Native regional and village corporations as eligible recipients of a share of $8 billion under the CARES Act, but some seventeen recognized Indian tribes (whose own distributions would be accordingly reduced) obtained a decision in the U.S. Court of Appeals for the D.C. Circuit to the effect that the Alaska Native regional and village corporations are not eligible.
As things stand, the Supreme Court has to decide the case based upon the language that Congress used and not which outcome is the better policy. It will essentially have to clean up the mess resulting from too hasty drafting of the statute.
There is, however, nothing except the likely desire not to offend the losing side that would prevent Congress from stepping in (although it should do so quickly) and passing curative legislative definitely providing that Alaska Native regional and village corporations are (or are not) eligible for a share in the relief funds. The Supreme Court could then vacate the decision below and remand for further proceedings in light of the new statute.
Jay Bohn
April 22, 2021
Post script
The Supreme Court decided this case today. By a vote of 6-3 the Court decided that Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the CARES Act. I have no comment on the merits of the decision, I will just note that the justices were not aligned in their generally perceived camps.
J.B.B.
June 25, 2021