In re Darrell J. Totemoff

ORDER ON MOTION TO DISMISS

On September 12, 2014 the deceased, Darrell J. Totemoff, executed a Chugach Alaska Corporation (“Chugach Alaska”) stock will. In the will, Mr. Totem off identified himself, identified his beneficiaries, and identified the number of shares each beneficiary was to receive. In addition, Mr. Totemoff identified the location at which he executed the will. However, Mr. Totemoff did not have the will notarized. Because the will was not notarized, Chugach Alaska Corporation has refused to honor it.

Petitioners now seek to admit the stock will to probate as a holographic will under AS 13.12.502(b). But under a different statute, AS 13.16.705, the Chugach Alaska Corporation, not a probate court, must determine who receives Mr. Totemoff’s Chugach Alaska stock in the first instance. The stock is not part of the estate and therefore “not subject to probate.” AS 13.16.705(a). If Petitioners disagree with Chugach Alaska’s decision, they may file an independent action with the superior court. Id. Accordingly, Chugach Alaska’s Motion to Dismiss is GRANTED.

Alaska courts interpret the law “according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters.” Native Village of Elim v. State, 990 P.2d 1, 5 (Alaska 1999). “In general, if two statutes conflict, then the later in time controls over the earlier, and the specific controls over the general.”[1] Allen v. Alaska Oil & Gas Conservation Comm’n, 147 P.3d 664, 668 (Alaska 2006). However, the court must interpret potentially conflicting statutes “with a view toward reconciling conflict and producing a harmonious whole.” Id.

Here, AS 13.06.065 establishes the probate jurisdiction of the superior court, while AS 13.16.705 specifically addresses testamentary transfers of Native corporation stock. Under AS 13.06.065, the court has jurisdiction over “estates of decedents, including construction of wills and determination of heirs and successors.” Petitioners claim this provision authorizes the court to admit Mr. Totemoff’s stock will to probate. But AS 13.16.705 provides that the “common stock or other alienable stock” of a Native Corporation is not “subject to probate” and may not be considered “in determining the value of an estate or allowance.” Thus, the statutory language suggests that Mr. Totemoff’s Chugach Alaska stock is not part of the estate. If the stock is not part of the estate, it does not fall within the Court’s probate jurisdiction, which extends only to “estates of decedents.”[2]

The legislative history of AS 13.16.705 supports this interpretation. The Legislature enacted AS 13.16.705 to implement the Alaska Native Claims Settlement Act (ANCSA). ANCSA, which settled various claims by Native Alaskans on aboriginal territory, aimed to ensure the economic well-being of Native communities and preserve the Native Alaskan way of life. See 43 U.S.C. §§ 1601-07. To that end, ANCSA restricted transfers of Native Corporation stock. Id. § 1606. However, ANCSA left the State free to determine how stock would pass upon the death of a shareholder. Id. § 1606(h)(2)(A) (providing that stock in a Native Corporation shall pass “in accordance with the lawful will of [the shareholder] or pursuant to the applicable laws of intestate succession”).

In direct response to the latter aspect of ANSCA, AS 13.16.705(a) unambiguously declares that Native Corporation stock is “not subject to probate” and may not be included in the estate. Instead, the stock should pass by either a testamentary form on the back of the stock certificate, or a separate form that “substantially satisfies” the requirements of the statute and is “distributed to the same extent as the [stock] certificate.” Id. If the stock does not pass by either the stock certificate or an equivalent form, the Native corporation that issued the stock-in this case, Chugach Alaska-must determine who is entitled to the stock based on an affidavit, furnished to the Native corporation or its agent, “showing the right of the person entitled to the stock to receive it.” Id. If the Native corporation accepts the affidavit and transfers the stock, it is “discharged and released to the same extent as if [it] dealt with a personal representative of the decedent.” AS 13.16.685. If the Native corporation refuses to transfer the stock as requested in the affidavit, the party requesting the transfer may file “an independent action in the superior court.” AS 13.16.705(a).

AS 13.16.705 establishes the exclusive procedure for distributing Native Corporation stock upon the death of a shareholder. Contrary to Petitioners’ assertions, AS 13.06.065 – which broadly declares that the court has jurisdiction over “estates of decedents” – does nothing to alter this statutory scheme. As discussed above, Native corporation stock may not be considered “in determining the value of an estate or allowance.” The Native Corporation must decide, in the first instance, who inherits the stock. Because Chugach Alaska has refused to honor Mr. Totemoff’s stock will, it must now dispose of the stock on the basis of an affidavit from the party entitled to receive it. AS 13.16.705(a). In other words, Petitioners must submit an affidavit to Chugach Alaska showing that they are entitled to inherit Mr. Totemoff’s stock. If Petitioners disagree with Chugach Alaska’s subsequent decision, they may tile an action with the Superior Court. Id.

Petitioners argue that the court, not Chugach Alaska, must determine the “validity or lawfulness” of Mr. Totemoff’s stock will. Memorandum in Support of Response to Motion to Dismiss at 6. But there is no need, at this juncture, for a probate court to determine the validity of the will. The Legislature enacted AS 13.16.705, to ensure that the Native community, and not the State, retained primary authority over inheritance of Native corporation stock. See, e.g., Alaska House Judiciary Committee Minutes of the Meeting, Thursday, April 6, 1972, Statements of Rep. Jackson at 162. Thus, the legislature chose to prioritize the legitimacy of inheritance decisions among Native communities over the legal sufficiency of testamentary documents. The Legislature anticipated that many documents purporting to transfer Native Corporation stock after death would not satisfy the requirements for a legally valid will. Id. Nonetheless, AS 13.16.705 demonstrates a clear legislative intent to give effect to such documents. Petitioners’ interpretation of the statutes would render AS 13.16.705 meaningless because disposition of Native Corporation stock would not differ in any significant way from an ordinary probate proceeding.

Because Mr. Totemoff’s Chugach Alaska stock is separate from the estate, Chugach Alaska, and not the court sitting in probate, must decide whether Petitioners are entitled to Mr. Totemoff’s stock. If Petitioners disagree with Chugach Alaska’s decision, they may file and independent action with this court. Chugach Alaska’s Motion to Dismiss is GRANTED.

ORDERED this 26th day of April, 2016, at Anchorage, Alaska.

Andrew Guidi
Superior Court Judge

In re Sitnasuak Native Corporation

The Director of the Department of Commerce, Community, and Economic Development, Division of Banking and Securities (“Administrator”), has conducted an investigation into certain activities of Sitnasuak Native Corporation (“Respondent”), and has determined that Respondent violated certain provisions of the Alaska Securities Act, Alaska Statute (AS) 45.55.

The Administrator had jurisdiction over Respondent and these matters pursuant to the Alaska Securities Act.

Respondent wishes to resolve and settle this matter with the Administrator. As evidenced by the authorized signature on this Order, Respondent consents to the entry of this Order assessing civil penalties based on the Conclusions of Law and Order. Respondent waives its right of appeal under AS 45.55.920(d).

I. Findings of Fact

  1. Respondent is a corporation organized pursuant to the Alaska Native Claims Settlement Act (“ANCSA”), 43 U.S.C. 1601 et seq., and maintains an address at 400 Bering St., Nome, Alaska, 99762.
  2. Pursuant to AS 45.55.139, ANCSA corporations with 500 or more shareholders and total assets exceeding $1,000,000 must file with the Administrator all annual reports, proxies, consents or authorizations, proxy statements, or other proxy solicitations distributed and made available by any person to 30 or more Alaska resident shareholders concurrently with distribution of those materials to shareholders.
  3. Respondent has certified to the Administrator that it has more than 500 shareholders and total assets exceeding $1,000,000.
  4. Pursuant to 3 AAC 08.345(b)(1)(F), Respondent’s board of director proxy solicitations must be preceded or accompanied by a dated, written proxy statement that includes, if action is to be taken on the election of directors, a description of each nominee of the board who has consented to act if elected and of each director whose term of office will continue after the shareholders’ meeting, including a description of the nominee and/or director’s business experience during the last five years, including principal employment or occupation and employer.
  5. On February 28, 2014, Trudy Sobocienski submitted a candidate questionnaire for Respondent’s 2014 board of directors election. In her questionnaire, Ms. Sobocienski disclosed that she had been the Chief Executive Officer of Deloycheet, Inc. from 2010-2012. However, Respondent did not disclose Ms. Sobocienski’s employment with Deloycheet in its 2014 Notice of Annual Meeting & Proxy Statement. Ms. Sobocienski was subsequently elected to the board of directors.
  6. On February 17, 2015, Ms. Sobocienski submitted a current board member questionnaire for Respondent’s 2015 board of directors election. In her questionnaire, Ms. Sobocienski again disclosed that she had been the Chief Executive Officer of Deloycheet, Inc. from 2010-2012. However, Respondent again did not disclose Ms. Sobocienski’s employment with Deloycheet in its 2015 Notice of Annual Meeting & Statement.
  7. Respondent has fully cooperated with the Administrator in its investigation into this matter.

II. Conclusions of Law

  1. Respondent is subject to the filing requirements of AS 45.55.139.
  2. Respondent violated 3 AAC 08.345(b)(1)(F) by failing to disclose Ms. Sobocienski’s employment as Chief Executive Office of Deloycheet, Inc. from 2010-2012 in its 2014 and 2015 Notice of Annual Meeting & Proxy Statements.
  3. Respondent is subject to a civil penalty pursuant to AS 45.55.920(c) because it violated 3 AAC 08.345(b)(1)(F).

III. Order

Pursuant to AS 45.55.920, and on the basis of the Findings of Fact, Conclusions of Law, the Administrator ORDERS Respondent to:

  1. CEASE AND DESIST from omitting mandatory disclosures in its proxy solicitations.
  2. Comply with all provisions of the Alaska Securities Act, including associated regulations.
  3. Pay a civil penalty in the amount of one thousand dollars ($1,000).[1]
IT IS SO ORDERED.

Chris Hladick, Commissioner
Department of Commerce, Community and Economic Development

Dated February 22, 2016
BY: Kevin Anselm, Director
Divisions of Banking and Securities

Consent to Entry of Order

I, Richard Strutz, state that I am the CEO of Sitnasuak Native Corporation (“Sitnasuak”); that I am authorized to act on its behalf; that I have read the foregoing Order and that I know and fully understand the Order contents; that Sitnasuak has been represented by counsel in this matter; that Sitnasuak has been advised of the right of a hearing; that Sitnasuak voluntarily and without any force or duress, consents to the entry of this Order; that Sitnasuak expressly waives any right to a hearing in this matter; that Sitnasuak understands that the Administrator reserves the right to take further actions to enforce this Order or to take appropriate action upon discovery of other violations of the Alaska Securities Act; that further similar violations may result in a prefiling requirement under AS 45.55.920(a)(1)(B); and that Sitnasuak will fully comply with the terms and conditions stated herein.

Sitnasuak understands that this Order is a publicly disclosable document.

Dated 2-9-16
Richard Strutz
Sitnasuak Native Corporation
CEO
SUBSCRIBED AND SWORN TO before me this 9th day of February, 2016 at Sitnasuak NC.
Rebecca Neagle, Notary Public
My commission expires May 8, 2018
Approved as to form and content:
February 17, 2016
Brian Duffy
Attorney for Sitnasuak Native Corporation
Contact Person:
David Newman
Securities Examiner
(907)269-7678

Henrichs et al. vs. Chugach Alaska Corporation

I. Introduction

Robert J. Heinrichs, Derenty Tabios, and Robert E. Burk are shareholders and former directors of Chugach Alaska Corporation who ran for election to the Chugach board in 2005. These former directors sued Chugach because their names were excluded from the board’s corporate proxy materials and because Chugach did not provide them with shareholder information for their own proxy campaigns within the time frame they demanded. The superior court granted Chugach summary judgment on all claims and the former directors now appeal. We affirm because Chugach was not required to deliver the information the former directors demanded and because Chugach’s conduct did not otherwise violate their rights as board candidates.

II. Facts and Proceedings

Chugach is a corporation organized under Alaska law; its principal place of business is in Anchorage. Chugach’s governing body is a nine-person board of directors whose members serve staggered, three-year terms. The shareholders nominate and elect three directors each October at Chugach’s annual shareholders’ meeting.

For each annual meeting, Chugach uses a proxy system that allows shareholders to vote for board directors without attending the meeting in person. Shareholders send written proxies to Chugach’s Inspector of Elections, giving the proxy committee the authority to vote the shareholders’ shares on their behalf. On the proxy, a shareholder indicates the candidate or candidates for which the shareholder wants to vote.

Prior to each meeting, Chugach’s board of directors solicits proxies from the shareholders. Each shareholder receives from the board a proxy statement explaining the proxy system, a voter’s guide providing information about candidates, and a proxy form. The proxy form gives the shareholder the option to vote for a board-endorsed slate of candidates or to allocate votes among candidates of the shareholder’s choice. Submitting an eligible and timely proxy typically makes a shareholder eligible for cash prizes.

The proxy committee of Chugach’s board, composed of the directors not running for reelection, reviews the applications of candidates who wish to be endorsed by the board and included in the proxy materials. It then recommends candidates to the board, which decides whether to endorse the candidates in the proxy materials.

Henrichs and Tabios were members of Chugach’s board of directors leading up to the October 15, 2005 shareholders’ meeting, at which time their seats were set to expire. Each sought reelection. Burk had previously served as a director for Chugach, and he also ran for election.

All three men applied to be board-endorsed candidates. The board rejected their applications and informed them that their names would not be included in Chugach’s corporate proxy material. The board also informed them that they could run as independent candidates and distribute their own proxy materials.

On August 21, 2005, Heinrichs sent a letter to Chugach requesting a list of shareholder addresses and the number of shares owned by each shareholder. Burk and Tabios also sent letters to Chugach requesting the shareholder list. On September 1, after receiving no reply, Henrichs filed suit in the superior court, claiming AS 10.06.430 and AS 10.06.450(d) required Chugach to provide the shareholder information he sought. Tabios joined the suit as a plaintiff five days later on September 6.

On September 7 Chugach emailed to Henrichs, Tabios, and Burk shareholder lists that included the names, the number of shares held, and the addresses for all shareholders. The emails explained that the record date — the date for determining the shareholders entitled to vote at the 2005 annual meeting — was the previous day, and that the shareholders lists were finalized at that time.

Chugach made its first motion for summary judgment on September 9, claiming it had provided all of the information that Henrichs and Tabios requested.

In the meantime, Chugach proceeded with preparations for the 2005 annual meeting. On September 9 Chugach sent out its proxy materials, which did not include the information for Henrichs, Tabios, or Burk. The three men ran independent campaigns: Henrichs and Burk wrote letters to the election inspector asking to inspect the ballots cast at the annual meeting, but the inspector declined, citing the proxy rules that required board approval to inspect the ballots after the adjournment of the meeting.

In December 2005 the former directors filed an amended complaint adding Burk as a plaintiff and adding various challenges to the 2005 election.

The following year, Burk and Henrichs requested shareholder information for the 2006 annual meeting. Their letters requested that Chugach provide the shareholder lists in an electronic file, including each shareholder’s telephone number and email address. In response, Chugach emailed to Burk and Henrichs an electronic spreadsheet containing the names, mailing addresses, number of shares, and voting status of all shareholders. But Chugach declined to provide the shareholders’ telephone numbers and email addresses.

At an August 2006 hearing, the superior court granted Chugach’s first motion for summary judgment. It ruled that Chugach provided the shareholders lists within a reasonable amount of time and that the former directors had not attempted to inspect the shareholder list at the corporation’s registered office or principal place of business as required. The superior court also accepted the former directors’ amended complaint. The former directors then filed another amended complaint, adding claims relating to Chugach’s refusal to provide the shareholders’ email addresses and phone numbers in 2006.

On November 17, 2006, Chugach filed a motion to dismiss all but two of the former directors’ claims. Chugach attached thirteen exhibits to the memorandum in support of the motion. The superior court granted the former directors three extensions of time to file their response. But eventually, the superior court granted the motion — about two months after the third deadline passed without any response and more than a month after Chugach notified the court that the motion was ripe.

The court’s order dismissed all of the former directors’ claims with the exception of one relating to Chugach’s “early bird prize” for prompt proxy returns and another relating to Chugach’s election rule requiring that proxies be separately returned by mail. The court later clarified that it had treated the motion “as a summary judgment motion” even though the motion was labeled as a motion to dismiss. Three days after the motion was granted, the former directors filed a late opposition, attaching 25 exhibits. They also requested reconsideration of the order dismissing their claims, which the court denied.

The court later granted Chugach summary judgment on the two remaining claims and entered a final judgment against the former directors. The former directors now appeal.

III. Discussion

A. Standard of Review

“We review the grant of a summary judgment motion de novo, affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law.”[1] This de novo standard applies even when the motion is not opposed in the trial court.[2] “The interpretation of a statute is a question of law to which we apply our independent judgment, interpreting the statute according to reason, practicality, and common sense, considering the meaning of the statute’s language, its legislative history, and its purpose.”[3]

B. The Superior Court Did Not Err When It Granted Summary Judgment To Chugach.

The former directors do not identify any disputed issues of fact that precluded summary judgment; instead, they advance numerous legal theories for why Chugach’s conduct surrounding the 2005 and 2006 elections violated their rights. The former directors also argue that the superior court erred in treating Chugach’s motion to dismiss as a summary judgment motion without giving them notice, and in “taking a default against” them because the motion was unopposed.

1. General principles of corporate law

The former directors argue that by favoring the board candidates, Chugach violated fundamental democratic principles established by public election cases[4] and rules of equity that promote fair shareholders’ meetings.[5] But we conclude that we should refer to the Alaska statutes and regulations, and corporate bylaws that more directly relate to the questions raised in this appeal.

The bylaws of a corporation may contain any provision “not in conflict with law or the articles of incorporation,” including “the time, place, and manner of calling, conducting and giving notice of” shareholders’ meetings and “the manner of execution, revocation, and use of proxies.”[6] Article II of Chugach’s bylaws gives the board of directors the authority to conduct shareholders’ meetings and to adopt rules for shareholder meetings, the election of directors, and “the solicitation, filing, and examination of proxies.”

A director of a corporation such as Chugach generally must exercise corporate duties “in good faith, in a manner the director reasonably believes to be in the best interests of the corporation, and with the care, including reasonable inquiry, that an ordinarily prudent person in a like position would use under similar circumstances.”[7]

2. Shareholder list issues

The former directors argue that Chugach failed to provide the shareholder information they sought in 2005 within a reasonable time, violating their right to information as directors under AS 10.06.450(d)[8] and their right to information as shareholders under AS 10.06.430(b).[9] Chugach argues that it provided the information within a reasonable time, two days before it mailed out its own proxy statement and the notice of the annual meeting. The superior court rejected the former directors’ arguments and granted summary judgment to Chugach on two alternative theories: (1) It concluded that Chugach provided the information within reasonable amount of time; and (2) it concluded that the former directors had not “follow[ed] through on their stated intention… to seek to inspect the shareholder list at the place of the registered office or principal place of business.”

Under AS 10.06.430(a), Chugach was required to keep “a record of its shareholders, containing the names and addresses of all shareholders and the number and class of the shares held by each.” And under AS 10.06.430(b), Chugach was required to make that record “reasonably available for inspection and copying” at the corporate office by a shareholder “upon written demand stating within reasonable particularity that purpose of inspection.” Also, under AS 10.06.450(d), any director of Chugach had “the absolute right at a reasonable time to inspect and copy all books, records, and documents of every kind.” Both AS 10.06.430(b) and 10.06.450(d) allow for inspection “in person or by agent or attorney.”

As the superior court noted, the former directors did not seek to inspect the shareholder information at Chugach’s corporate office.[10] The former directors argue that AS 10.06.430(b) and 10.06.450(d) require the corporation to actively deliver the shareholder records to directors or shareholders who request them.

“[T]he threshold question in ascertaining the correct interpretation of a statute is whether the language of the statute is clear or arguably ambiguous.”[11] The language of these statutes is clearly contrary to the former directors’ position. Under AS 10.06.450(d), directors have only the right to “inspect and copy” books, records, and documents. And AS 10.06.430(b) provides shareholders with a right only to “inspection and copying.” There is no mention in either statute of a right to have books, records, or documents delivered — electronically, by mail, or otherwise. The statutes require only that corporations permit directors and shareholders to inspect and copy the records in question.[12]

We therefore do not need to reach the issue of whether the time frame within which Chugach provided the former directors the shareholder information was reasonable. We hold that summary judgment was appropriate on the claims made under AS 10.06.430(b) and 10.06.450(d) because the former directors did not attempt to inspect and copy the 2005 shareholder records as required by these statutes.

The former directors also argue that these statutes required Chugach to provide the shareholders’ phone numbers and email addresses in 2006. Our holding that these statutes only require corporations to permit inspection of corporate records disposes of this argument. But we also note that none of the former directors was a Chugach director in 2006, and that they therefore had no rights under AS 10.06.450(d) at that time. We also note that AS 10.06.430(a) does not require a corporation to keep phone numbers and email addresses in its shareholder record, so AS 10.06.430(b) does not require corporations to permit shareholder inspection of that information.

3. Conversion of the motion to dismiss into a motion for summary judgment

After the superior court had entered summary judgment on the shareholder list issues, Chugach filed a motion asking the court to dismiss all but two of the remaining claims. The motion was labeled as a motion to dismiss, but it was supported by 13 exhibits. The critical exhibits were duplicates of exhibits that had been filed by the former directors in support of their motion for partial summary judgment the previous January. These exhibits included Chugach’s articles of incorporation, its bylaws, its proxy rules, the notice of the 2005 annual meeting, the 2005 voter’s guide, Chugach’s 2005 proxy form, its 2004 annual report, and the former directors’ requests to inspect the election ballots.[13]

The arguments in the motion to dismiss relied on these apparently uncontested exhibits. The essence of Chugach’s arguments was that the legal rules embodied in these corporate documents authorized the board’s actions with respect to the shareholders’ meetings discussed above. The memorandum attached to the motion noted that Alaska Civil Rule 12(b) permitted the court to treat the motion as one for summary judgment, and stated that summary judgment should be entered in favor of Chugach if there was no genuine issue as to any material fact and if Chugach was entitled to judgment as a matter of law.

Several months passed. The former directors submitted three motions for extension of time, but they filed no response to the motion even two months after the deadline they suggested in their final request. On March 27, 2007, the court granted the motion to dismiss on the form provided by Chugach.

Three days after the order of dismissal, the former directors filed an untimely response. Their response referred to the 25 exhibits that they had filed in January 2006, including the main exhibits that Chugach relied on in its motion to dismiss. The former directors also submitted 25 additional exhibits, enclosed with a cover notice that indicated that the exhibits were submitted pursuant to Alaska Civil Rule 56.

In the untimely opposition, the former directors objected to summary judgment and requested additional discovery, but they gave no indication about exactly what discovery they were requesting, nor did they explain what steps they had already taken to conduct discovery.[14] The text of their argument depended on exhibits — the exhibits attached to Chugach’s motion and those attached to the former directors’ response. The response did not include any indication that the former directors controverted the facts stated in the exhibits attached to Chugach’s motion; in fact, the former directors asked the court to consider the exhibits they had filed in January 2006 because they “provide[d] a factual basis for denying the pending motion to dismiss.”

The former directors now argue that the superior court erred in treating Chugach’s motion to dismiss as a summary judgment motion without giving them prior notice, and in “taking a default against” them because the motion was unopposed. Chugach argues that the former directors had adequate notice that the motion to dismiss would be treated as a summary judgment motion, and that the superior court appropriately considered the motion’s merits rather than granting it simply by default.

Alaska Civil Rule 12(b) provides that, on a motion to dismiss, if “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by Rule 56.” It further provides that if a motion to dismiss is treated as a summary judgment motion, “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

In other words, the superior court should give the non-moving party advance notice that a motion to dismiss has been converted to a motion for summary judgment so that the party can file an appropriate response.[15] When the superior court decides a motion under Rule 12(b)(6) without stating whether it is considering attached materials, this court has three options: “[W]e may reverse and remand for proper consideration, or we may review the superior court’s decision as if the motion for dismissal had been granted after exclusion of outside materials, or as if summary judgment had been granted after conversion of the motion to dismiss into one for summary judgment.”[16]

In this case, the superior court did not give the former directors any prior notice that it was converting the motion to dismiss into a motion for summary judgment. We must then determine whether that lack of notice prejudiced the former directors when they responded to the motion to dismiss. The critical issue is whether the former directors, as the non-moving party, “could have availed themselves of the opportunity to present evidence to oppose [the] motion if the superior court had expressly invited them to do so.”[17]

As noted above, the former directors told the court they “ha[d] not yet had their discovery” and argued that the court had to give them “an adequate opportunity… to submit additional proofs.” But the former directors filed their own motion for summary judgment on all of their claims — even those disposed of by the superior court’s March 2007 order — in late July 2007, months after they filed their untimely response. The July 2007 motion relied upon the same exhibits they attached to their untimely response to Chugach’s motion to dismiss, including the exhibits they had filed in January 2006. In other words, they produced no new evidence even after they had a full opportunity to conduct discovery. From this we conclude that the former directors would not have submitted additional evidence, even if they had been given an express opportunity to do so.[18]

In this appeal, the former directors have asked us to review substantively most of the issues that the superior court decided in the converted motion to dismiss. As we determine these issues, we consider all of the exhibits that the former directors submitted, including those filed after the superior court entered its order granting Chugach’s motion to dismiss. None of these exhibits raises any material issues of fact precluding summary judgment. Because we conclude that summary judgment was properly granted, the former directors suffered no prejudice from the conversion.

The former directors also argue that the superior court’s written addendum showed that the court entered summary judgment by default because of their failure to file a timely response to Chugach’s motion. Summary judgment should never be granted by default: A motion for summary judgment may be granted only if it is “otherwise appropriate” under Civil Rule 56(c).[19] But the superior court explained that it did not grant the motion by default; the court was convinced that there were no genuine issues of fact and that Chugach was entitled to judgment as a matter of law. We agree with the superior court’s conclusions.

4. Proxy statement issues

The former directors make a number of arguments about the propriety of Chugach’s 2005 proxy statements. They argue that Chugach failed to disclose that the election was contested and omitted the former directors’ names in its proxy materials, thereby violating Alaska law. Chugach argues that it was not required to include the former directors’ names in its proxy literature.

As a corporation under the Alaska Native Claims Settlement Act (ANCSA),[20] Chugach is subject to Alaska’s proxy regulations for ANCSA corporations[21] but not federal proxy regulations. Under the state regulations a proxy statement may not contain any material misrepresentations.[22] Also, a corporate board’s proxy statement must include “a description of each nominee of the board… and of each director whose term of office will continue after the shareholders’ meeting.[23]

Chugach was not required to include the former directors in the proxy statement because the board did not nominate them. And although Henrichs and Tabios were incumbent directors, Chugach was not required to include their names because their terms were scheduled to expire and therefore would not “continue after the shareholders’ meeting.”

The former directors also argue that Chugach’s 2005 proxy statement did not disclose the compensation for the chairman and directors and other financial information about the corporation. The proxy regulations do require a statement of the individual compensation for the five most highly compensated officers.[24] But Chugach’s 2005 proxy statement complied with this regulation, listing the compensation for the corporation’s president and chief executive officer, its chief financial officer, its vice president, its controller, and its director of government services.

The proxy regulations also require a statement of remuneration for all officers and directors as a group “without naming them.”[25] Chugach’s 2005 proxy statement complied with this regulation, stating the “total remuneration distributed or accrued to the 27 officers and directors of [Chugach] and its subsidiaries during the fiscal year.”

The former directors also argue that the proxy statement did not state the net value per share of stock. But a statement of value per share is not required by the proxy regulations.[26] Nonetheless, Chugach provided equivalent information: The proxy statement provided the number of shares outstanding, and the annual report stated the total value of the shareholders’ equity. In summary, the proxy statement complied with all of the applicable proxy regulations regarding notice of compensation and other financial data.

The former directors also argue that Chugach acted illegally when it offered eligibility for early-bird prizes to shareholders who returned their proxies for “any proxy holder or candidate” by September 23, 2005.[27] They argue that this incentive is an illegal “distribution” in violation of various sections of the corporations code that discourage discrimination between holders of shares of the same class and series of stock.[28] They also argue that the prizes were “vote buying” and that the deadline for eligibility was unfair.

A shareholder “distribution” is defined as “the transfer of cash or property… without consideration, whether by ways of dividend of otherwise.”[29] The prizes are not “distributions” under this definition because eligibility for the prizes was granted in exchange for consideration: the early return of a valid proxy.[30]

Chugach’s bylaws authorize this type of incentive (and the corresponding deadline) under the board’s authority to adopt rules for the solicitation of proxies, and the incentive did not favor any candidate.

5. Other shareholders’ meeting claims

The former directors also make a number of arguments in connection with the 2005 shareholders’ meeting. They argue that the staggered terms for Chugach board members were illegal. But staggered terms are expressly permitted by AS 10.06.455(a).[31]

The former directors argue that Chugach “delays its annual meetings so far after the close of its fiscal year that shareholders do not have current financial data with which to evaluate the incumbents.” But there is nothing in the record indicating that Chugach violated the requirements for distribution of its annual report.[32] And the law dealing with the scheduling of shareholders’ meetings provides only that meetings “shall be held at the time as provided in the bylaws.”[33] Chugach’s bylaws provide that the annual meeting will be held on the “second Saturday in October of each year,” and that is when the meeting was held in 2005.

The former directors argue that their right to inspect corporate records included a right to review and inspect the ballots from the election held at the 2005 annual meeting, and that Chugach violated that right. But Chugach’s proxy rules provided that “after adjournment of the annual meeting” the inspector was required to maintain the ballots and to prohibit inspection “except upon written authorization from the Corporation in the form [of] a certified board resolution.” This rule falls within the board’s authority to provide for the election of directors.[34] Henrichs and Burk each wrote letters to the election inspector requesting to inspect the ballots cast at the meeting, but neither sought authorization from the board.

The motion to dismiss we discuss in section III.B.3 above included two claims that the former directors did not separately address in their appeal brief — claims related to a one-day change in the proxy deadline and assertions in Chugach’s supplemental proxy statement. We see no prejudice in the conversion of the motion with respect to these issues. The proxy rules expressly permitted the board of directors to change the time by which proxies were due. The former directors suffered no prejudice from the change in the proxy deadline because the new date conformed to the deadline printed on their own proxy statements.

With respect to the supplemental proxy statement, the former directors alleged in their amended complaint that the statement cast their lawsuit in an unfair light. But in their untimely response to the motion to dismiss, they failed to discuss this issue at all. We have independently reviewed the record and find no issue of fact precluding summary judgment on this claim.

The former directors make various other complaints about Chugach’s conduct regarding the annual meeting. But none of these complaints appears to involve misconduct that violated any provision of Alaska law or the corporate bylaws.

IV. Conclusion

For these reasons we AFFIRM the superior court’s orders granting summary judgment and dismissing the former directors’ claims against Chugach Alaska Corporation.

Stratman vs. Leisnoi, Inc.

I. INTRODUCTION

This litigation has been festering now for over thirty years. It involves a challenge under the Administrative Procedure Act (“APA”) to the 1974 certification of a Native village under the Alaska Native Claims Settlement Act (“ANCSA”). Plaintiff essentially argues that Woody Island did not qualify and should not have been certified as a Native village under ANCSA. Plaintiff seeks to have Leisnoi, Inc., the village corporation for Woody Island, stripped of the status and benefits conferred upon it under ANCSA.[1] Over ten years ago, this Court remanded this dispute to the Interior Board of Land Appeals (“IBLA”) for a belated exhaustion of administrative remedies. The agency review has finally matured from the seed of remand to a final decision by the Secretary of the Interior concluding that Stratman’s challenge was rendered moot by congressional action recognizing the village.

Stratman disagrees with the final disposition of his administrative sojourn and has returned to the Court seeking summary judgment setting aside the Secretary’s original 1974 decision to certify Leisnoi.[2] Defendants meanwhile have been very busy filing seven separate motions to dismiss.[3] Leisnoi has requested oral argument on these motions to dismiss.[4] Koniag has filed a counterclaim alleging violations of a previous settlement agreement.[5] Finally, there are a handful of miscellaneous motions which the Court must address to clean up the docket.[6]

II. BACKGROUND

The facts of this case have been set out on several occasions and are well known to the parties. See, e.g. Stratman v. Watt, 656 F.2d 1321 (9th Cir. 1981); Leisnoi, Inc. v. Stratman, 835 P.2d 1202 (Alaska 1992). The following facts, upon which the Secretary relied, are sufficient for purposes of this Order:

In 1974, the Secretary, on the basis of a determination by the BIA, certified Leisnoi as a Native village under ANCSA in the Koniag region of Alaska and then subsequently conveyed to Leisnoi the surface estate of approximately 160,000 acres of public lands that Leisnoi had selected in satisfaction of its aboriginal land claims. In accordance with the requirements of ANCSA, the subsurface estate of that acreage was conveyed to Koniag Regional Corporation (Koniag)…

In 1976, Omar Stratman (Stratman), a rancher with grazing leases in the area from which Leisnoi was entitled to select its land, sued in Federal court challenging Leisnoi’s status as a Native village eligible for ANCSA benefits. Stratman had not pursued his administrative remedies. The district court dismissed his action, concluding he lacked standing. In 1981, the Court of Appeals for the Ninth Circuit reversed the district court, finding that Stratman had standing based on his recreational interest, and reinstated Stratman’s claim. The court also excused Stratman’s failure to exhaust his administrative remedies because, as a lessor, he was entitled to, but did not, receive actual notice of Leisnoi’s entitlement to the land.

In 1982, Stratman entered an agreement with Koniag, with which Leisnoi had merged, to drop his litigation challenging Leisnoi’s eligibility. The agreement failed, however, after Leisnoi’s merger with Koniag was voided and Leisnoi repudiated the agreement in 1985. In 1994, the Ninth Circuit ordered Stratman’s challenge to Leisnoi’s eligibility reinstated.

In 1995, the district court stayed the litigation. Noting that this appears to be the perfect case to read ripeness and primary jurisdiction together to require that Stratman litigate his challenge to Leisnoi before the agency before he brings it here, the court sent the case to IBLA for consideration of Stratman’s challenge to Leisnoi. The court explained that [remand would] permit the exhaustion of administrative remedies, albeit belated, and give the Court the benefit of the agency’s expertise…

The IBLA rendered its decision on October 29, 2002, three years after the recommended decision by the Administrative Law Judge. The IBLA concluded that it lacked subject matter jurisdiction of the cases, but nonetheless reviewed and endorsed the Administrative Law Judge’s recommended decision and prepared a written “analysis of the legal issues” for the benefit of the district court in obedience to its mandate.

Docket No. 96, Attach. 2 at 2-3 (internal quotation marks and citations omitted).

Although the IBLA decided it lacked jurisdiction, it adopted the Administrative Law Judge’s findings, concluding that Leisnoi did not qualify as a Native village under ANCSA. See Stratman v. Leisnoi, Inc., 157 IBLA 302, 319-20 (2002). Stratman filed this current case in 2002 seeking to have the IBLA decision translated into an order stripping Leisnoi of its status and benefits under ANCSA. See Docket No. 4. The Department of the Interior (“DOI”) however was not finished with the dispute and the Court stayed proceedings pending a final decision by the Secretary of the Interior. Docket No. 34.

On December 20, 2006, the Secretary found the agency had jurisdiction and disapproved the decision of the IBLA, adopting as his final decision the reasoning, analysis and conclusions of a memorandum written by Solicitor Bernhardt. Docket No. 96, Attach. 1. The Secretary’s decision concluded: (1) that the IBLA had jurisdiction over the case; (2) that 43 C.F.R. § 2651.2(a)(5) required the Secretary to review the IBLA decision; and (3) that section 1427 of ANILCA ratified the DOI’s 1974 eligibility determination, thus mooting this case. Docket No. 96, Attach. 2 at 2-4. The Secretary’s decision brought Stratman’s belated administrative appeal to an end and marked the exhaustion of administrative remedies and the resumption of proceedings before this Court.

Plaintiff filed his Third Amended Complaint in February of 2007, essentially renewing his APA challenge to the Secretary’s original 1974 decision to certify Leisnoi as an eligible ANCSA Native village. Docket No. 105. Plaintiff contends that the IBLA decision has superseded the Secretary’s original 1974 decision and is now the final decision binding the parties and the Court. Id. at 11. Accordingly, Plaintiff seeks a judgment affirming the IBLA’s decision and stripping Leisnoi of the status and benefits conferred upon it under ANCSA. Id.

Defendants Leisnoi and Koniag have filed motions to dismiss arguing that congressional ratification of Leisnoi’s status has mooted this controversy. Docket No. 120 (Leisnoi mot.); 121 (Leisnoi mem.); 143 (Koniag mot.); 145 (Koniag mem.); 171 (Stratman opp’n); 198 (Leisnoi reply); 210 (Koniag reply). The Government has filed a memorandum and a reply discussing the merits of the issues. See Docket Nos. 149 (Govt. mem.); 209 (Govt. reply). The Court reviews both motions to dismiss for lack of subject matter jurisdiction under rule 12(b)(1) of the Federal Rules of Civil Procedure.

III. STANDARD OF REVIEW

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek to dismiss a complaint for “lack of jurisdiction over the subject matter.” Fed. R. Cov. P. 12(b)(1). When considering a Rule 12(b)(1) motion, the Court is not restricted to the face of the pleadings, but may review any evidence, such as declarations and testimony, to resolve any factual disputes concerning the existence of jurisdiction. See McCarthy v. United States, 850 F.2d 558, 560 (9th cir. 1988). The burden of proof on a Rule 12(b)(1) motion is on the party asserting jurisdiction. See Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995). A reviewing court must presume a lack of jurisdiction until the plaintiff establishes otherwise. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A complaint will be dismissed for lack of subject matter jurisdiction (1) if the case does not “arise under” any federal law or the United States Constitution, (2) if there is no controversy within the meaning of that constitutional term, or (3) if the cause is not one described by any jurisdictional statute. See Baker v. Carr, 369 U.S. 186, 198 (1962).

Federal courts lack subject matter jurisdiction to adjudicate moot issues: “no justiciable controversy is presented… when the question sought to be adjudicated has been mooted by subsequent development.” Flast v. Cohen, 392 U.S. 83, 95 (1968). The Ninth Circuit has found that “to avoid mootness, the court must determine that the issues in a case remain live and that the parties continue to have a legally cognizable interest in the outcome throughout the proceeding.” So. Oregon Barter Fair v. Jackson County, 372 F.3d 1128, 1133 (9th Cir. 2004) (citing City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)). Congressional ratification can render moot a live controversy. See Equal Employ. Opport. Commission v. First Citizens Bank of Billings, 758 F.2d 397, 399-400 (9th Cir. 1985).

IV. DISCUSSION

Section 1427 of ANILCA instructs the Secretary of the Interior to “convey… the surface estate of all of the public lands on Afognak Island” to a joint venture comprised of the “Koniag Deficiency Village Corporations.” Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487, § 1427(b)(1), (c), 94 Stat. 2371, 2519-23 (1980). Leisnoi is specifically enumerated as one of the Koniag deficiency village corporations. Id. at § 1427(a)(4). The conveyance was to be made “in full satisfaction” of, among other things, “the right of each Koniag Deficiency Village Corporation to conveyance under [ANCSA] of the surface estate of deficiency village acreage on the Alaska Peninsula.” Id. at § 1427(b)(1).

Defendants argue that section 1427 of ANILCA ratified the Secretary’s 1974 certification of Leisnoi as a Native village eligible for benefits under ANCSA, consequently rendering moot Stratman’s claim that the 1974 certification was arbitrary and capricious. See Docket Nos. 121 at 8; 145 at 4-9; 149 at 1. They further argue that the Secretary’s interpretation supporting their contention is due deference under Chevron, or Skidmore in the alternative. Stratman argues that no deference is due, and that section 1427 cannot be read as ratifying Leisnoi’s eligibility, or as exempting Leisnoi from the threshold requirements for certification as a Native village. See Docket No. 171 at 6-51.

A. The Secretary’s Interpretation of Section 1427 is Entitled to Deference.

In this case, the question of mootness turns on interpretation of section 1427 of ANILCA. Defendants argue that the Secretary’s interpretation of section 1427 of ANILCA is due deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) or alternatively Skidmore v. Swift & Co., 323 U.S. 134 (1944).

In reviewing an agency’s interpretation of a statute the agency administers, a court first looks to see whether “Congress has directly spoken on the precise question.” Chevron U.S.A., 467 U.S. at 843. If Congress has not addressed the specific issue, or if the statute is ambiguous, the question is whether the agency’s interpretation is permissible. Id. Courts accord great deference to the interpretation of a statute by the agency or agencies entrusted with its implementation, and will uphold the agency interpretation so long as it is reasonable. Kunaknana v. Clark, 742 F.2d 1145, 1150 (9th Cir. 1984). To satisfy the reasonableness standard it is not necessary for the court to find that the agency’s construction of the statute is the only reasonable interpretation, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Id. Rather, the agency interpretation must merely be within the range of reasonable meanings which the words of the statute permit. See Id. at 1152.

In determining whether to apply Chevron deference, this Court looks to United States v. Mead Corp. 533 U.S. 218 (2001). In Mead, the Supreme Court wrote that such deference is appropriate when circumstances imply that Congress expects the “agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law.” Id. at 229. The authority to engage in formal rulemaking or adjudication is a solid indicator of when the authority to speak with the force of law exists. Id.

The Ninth Circuit has repeatedly accorded great deference to the Department of the Interior’s interpretation of ANCSA. See Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990) (according deference to agency’s interpretation of ANCSA eligibility requirements); Seldovia Native Ass’n, Inc., v. Lujan, 904 F.2d 1335, 1342 (9th Cir. 1990); Haynes v. United States, 891 F.2d 235, 238-39 (9th Cir. 1989). Similarly, courts have found that the DOI deserves Chevron deference in its interpretation of ANILCA. See Ninilchik Traditional Council v. United States, 227 F.3d 1186, 1191 (9th Cir. 2000); Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995); Native Village of Quinhagak v. United States, 35 F.3d 388, 392 (9th Cir. 1994).

Here, the Secretary of the Interior has interpreted the intersection of section 1427 of ANILCA with the village eligibility requirements of ANCSA. ANILCA makes the relationship clear, placing section 1427 under Title XIV of ANILCA which is entitled “Amendments to the Alaska Native Claims Settlement Act and Related Provisions.” See ANILCA Title XIV, 94 Stat. 2491. Further, section 1427 specifically names the Secretary of the Interior as the government actor who must implement the provisions of the section. ANILCA § 1427(b)(1). The Court is satisfied that Congress expected the DOI to speak with the force of law in resolving ambiguities contained within ANILCA generally, and section 1427 specifically.

Under the first prong of Chevron, the provision interpreted by the agency must be ambiguous. Chevron U.S.A., 467 U.S. at 843. Stratman argues that the Secretary’s interpretation is simply not ambiguous after applying canons of construction. Docket No. 171 at 51-52. As this Court has stated in the past, the question of whether ANILCA ratified Leisnoi’s eligibility is a difficult question. The Secretary demonstrates in his opinion that because Leisnoi’s status was under judicial review at the time ANILCA was passed, it is unclear whether Congress intended section 1427(b)(1) as ratification of Leisnoi’s eligibility, or simply as an acknowledgment that Leisnoi had an entitlement to certain acreage if Stratman’s challenge were unsuccessful. See Docket No. 96, Attach. 2 at 10. Subsection (a)(2) posed a similar ambiguity because Congress appeared to be stating that Leisnoi was entitled to benefits under ANCSA section 14(a), but the eligibility determination was still under review. Id. The differences in opinion on this issue between the IBLA and the Secretary further highlight the ambiguity involved. See Docket No. 96, Attach. 2 at 5-13. The Court is satisfied that it was not clear on the face of the section 1427 whether Congress intended to ratify Leisnoi’s eligibility under ANCSA.

Under the second prong of Chevron, the Secretary’s conclusion that section 1427 ratified the original 1974 eligibility decision must be reasonable. See Chevron U.S.A., 467 U.S. at 843. The Court finds the Secretary’s interpretation of section 1427 not only reasonable, but persuasive.

First, the Secretary based his interpretation on the time-honored canon of reading a statute as a whole. See Docket No. 96, Attach. 2 at 10; Washington State Dep’t of Soc. and Health Servs. v. Keffeler, 537 U.S. 371, 384 n.7 (2003). Read as a whole, the Court agrees that certainty about the status of Leisnoi was a necessary predicate to achieving the finality sought broadly by ANILCA across Alaska, and narrowly by section 1427 in the Koniag region. See Docket No. 96, Attach. 2 at 6-10.

Second, the Secretary applied the canon of statutory construction that “remedial legislation should be construed broadly to effectuate its purposes.” Id. at 11 (quoting Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)). Keeping in mind the background of ANCSA and the specific problems of land selection in the Koniag region, it is more than reasonable to conclude that settling Leisnoi’s eligibility was a necessary predicate to effectuating Congress’ purpose of settling Koniag’s land entitlement quickly and permanently. See Docket No. 96, Attach. 2 at 6-11.

Third, the Secretary looked to the legislative history and demonstrated that Congress was aware of the doubts as to Leisnoi’s eligibility at the time it passed section 1427. Id. at 11-12. The Secretary’s conclusion that awareness implies ratification is bolstered by the fact that Congress dealt separately in section 1427 with other villages whose eligibility was less certain by offering them diminished benefits in settlement of their claims. See ANILCA § 1427(e). If Congress went to all the trouble to settle the status of these other villages, why would Congress leave Leisnoi’s status up to the courts when bringing finality to the land selection process was one of Congress’ chief aims in ANILCA?

The Court concludes that the Secretary’s interpretation was not only permissible, but persuasive. Although the Court finds that the Secretary’s interpretation must be upheld under Chevron deference, the Court notes that it would have come to the same conclusion had it been interpreting the statute in the first instance, or under the persuasive deference standard found in Skidmore.

B. Ratification Moots Stratman’s Claim

Stratman’s challenge is to the Secretary’s 1974 certification of Leisnoi’s eligibility for ANCSA benefits. The Court has concluded that Congress ratified the Secretary’s decision when it enacted section 1427 of ANILCA. It therefore no longer matters whether the Secretary’s original decision was flawless or arbitrary and capricious. With section 1427, Congress effectively decided to overlook any doubts as to Leisnoi’s eligibility or shortcomings in the Secretary’s 1974 determination in order to settle the land selection process in the Koniag region with finality. Stratman’s challenge to the original determination is therefore moot. Regardless of the merits of his central contention, the political branches are now his only recourse.

IT IS THEREFORE ORDERED:

Stratman’s challenge to Leisnoi’s eligibility is moot. As this Court lacks subject matter jurisdiction, the Motion to dismiss at Docket No. 120 is GRANTED. The Motion for extension of time at Docket No. 202 is GRANTED. The Motion for leave to file excess pages at Docket No. 169 is GRANTED. The Motion for oral argument at Docket No. 211 is DENIED as noted supra. The Motions at Docket Nos. 107; 109; 111; 118; 143; 177; 178; 189; 193; 205; and 207 are DENIED as they are now moot. Koniag’s Counterclaim at Docket No. 200 is also DISMISSED as it is now moot.

Dated this 26th day of September 2007.
James Singleton, Jr.
United States District Judge

Yellen v. Confederated Tribes of Chehalis Reservation

Synopsis 

Background: Federally recognized Indian tribes brought actions challenging Treasury Secretary’s announcement that Alaska Native regional and village corporations (ANC) were eligible for emergency aid set aside for tribal governments under Coronavirus Aid, Relief, and Economic Security (CARES) Act. After cases were consolidated, the United States District Court for the District of Columbia, Amit P. Mehta, J., granted summary judgment to government and ANCs. Tribes appealed. The United States Court of Appeals for the District of Columbia Circuit, Katsas, Circuit Judge, 976 F.3d 15, reversed. Certiorari was granted.

The Supreme Court, Justice Sotomayor, held that while ANCs are not federally recognized tribes in a sovereign political sense, they are “Indian tribes” under plain definition in Indian Self-Determination and Education Assistance Act (ISDA), and thus, they are eligible to receive monetary relief under the CARES Act.

Reversed and remanded.

Justice Alito joined in part.

Justice Gorsuch filed a dissenting opinion, in which Justices Thomas and Kagan joined.

Procedural Posture(s): Petition for Writ of Certiorari; On Appeal; Motion for Summary Judgment.

Syllabus[*]

Title V of the Coronavirus Aid, Relief, and Economic Security (CARES) Act allocates $8 billion to “Tribal governments” to compensate for unbudgeted expenditures made in response to COVID–19. 42 U.S.C. § 801(a)(2)(B). The question in these cases is whether Alaska Native Corporations (ANCs) are eligible to receive any of that $8 billion. Under the CARES Act, a “Tribal government” is the “recognized governing body of an Indian tribe” as defined in the Indian Self-Determination and Education Assistance Act (ISDA). §§ 801(g)(5), (1). ISDA, in turn, 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 [(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).

Consistent with the Department of the Interior’s longstanding view that ANCs are Indian tribes under ISDA, the Department of the Treasury determined that ANCs are eligible for relief under Title V of the CARES Act, even though ANCs are not “federally recognized tribes” (i.e., tribes with which the United States has entered into a government-to-government relationship). A number of federally recognized tribes sued. The District Court entered summary judgment for the Treasury Department and the ANCs, but the Court of Appeals for the District of Columbia Circuit reversed.

Held: ANCs are “Indian tribe[s]” under ISDA and thus eligible for funding under Title V of the CARES Act. Pp. 2441 – 2452.

(a) The ANCs argue that they fall under the plain meaning of ISDA’s definition of “Indian tribe.” Respondents ask the Court to adopt a term-of-art construction that equates being “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians” with being a “federally recognized tribe.” Pp. 2441 – 2443.

(1) Under the plain meaning of ISDA, ANCs are Indian tribes. ANCs are “established pursuant to” ANCSA and thereby “recognized as eligible” for that Act’s benefits. ANCSA, which made ANCs eligible to select tens of millions of acres of land and receive hundreds of millions of tax-exempt dollars, 43 U.S.C. §§ 1605, 1610, 1611, is a special program provided by the United States to “Indians,” i.e., Alaska Natives. Given that ANCSA is the only statute ISDA’s “Indian tribe” definition mentions by name, eligibility for ANCSA’s benefits satisfies the definition’s final “recognized-as-eligible” clause. Pp. 2441 – 2443.

(2) Respondents ask the Court to read ISDA’s “Indian tribe” definition as a term of art. But respondents fail to establish that the language of ISDA’s recognized-as-eligible clause was an accepted way of saying “a federally recognized tribe” in 1975, when ISDA was passed. Nor is the mere inclusion of the word “recognized” enough to import a term-of-art meaning. Respondents also fail to show that the language of the recognized-as-eligible clause later became a term of art that should be backdated to ISDA’s passage in 1975. Pp. 2443 – 2447.

(3) Even if ANCs did not satisfy the recognized-as-eligible clause, they would still satisfy ISDA’s definition of an “Indian tribe.” If respondents were correct that only a federally recognized tribe can satisfy that clause, then the best way to read the “Indian tribe” definition would be for the recognized-as-eligible clause not to apply to ANCs at all. Otherwise, despite being prominently “includ[ed]” in the “Indian tribe” definition, 25 U.S.C. § 5304(e), all ANCs would be excluded by a federal-recognition requirement there is no reasonable prospect they could ever satisfy. Pp. 2447 – 2450.

(4) Respondents’ remaining arguments that ANCs are not Indian tribes under ISDA are unpersuasive. They first argue that the ANCs misrepresent how meaningful a role they play under ISDA because the actual number of ISDA contracts held by ANCs is negligible. This point is largely irrelevant. No one would argue that a federally recognized tribe was not an Indian tribe under ISDA just because it had never entered into an ISDA contract. Respondents further argue that treating ANCs as Indian tribes would complicate the administration of ISDA. But respondents point to no evidence of such administrative burdens in the 45 years the Executive Branch has treated ANCs as Indian tribes. Respondents also warn that blessing ANCs’ status under ISDA will give ANCs ammunition to press for participation in other statutes that incorporate ISDA’s “Indian tribe” definition. This concern cuts both ways, as adopting respondents’ position would presumably exclude ANCs from the many other statutes incorporating ISDA’s definition, even those under which ANCs have long benefited. Pp. 2450 – 2451.

(b) One respondent tribe further argues that the CARES Act excludes ANCs regardless of whether they are Indian tribes under ISDA, because ANCs do not have a “recognized governing body.” In the ISDA context, the term “recognized governing body” has long been understood to apply to an ANC’s board of directors, and nothing in either the CARES Act or ISDA suggests that the term places additional limits on the kinds of Indian tribes eligible to benefit under the statutes. Pp. 2447 – 2452.

976 F.3d 15, reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C.J., and BREYER, KAVANAUGH, and BARRETT, JJ., joined, and in which ALITO, J., joined as to Parts I, II–C, II–D, III, and IV. GORSUCH, J., filed a dissenting opinion, in which THOMAS and KAGAN, JJ., joined.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


Attorneys and Law Firms

Elizabeth B. Prelogar, Acting Solicitor General, Counsel of Record, Brian M. Boynton, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Matthew Guarnieri, Assistant to the Solicitor General, Michael S. Raab, Daniel Tenny, Adam C. Jed, Attorneys Department of Justice, Washington, DC, for Petitioner.

Riyaz A. Kanji, Counsel of Record, Kanji & Katzen, P.L.L.C., Ann Arbor, MI, Cory J. Albright, Katie E. Jones, Lynsey R. Gaudioso, Kanji & Katzen, P.L.L.C., Seattle, WA, Kannon K. Shanmugam, Paul, Weiss, Rifkind, Wharton, & Garrison LLP, Washington, DC, for Confederated Tribes of the Chehalis Reservation and Tulalip Tribes, for Akiak Native Community, Aleut Community of St. Paul Island, Asa’carsarmiut Tribe, and Houlton Band of Maliseet Indians.

Erin C. Dougherty Lynch, Matthew N. Newman, Wesley James Furlong, Megan R. Condon, Native American Rights Fund, Anchorage, AK, John E. Echohawk, Native American Rights Fund, Boulder, CO, for Arctic Village Council, Native Village of Venetie Tribal Government, Nondalton Tribal Council, and Rosebud Sioux Tribe.

Nicole E. Ducheneaux, Big Fire Law & Policy Group LLP, Bellevue, NE, for Cheyenne River Sioux Tribe.

Lisa Koop Gunn, Senior Attorney, Tulalip Tribes, Tulalip, WA, for Tulalip Tribes.

Harold Chesnin, Lead Counsel for the Tribe Oakville, WA, for Confederated Tribes of the Chehalis Reservation.

Doreen McPaul, Attorney General, Paul Spruhan, Assistant Attorney General, Jason Searle, Navajo Nation Department of Justice, Window Rock, AZ, Richard W. Hughes, Donna M. Connolly, Reed C. Bienvenu, Rothstein Donatelli LLP, Santa Fe, NM, for Pueblo of Picuris, for Navajo Nation.

Bradley G. Bledsoe Downes, General Counsel, Crescent City, CA, for Elk Valley Rancheria, California.

Eric Dahlstrom, April E. Olson, Rothstein Donatelli LLP, Tempe, AZ, Lori Bruner, Quinault Office of the Attorney General, Taholah, WA, for Quinault Indian Nation.

Alexander B. Ritchie, Attorney General, San Carlos Avenue, San Carlos, AZ, for San Carlos Apache Tribe.

Jeffrey S. Rasmussen, Frances C. Bassett, Jeremy J. Patterson, Patterson Earnhart Real Bird & Wilson, Louisville, CO, for Respondent.

Paul D. Clement, Counsel of Record, Erin E. Murphy, Ragan Naresh, Matthew D. Rowen, Kirkland & Ellis LLP, Washington, DC, for Petitioners.


Opinion

Justice SOTOMAYOR delivered the opinion of the Court:[*]

In March 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 134 Stat. 281. Title V of the Act allocates $8 billion of monetary relief to “Tribal governments.” 134 Stat. 502, 42 U.S.C. § 801(a)(2)(B). Under the CARES Act, a “Tribal government” is the “recognized governing body of an Indian tribe” as defined in the Indian Self-Determination and Education Assistance Act (ISDA). §§ 801(g)(5), (1). ISDA, in turn, 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[,] 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 Department of the Treasury asked the Department of the Interior, the agency that administers ISDA, whether Alaska Native Corporations (ANCs) meet that definition. Consistent with its longstanding view, the Interior Department said yes. The Treasury Department then set aside approximately $500 million of CARES Act funding for the ANCs. The question presented is whether ANCs are “Indian tribe[s]” under ISDA, and are therefore eligible to receive the CARES Act relief set aside by the Treasury Department. The Court holds that they are.

I

This is not the first time the Court has addressed the unique circumstances of Alaska and its indigenous population. See, e.g., Sturgeon v. Frost, 587 U.S. ––––, 139 S.Ct. 1066, 203 L.Ed.2d 453 (2019); Sturgeon v. Frost, 577 U.S. 424, 136 S.Ct. 1061, 194 L.Ed.2d 108 (2016); Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998); Metlakatla Indian Community v. Egan, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562 (1962). The “simple truth” reflected in those prior cases is that “Alaska is often the exception, not the rule.” Sturgeon, 577 U.S. at 440, 136 S.Ct. 1061. To see why, one must first understand the United States’ unique historical relationship with Alaska Natives.

A

When the United States purchased the Territory of Alaska from Russia in 1867, Alaska Natives lived in communities dispersed widely across Alaska’s 365 million acres. In the decades that followed, “[t]here was never an attempt in Alaska to isolate Indians on reservations,” as there had been in the lower 48 States. Metlakatla Indian Community, 369 U.S. at 51, 82 S.Ct. 552. As a consequence, the claims of Alaska Natives to Alaskan land remained largely unsettled even following Alaska’s admission to the Union as our 49th State in 1959.[2] See Alaska Statehood Act, § 4, 72 Stat. 339; Sturgeon, 577 U.S. at 429, 136 S.Ct. 1061.

That changed in 1971 with the Alaska Native Claims Settlement Act (ANCSA). 85 Stat. 688, 43 U.S.C. § 1601 et seq. ANCSA officially dispensed with the idea of recreating in Alaska the system of reservations that prevailed in the lower 48 States. It extinguished Alaska Natives’ claims to land and hunting rights and revoked all but one of Alaska’s existing reservations. § 1610. In exchange, “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” ANCSA. Native Village of Venetie Tribal Government, 522 U.S. at 524, 118 S.Ct. 948. These corporations are called ANCs.

Relevant here, ANCs come in two varieties: regional ANCs and village ANCs. To form the regional ANCs, the Act directed the Secretary of the Interior to divide Alaska into 12 geographic regions. § 1606(a). Within each region, Alaska Natives were instructed to “incorporate under the laws of Alaska a Regional Corporation to conduct business for profit.” § 1606(d). To form the village ANCs, the Act identified approximately 200 Alaska “Native villages,” a term encompassing any community of 25 or more Alaska Natives living together as of the 1970 census. §§ 1602(c), 1610(b), 1615(a). For each Alaska Native village, ANCSA ordered the “Native residents” to create an accompanying village corporation to “hold, invest, manage and/or distribute lands, property, funds, and other rights and assets for and on behalf ” of the village. §§ 1602(j), 1607(a). ANCSA then directed the Secretary to prepare a roll showing the region and, if applicable, village to which each living Alaska Native belonged. § 1604. Enrolled Alaska Natives then received shares in their respective ANCs. §§ 1606(g), 1607.

B

In 1975, four years after ANCSA’s enactment, Congress passed ISDA. 25 U.S.C. § 5301 et seq. ISDA answered the call for a “new national policy” of “autonomy” and “control” for Native Americans and Alaska Natives. H.R. Doc. No. 91–363, p. 3 (1970); see also Menominee Tribe of Wis. v. United States, 577 U.S. 250, 252, 136 S.Ct. 750, 193 L.Ed.2d 652 (2016) (“Congress enacted [ISDA] in 1975 to help Indian tribes assume responsibility for aid programs that benefit their members”).

ISDA decentralized the provision of federal Indian benefits away from the Federal Government and toward Native American and Alaska Native organizations. ISDA allows any “Indian tribe” to request that the Secretary of the Interior enter into a self-determination contract with a designated “tribal organization.” § 5321(a)(1). Under such a contract, the tribal organization delivers federally funded economic, infrastructure, health, or education benefits to the tribe’s membership.

As originally drafted, ISDA’s “Indian tribe” definition did not mention ANCs. H.R. 6372, 93d Cong., 1st Sess., § 1(a) (1973) (defining “Indian tribe” to mean “an Indian tribe, band, nation, or Alaska Native Community for which the Federal Government provides special programs and services because of its Indian identity”). Prior to passage, however, the definition was amended twice to include, first, Alaska Native villages and, second, ANCs. See H.R. Rep. No. 93–1600, p. 14 (1974) (“The Subcommittee amended the definition of ‘Indian tribe’ to include regional and village corporations established by [ANCSA]”). Today, 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 [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.” § 5304(e).[3]

Despite the express inclusion of ANCs in the definition of “Indian tribe,” a question arose in the Interior Department whether the “recognized-as-eligible clause” limits the definition to “federally recognized tribes” only. A federally recognized tribe is one that has entered into “a government-to-government relationship [with] the United States.” 1 F. Cohen, Handbook of Federal Indian Law § 3.02[3] (N. Newton ed. 2012). This recognition can come in a number of ways: “from treaty, statute, executive or administrative order, or from a course of dealing with the tribe as a political entity.” W. Canby, American Indian Law in a Nutshell 4 (7th ed. 2020). As private companies incorporated under state law, ANCs have never been “recognized” by the United States in this sovereign political sense.

In 1976, the year after ISDA’s enactment, the Interior Department’s Assistant Solicitor for Indian Affairs issued a memorandum on the status of ANCs under ISDA. App. 44–48. In the Assistant Solicitor’s view, the express inclusion of ANCs within the definition of “Indian tribe” confirmed that ANCs are Indian tribes under ISDA, even though they are not federally recognized tribes. In the decades since, the Interior Department has repeatedly reaffirmed that position. See, e.g., 60 Fed. Reg. 9250 (1995) (ANCs “ha[ve] been designated as ‘tribes’ for the purposes of some Federal laws,” including ISDA); 58 Fed. Reg. 54364 (1993) (ANCs “are not governments, but they have been designated as ‘tribes’ for the purposes of ” ISDA); 53 Fed. Reg. 52833 (1988) (ISDA “specifically include[s]” ANCs).

C

In 2020, Congress incorporated ISDA’s “Indian tribe” definition into the CARES Act. 42 U.S.C. § 801(g)(1). Title V of the Act allocates $150 billion to “States, Tribal governments, and units of local government” to compensate for unbudgeted expenditures made in response to COVID–19. § 801(a)(1). Of that $150 billion, $8 billion is reserved for “Tribal governments.” § 801(a)(2)(B). A “Tribal government” is the “recognized governing body of an Indian Tribe,” as ISDA defines the latter term. §§ 801(g)(5), (1).

On April 23, 2020, the Treasury Department determined that ANCs are eligible for CARES Act relief, and set aside more than $500 million for them (since reduced to approximately $450 million). App. 53–54; Letter from E. Prelogar, Acting Solicitor General, to S. Harris, Clerk of Court (May 12, 2021). Soon after the Treasury Department’s announcement, a number of federally recognized tribes (respondents) sued, arguing that only federally recognized tribes are Indian tribes under ISDA, and thus under the CARES Act. Some Tribes further argued that ANCs do not have a “recognized governing body” for purposes of the CARES Act and are ineligible to receive its funding for that reason as well.

The suits were consolidated in the District Court for the District of Columbia, which ultimately entered summary judgment for the Treasury Department and the ANCs. The Court of Appeals for the District of Columbia Circuit reversed. Confederated Tribes of Chehalis Reservation v. Mnuchin, 976 F.3d 15 (2020). In its view, the recognized-as-eligible clause is a term of art requiring any Indian tribe to be a federally recognized tribe. Because no ANC is federally recognized, the court reasoned, no ANC qualifies for funding under Title V of the CARES Act. In so holding, the D. C. Circuit split with the Ninth Circuit, which had held decades prior in Cook Inlet Native Assn. v. Bowen, 810 F.2d 1471 (1987), that ANCs are Indian tribes for ISDA purposes, regardless of whether they have been federally recognized. Id., at 1474.

We granted certiorari, 592 U.S. ––––, 141 S.Ct. 976, 208 L.Ed.2d 510 (2021), to resolve the Circuit split and determine whether ANCs are eligible for the CARES Act funding set aside by the Treasury Department.

II

All but one of the respondent Tribes agree that ANCs are eligible to receive the CARES Act funds in question if they are Indian tribes for purposes of ISDA.[4] The primary question for the Court, then, is whether ANCs satisfy ISDA’s definition of “Indian tribe.” The ANCs ask the Court to answer that question by looking to the definition’s plain meaning. Respondents ask the Court to adopt a term-of-art construction that equates being “recognized as eligible for the special programs and services provided by the United States to Indians” with being a “federally recognized tribe,” i.e., a tribe recognized by the United States in a sovereign political sense.

A

Starting with the plain meaning, an “Indian tribe” under ISDA is a “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 [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 definition’s first two clauses are straightforward enough. The first lists entities that might count as Indian tribes under the Act (e.g., tribes, bands, nations). The second, “the Alaska clause,” makes clear that Alaska Native villages and ANCs are “includ[ed].” The third, “the recognized-as-eligible clause,” requires more analysis. According to that clause, the listed entities must be “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”

ANCs, of course, are “established pursuant to” ANCSA within the meaning of the Alaska clause. They are thereby “recognized as eligible” for ANCSA’s benefits. The trickier question is whether eligibility for the benefits of ANCSA counts as eligibility for “the special programs and services provided by the United States to Indians because of their status as Indians.”

It does. Contrary to the dissent’s view, post, at 2457 – 2458 (opinion of GORSUCH, J.), ANCSA is readily described as a special program provided by the United States to “Indians” (in this case, Alaska Natives). See 43 U.S.C. § 1626 (describing ANCSA’s relationship to “other programs”). The scope of that program is substantial: ANCSA made ANCs eligible to select tens of millions of acres of land and receive hundreds of millions of tax-exempt dollars. §§ 1605, 1610, 1611. Not just a one-time payment, ANCSA provides for revenue sharing among the regional ANCs to ensure Alaska Natives across the State benefit from an ongoing equitable distribution of ANC profits. § 1606(i). ANCSA further entrusts ANCs to “hold, invest, manage and/or distribute lands, property, funds, and other rights and assets for and on behalf ” of Alaska Natives, who are the ANCs’ shareholders, as well as to distribute dividends to them. See §§ 1602(j), 1606(j). Moreover, ANCs and their shareholders are “eligible for the benefits of ” ANCSA, § 1606(d), precisely because of their status as Indians. See § 1626(e)(1) (“For all purposes of Federal law, a Native Corporation shall be considered to be a corporation owned and controlled by Natives”); note following § 1601, p. 1136 (ANCSA is “ ‘Indian legislation enacted by Congress pursuant to its plenary authority under the Constitution of the United States to regulate Indian affairs’ ”).

Respondents do not deny that the benefits of ANCSA are “a” special program or service provided by the United States to Indians. According to respondents, however, such benefits are not “the” special programs and services provided to Indians (e.g., healthcare, education, and other social services provided by federal agencies like the Bureau of Indian Affairs and the Indian Health Service). “The” special programs and services, respondents assert, are available only to federally recognized tribes (or, more precisely, to members of such tribes). In respondents’ view, ANCs are thus “includ[ed]” in the “Indian tribe” definition’s Alaska clause only to be excluded en masse from that definition by the recognized-as-eligible clause.

That would certainly be an odd result. Fortunately, the text does not produce it. ISDA’s “Indian tribe” definition does not specify the particular programs and services an entity must be eligible for to satisfy the recognized-as-eligible clause. Given that ANCSA is the only statute the “Indian tribe” definition mentions by name, the best reading of the definition is that being eligible for ANCSA’s benefits by itself satisfies the recognized-as-eligible clause.

Consider a similarly worded example. A doctor recommends getting a blood test every six months to “any child, adult, or senior, including anyone over the age of 75 whose blood-sugar levels have tested in the prediabetic range within the last five years, who exhibits the warning signs of Type 2 diabetes.” Without further context, it is unclear exactly which warning signs the doctor is referring to, or how many of those signs a child, adult, or senior must exhibit before warranting biannual testing. But it is fair to say that individuals over 75 with prediabetic blood-sugar levels within the last five years should get tested biannually, even if they exhibit no other warning signs. By expressly “including” individuals with that one warning sign, the doctor’s recommendation makes clear that particular sign, by itself, is warning enough.

Just so here: Congress’ express inclusion of ANCs “established pursuant to [ANCSA]” confirms that eligibility for ANCSA’s benefits alone is eligibility enough to be an Indian tribe. ANCs thus satisfy ISDA’s Indian tribe definition, regardless of whether they and their shareholders are eligible for federal Indian programs and services other than those provided in ANCSA. At any rate, the one-to-one relationship respondents posit between membership in a federally recognized tribe and eligibility for federal Indian benefits more broadly does not hold in the unique circumstances of Alaska. See Letter from E. Prelogar, Acting Solicitor General, to S. Harris, Clerk of Court (Apr. 22, 2021) (“[T]he federal government has historically provided benefits and services to Alaska Natives who are not enrolled members of a federally recognized Indian tribe”); D. Case & D. Voluck, Alaska Natives and Americans Laws 30 (3d ed. 2012) (“[T]he federal government has, at least since the end of the nineteenth century, provided a wide variety of programs and services to Alaska Natives solely because of their status as Natives”). So ANCSA is not, in fact, the only federal Indian program or service for which ANCs and their shareholders are eligible.

It should come as no surprise that Congress made ANCs eligible to contract under ISDA. After all, Congress itself created ANCs just four years earlier to receive the benefits of the Alaska land settlement on behalf of all Alaska Natives. Allowing ANCs to distribute federal Indian benefits more broadly is entirely consistent with the approach Congress charted in ANCSA. Accord, 1 American Indian Policy Review Comm’n, Final Report, 95th Cong., 1st Sess., 495 (Comm. Print 1977) (ANCs “might well be the form or organization best suited to sponsor certain kinds of federally funded programs” in Alaska); 43 U.S.C. § 1606(r) (“The authority of a Native Corporation to provide benefits … to promote the health, education, or welfare of … shareholders or family members is expressly authorized and confirmed”).

Under the plain meaning of ISDA, ANCs are Indian tribes, regardless of whether they are also federally recognized tribes. In so holding, the Court does not open the door to other Indian groups that have not been federally recognized becoming Indian tribes under ISDA. Even if such groups qualify for certain federal benefits, that does not make them similarly situated to ANCs. ANCs are sui generis entities created by federal statute and granted an enormous amount of special federal benefits as part of a legislative experiment tailored to the unique circumstances of Alaska and recreated nowhere else. Moreover, with the exception of Alaska Native villages (which are now federally recognized), no entities other than ANCs are expressly “includ[ed]” by name in ISDA’s “Indian tribe” definition. Cf. Sturgeon, 577 U.S. at 440, 136 S.Ct. 1061 (“All those Alaska-specific provisions reflect the simple truth that Alaska is often the exception, not the rule”).

B

Respondents urge this Court to discard the plain meaning of the “Indian tribe” definition in favor of a term-of-art construction. In respondents’ view, the 69 words of the “Indian tribe” definition are a long way of saying just 8: An “Indian tribe” means a “federally recognized tribe.” If that is right, respondents are correct that ANCs are not Indian tribes, because everyone agrees they are not federally recognized tribes. To prevail on this argument, however, respondents must demonstrate that the statutory context supports reading ISDA’s “Indian tribe” definition as a term of art rather than according to its plain meaning. See Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Their efforts are not persuasive.

In arguing for a term-of-art construction, respondents first rely on a series of Acts that terminated various tribes starting in the late 1950s. Those Acts closed tribal membership rolls, specified the division of tribal assets, and revoked tribal constitutions. See, e.g., Act of Sept. 21, 1959, Pub. L. No. 86–322, 73 Stat. 592. Following termination, the tribe and its members were no longer “entitled to any of the special services performed by the United States for Indians because of their status as Indians.” § 5, id., at 593. As respondents note, this language resembles (although does not mirror precisely) the final words of ISDA’s recognized-as-eligible clause. If being terminated means no longer being “entitled to any of the special services performed by the United States for Indians because of their status as Indians,” the argument goes, then being “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians” means being a federally recognized tribe.

Respondents misjudge the relevance of these termination statutes. Those statutes do not contain the words “recognized as eligible”; they do not even contain the word “recognized.” Furthermore, the termination statutes use their ISDA-reminiscent phrasing not as a synonym for termination but to describe just one, among other, consequences of a tribe’s constitution being revoked. See, e.g., ibid. (“The constitution of the tribe … shall be revoked by the Secretary. Thereafter, the tribe and its members shall not be entitled to any of the special services performed by the United States for Indians because of their status as Indians, all statutes of the United States that affect Indians because of their status as Indians shall be inapplicable to them, and the laws of the several States shall apply to them in the same manner they apply to other persons or citizens within their jurisdiction”).

Some linguistic similarity between ISDA and the termination statutes does not suggest that the language of the recognized-as-eligible clause was an accepted way of saying “a federally recognized tribe” in 1975. It instead supports a much more limited proposition: A federally recognized tribe that has not been terminated is “entitled” to “special services performed by the United States for Indians,” and thereby satisfies ISDA’s similarly worded recognized-as-eligible clause. But of course, no one disputes that being a federally recognized tribe is one way to qualify as an Indian tribe under ISDA; it is just not the only way.

Nor is the mere inclusion of the word “recognized” enough to give the recognized-as-eligible clause a term-of-art meaning. True, the word “recognized” often refers to a tribe with which the United States has a government-to-government relationship (particularly when it is sandwiched between the words “federally” and “tribe”). That does not mean, however, that the word “recognized” always connotes political recognition.[5]

“Recognized” is too common and context dependent a word to bear so loaded a meaning wherever it appears, even in laws concerning Native Americans and Alaska Natives. Cf. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 235, 131 S.Ct. 1068, 179 L.Ed.2d 1 (2011) (declining to read “unavoidable” as a term of art in part because “ ‘[u]navoidable’ is hardly a rarely used word”). Certainly, “recognized” can signify political recognition; it can also refer to something far more pedestrian. See, e.g., Black’s Law Dictionary 1436 (rev. 4th ed. 1968) (defining “recognition” as “[r]atification; confirmation; an acknowledgment that something done by another person in one’s name had one’s authority”). The type of recognition required is a question best answered in context. See, e.g., 25 U.S.C. § 3002(a)(2)(C)(1) (providing for control over certain cultural items “in the Indian tribe that is recognized as aboriginally occupying the area in which the objects were discovered”); § 4352(3) (defining a “Native Hawaiian organization” as a nonprofit that, among other things, “is recognized for having expertise in Native Hawaiian culture and heritage, including tourism”). In ISDA, the required recognition is of an entity’s eligibility for federal Indian programs and services, not a government-to-government relationship with the United States.[6]

Respondents next rely on sources that postdate ISDA. Ordinarily, however, this Court reads statutory language as a term of art only when the language was used in that way at the time of the statute’s adoption. See Food Marketing Institute v.Argus Leader Media, 588 U.S. ––––, ––––, 139 S.Ct. 2356, 2365, 204 L.Ed.2d 742 (2019) (rejecting a term-of-art reading where the parties “mustered no evidence that the terms of ” the statute carried a “specialized common law meaning … at the time of their adoption”). In relying on sources postdating ISDA, respondents must show not only that the language of the recognized-as-eligible clause later became a term of art, but also that this term-of-art understanding should be backdated to ISDA’s passage in 1975. They cannot make that showing.

Respondents lean most heavily on the Federally Recognized Indian Tribe List Act of 1994 (List Act), enacted almost 20 years after ISDA. See 25 U.S.C. §§ 5130, 5131. The List Act requires the Secretary of the Interior to publish an annual list of “all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” § 5131(a). According to respondents, ANCs’ absence from the Secretary’s list confirms that they are not “eligible for the special programs and services provided by the United States to Indians because of their status as Indians,” § 5304(e), and thus fail ISDA’s recognized-as-eligible clause.

Respondents’ cross-referencing argument, however, requires the Court to ignore the reason why ANCs are not on the list. True to its full name, the Federally Recognized Indian Tribe List Act tasks the Secretary with maintaining a “ ‘list of federally recognized tribes’ ” only. Note following § 5130, p. 678. The List Act, moreover, lacks language like that in ISDA expressly “including” ANCs “established pursuant to” ANCSA. § 5304(e). The obvious inference, then, is that ANCs are not on the Secretary’s list simply because they are not federally recognized.

History confirms as much. In 1979, 15 years before the List Act was passed, the Secretary began publishing a list of Indian tribes “that have a government-to-government relationship with the United States.” 44 Fed. Reg. 7235. In 1988, ANCs were added to the Secretary’s list, which had been retitled “Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs,” because ANCs are “specifically eligible for the funding and services of the [Bureau of Indian Affairs] by statute” and “should not have to undertake to obtain Federal Acknowledgement” (i.e., federal recognition). 53 Fed. Reg. 52829, 52832. In 1993, the Secretary dropped ANCs from the list, concluding that “the inclusion of ANC[s], which lack tribal status in a political sense, called into question the status” of the other entities on the list. 58 Fed. Reg. 54365. In so doing, the Secretary reaffirmed that ANCs “are not governments, but they have been designated as ‘tribes’ for the purposes of some Federal laws,” including ISDA. Id., at 54364. The List Act, passed the following year, “confirmed the Secretary’s authority and responsibility” to maintain a list of federally recognized tribes. 60 Fed. Reg. 9251. Hence, ANCs remained off the list.

To accept respondents’ argument, then, the Court would need to cross-reference ISDA’s definition of an “Indian tribe” with the Secretary’s list, but ignore why ANCs were excluded from that list in the first place. The Court declines to take that doubtful step.

Despite asking the Court to consider post-ISDA statutes to determine whether ANCs are “Indian tribes” under ISDA, moreover, respondents largely fail to address post-ISDA congressional actions that contradict their position. First, consider Congress’ treatment of the Cook Inlet Region, Inc. (CIRI), the regional ANC for the ANCSA region covering more than half the Alaskan population. See The Twelve Regions, ANCSA Regional Association (June 1, 2021), https://ancsaregional.com/the-twelve-regions. In 1994, CIRI contracted under ISDA through its designated healthcare provider to offer healthcare benefits to Alaska Natives and American Indians in Anchorage and the Matanuska-Susitna Valley. See Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986, 988 (CA9 1999). A group of Alaska Native villages sued, arguing that the Federal Government should have first obtained their approval. Ibid.; see 25 U.S.C. § 5304(l) (“[I]n any case where [an ISDA contract] benefit[s] more than one Indian tribe, the approval of each such Indian tribe” is required). Congress mooted the dispute by passing a bill that waived ISDA’s normal tribal approval requirement for CIRI’s healthcare contracts. Department of the Interior and Related Agencies Appropriations Act, 1998, § 325(a), 111 Stat. 1597–1598. In so doing, Congress not only assumed CIRI was eligible to enter into ISDA contracts (notwithstanding its lack of federal recognition), but actively cleared the way for it to do so.

Next, consider the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA), 25 U.S.C. § 4101 et seq., which incorporates ISDA’s “Indian tribe” definition, see § 4103(13)(B). NAHASDA creates a housing block grant program for Indian tribes. § 4111. The regional ANCs (acting through their designated housing authorities) are among the largest recipients of these grants in Alaska, receiving tens of millions of dollars each year. See Dept. of Housing and Urban Development, FY 2020 Final [Indian Housing Block Grant] Funding by [Tribally Designated Housing Entities] & Regions. For years, Congress has passed appropriations riders requiring that the existing recipients of NAHASDA’s housing block grants in Alaska (including ANCs) continue to receive those grants. See, e.g., Further Consolidated Appropriations Act, 2020, Pub. L. 116–94, Div. H, Tit. II, § 211, 133 Stat. 3003. Following the D. C. Circuit’s decision in this case, Congress awarded additional grants under NAHASDA and emphasized that, “[f]or the avoidance of doubt,” the “Indian tribe[s]” eligible for those grants “shall include Alaska native corporations established pursuant to” ANCSA. Consolidated Appropriations Act, 2021, Pub. L. 116–260, Div. N, Tit. V, Subtit. A, § 501(k)(2)(C), 134 Stat. 2077.

Thus, post-ISDA sources prove no more fruitful to respondents than pre-ISDA ones. Even assuming the Court should look to events after 1975, respondents cannot cherry-pick statutes like the List Act without explaining postenactment developments that undermine their interpretation. In the end, the various statutes cited do not support respondents’ efforts to exclude ANCs from ISDA by use of a term-of-art construction.[7]

C

Even if ANCs did not satisfy the recognized-as-eligible clause, however, they would still satisfy ISDA’s definition of an “Indian tribe.” If respondents were correct that only a federally recognized tribe can satisfy that clause, then the best way to read the “Indian tribe” definition as a whole would be for the recognized-as-eligible clause not to apply to the entities in the Alaska clause at all (i.e., to “any Alaska Native village or regional or village corporation,” 25 U.S.C. § 5304(e)). On this reading, the way to tell whether a tribe, band, nation, or other organized group or community is an “Indian tribe” is to ask whether it is federally recognized, but the way to tell whether an Alaska Native village or corporation is an “Indian tribe” is to ask whether it is “defined in or established pursuant to” ANCSA. Ibid. Otherwise, despite being prominently “includ[ed]” in the “Indian tribe” definition, ibid., all ANCs would be excluded by a federal-recognition requirement there is no reasonable prospect they could ever satisfy.

Respondents object (and the dissent agrees) that this construction “produces grammatical incoherence.” Brief for Respondents Confederated Tribes of Chehalis Reservation et al. 16; post, at 2454 – 2455. They point out that a modifying clause at the end of a list (like the recognized-as-eligible clause) often applies to every item in the list. See, e.g., Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 344, n. 4, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005). The so-called series-qualifier canon can be a helpful interpretive tool, and it supports the idea that the recognized-as-eligible clause applies to every type of entity listed in the “Indian tribe” definition, including ANCs. Given that the entities in the Alaska clause are the closest in proximity to the recognized-as-eligible clause, that canon arguably applies with particular force here.

As the Court reiterated earlier this Term, however, the series-qualifier canon gives way when it would yield a “contextually implausible outcome.” Facebook, Inc. v. Duguid, 592 U.S. ––––, ––––, 141 S.Ct. 1163, 1171, 209 L.Ed.2d 272 (2021); see also id., at ––––, 141 S.Ct. at 1173 (ALITO, J., concurring in judgment) (noting that “[c]anons are useful tools, but it is important to keep their limitations in mind. This may be especially true with respect to … the ‘series-qualifier’ canon”). The most grammatical reading of a sentence in a vacuum does not always produce the best reading in context. See, e.g., Sturgeon, 577 U.S. at 438, 136 S.Ct. 1061 (“Statutory language ‘cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme’ ”); cf. B. Garner, Modern English Usage 784 (4th ed. 2016) (noting the “increasingly common” “ ‘remote relative,’ ” i.e., the practice of separating “the relative pronoun (that, which, who) from its antecedent”).

Consider an example with the same syntax as the “Indian tribe” definition. A restaurant advertises “50% off any meat, vegetable, or seafood dish, including ceviche, which is cooked.” Say a customer orders ceviche, a Peruvian specialty of raw fish marinated in citrus juice. Would she expect it to be cooked? No. Would she expect to pay full price for it? Again, no. Under the reading recommended by the series-qualifier canon, however, the ceviche was a red herring. Even though the 50%-off sale specifically named ceviche (and no other dish), it costs full price because it is not cooked. That conclusion would make no sense to a reasonable customer.

Like applying a “cooked” requirement to ceviche, applying a “federally recognized” requirement to ANCs is implausible in context. When Congress enacted ISDA in 1975, not a single Alaska Native village or ANC had been recognized for a government-to-government relationship with the United States. On respondents’ reading, then, the entire Alaska clause originally had no effect. None of its entities qualified as Indian tribes for purposes of ISDA, even though the only entities expressly included in ISDA’s definition of an “Indian tribe” are those in the Alaska clause.

The only explanation respondents offer for this highly counterintuitive result is that Congress included Alaska Native villages and corporations in the “Indian tribe” definition on the possibility they might one day become federally recognized. That is highly unlikely. First, the Alaska clause would be redundant on that account. See Brief for Respondents Confederated Tribes of Chehalis Reservation et al. 31 (“[T]he Alaska [clause] is … best read as redundant”). A federally recognized Alaska Native village or ANC would presumably already fit into one of the pre-existing ISDA categories of “tribe[s], band[s], nation[s], or other organized group[s] or communit[ies].” 25 U.S.C. § 5304(e).

Second, it is quite doubtful that anyone in 1975 thought the United States was going to recognize ANCs as sovereign political entities. ANCs are for-profit companies incorporated under state law that Congress itself created just four years prior to ISDA. They are not at all the type of entities normally considered for a government-to-government relationship with the United States. Accord, 25 CFR § 83.4 (1994) (“The Department will not acknowledge,” i.e., federally recognize, “[a]n association, organization, corporation, or entity of any character formed in recent times unless the entity has only changed form by recently incorporating or otherwise formalizing its existing politically autonomous community”). Indeed, at the time ISDA was enacted, some doubted whether even Alaska Native villages could be federally recognized.[8]

Respondents counter by pointing to certain organizations created in Alaska in the 1930s that later became federally recognized tribes. One such organization, the Hydaburg Cooperative Association (HCA), was formed under the 1936 Amendment to the Indian Reorganization Act, which authorized Alaska Natives groups “not heretofore recognized as bands or tribes” to organize based on “a common bond of occupation, or association, or residence.” Ch. 254, 49 Stat. 1250 (codified at 25 U.S.C. § 5119). The HCA organized around “a common bond of occupation in the fish industry.” Constitution and By-Laws of the Hydaburg Cooperative Association, Alaska Preamble (1938). Decades later, the Interior Department acknowledged the HCA as a federally recognized tribe, even though it is of fairly recent vintage and organized around a bond of occupation rather than solely around an ancestral tribal heritage. See 58 Fed. Reg. 54369. If the HCA could be federally recognized, respondents say, some might have thought ANCs could too.

Respondents make too much of the HCA and the small handful of entities like it, which are not comparable to ANCs. Unlike ANCs, the former entities were organized under federally approved constitutions as part of a short-lived attempt to recreate in Alaska a tribal reservation system like that in the lower 48 States. ANCs, by contrast, were incorporated under state law pursuant to legislation that embodied the formal repudiation of that approach. That the Interior Department deemed the HCA and a handful of other entities like it federally recognized tribes decades after ISDA’s passage does not mean it was plausible in 1975 to think ANCs would one day become federally recognized tribes, as well.[9]

Ultimately, respondents resort to the argument that, although the idea of ANCs becoming federally recognized tribes might be farfetched, it is not technically impossible. That is, Congress’ plenary power over Indian affairs could conceivably permit it to recognize a government-to-government relationship between an ANC and the United States. Perhaps, but possibility is not the same as plausibility, and both are proper concerns of statutory interpretation. Consider again the example of a restaurant advertising “50% off any meat, vegetable, or seafood dish, including ceviche, which is cooked.” On respondents’ logic, because the restaurant technically could cook its ceviche, the only way to read the advertisement is that ceviche is full price unless the restaurant takes an unexpected culinary step.

That is wrong. The best reading of the advertisement is that ceviche is 50% off even if it is not cooked, just as the best reading of ISDA is that ANCs are Indian tribes even if they are not federally recognized. Any grammatical awkwardness involved in the recognized-as-eligible clause skipping over the Alaska clause pales in comparison to the incongruity of forever excluding all ANCs from an “Indian tribe” definition whose most prominent feature is that it specifically includes them.

D

Respondents make a few final arguments to persuade the Court that ANCs are not Indian tribes under ISDA. None succeeds.

Respondents argue first that the ANCs misrepresent how meaningful a role they play under ISDA because the actual number of ISDA contracts held by ANCs is negligible. The Court does not have the record before it to determine the exact number and nature of ISDA contracts held by ANCs or their designees, either historically or currently. The point is largely irrelevant, however. No one would argue that a federally recognized tribe was not an Indian tribe under ISDA just because it had never entered into an ISDA contract. The same is true for ANCs. To the extent respondents argue that ruling for them would be of little practical consequence given the small number of ISDA contracts held by ANCs, quantity is not the only issue. For example, CIRI contracts through a designee to provide healthcare to thousands of Alaska Natives in Anchorage and the Matanuska-Susitna Valley. Brief for CIRI as Amicus Curiae 9. The loss of CIRI’s ability alone to contract under ISDA would have significant effects on the many Alaska Natives it currently serves.[10]

Respondents further argue that treating ANCs as Indian tribes would complicate the administration of ISDA. If an ISDA contract will benefit multiple Indian tribes, each such tribe has to agree to the contract before it can go into effect. 25 U.S.C. § 5304(l). Because membership in ANCs and federally recognized tribes often overlap, respondents argue that ANCs will be able to veto any ISDA contract sought by a federally recognized tribe in Alaska.

Without discounting the possibility of administrative burdens, this concern is overstated. The Executive Branch has treated ANCs as Indian tribes for 45 years, yet respondents point to no evidence of such a problem ever having arisen. If such a problem does arise, moreover, the Interior Department may be able to craft an administrative solution. Cf. 46 Fed. Reg. 27178, 27179 (1981) (Indian Health Service regulations establishing an “order of precedence” among Alaskan entities “[f]or the purposes of contracting under” ISDA and requiring authorizing resolutions from “[v]illages, as the smallest tribal units under” ANCSA).

Respondents also warn that blessing ANCs’ status under ISDA will give them ammunition to press for participation in the many statutes besides the CARES Act that incorporate ISDA’s “Indian tribe” definition. See, e.g., Indian Health Care Improvement Act, § 4(d), 90 Stat. 1401; Native American Housing Assistance and Self-Determination Act of 1996, § 4(12)(B), 110 Stat. 4019–4020; Indian Tribal Energy Development and Self-Determination Act of 2005, [Title V of the Energy Policy Act of 2005], § 503(a), 119 Stat. 764–765.

As the Government notes, however, there may well be statutes that incorporate ISDA’s “Indian tribe” definition but exclude ANCs from participation in other ways. See Brief for Federal Petitioner 33–34 (citing, e.g., 7 U.S.C. §§ 1639o(2), 1639p(a)(1) (defining “Indian tribe” to incorporate the ISDA definition, but also requiring participants to exercise “ ‘regulatory authority over … territory of the Indian tribe’ ”)). Moreover, this concern cuts both ways. If respondents’ reading prevailed, ANCs would presumably be excluded from all other statutes incorporating ISDA’s definition, even those under which ANCs have long benefited. That includes the Indian Tribal Energy Development and Self-Determination Act of 2005, under which ANCs have received millions of dollars of energy assistance. See Brief for Federal Petitioner 33. That also includes NAHASDA, which, as discussed, creates a housing block grant program under which the regional ANCs are some of the biggest recipients in Alaska. See supra, at 2446 – 2447. Currently, over 10,000 Alaskans live in housing units built, improved, or managed by these regional authorities. See Brief for Association of Alaska Housing Authorities as Amicus Curiae 15.

All told, the Court’s decision today does not “vest ANCs with new and untold tribal powers,” as respondents fear. Brief for Respondents Confederated Tribes of Chehalis Reservation et al. 54. It merely confirms the powers Congress expressly afforded ANCs and that the Executive Branch has long understood ANCs to possess.

III

Almost everyone agrees that if ANCs are Indian tribes under ISDA, they are eligible for funding under Title V of the CARES Act. If Congress did not want to make ANCs eligible for CARES Act funding, its decision to incorporate ISDA’s “Indian tribe” definition into the CARES Act would be inexplicable. Had Congress wished to limit CARES Act funding to federally recognized tribes, it could simply have cross-referenced the List Act instead, as it had in numerous statutes before.[11] Instead, Congress invoked a definition that expressly includes ANCs (and has been understood for decades to include them). Today’s ruling merely gives effect to that decision.

Nevertheless, the Ute Indian Tribe of the Uintah and Ouray Reservation argues that the CARES Act excludes ANCs regardless of whether they are Indian tribes under ISDA. Recall that the CARES Act allocates money to “Tribal governments.” 42 U.S.C. § 801(a)(2)(B). A “Tribal government” is “the recognized governing body of an Indian tribe.” § 801(g)(5). According to the Utes, ANCs do not have a “recognized governing body” because that term applies to the governing body of a federally recognized tribe alone.

As the Utes implicitly acknowledge, however, federal recognition is usually discussed in relation to tribes, not their governing bodies. Brief for Respondent Ute Indian Tribe of the Uintah and Ouray Reservation 13 (“The recognized relationship is a political relationship between the United States and the tribe”); see also, e.g., note following 25 U.S.C. § 5130, p. 678 (“ ‘[T]he United States has a trust responsibility to recognized Indian tribes, maintains a government-to-government relationship with those tribes, and recognizes the sovereignty of those tribes’ ”). In addition, the CARES Act’s use of the term “recognized governing body” is borrowed from ISDA itself, which lists the “recognized governing body” of an Indian tribe as one type of “tribal organization” empowered to contract with the government on the tribe’s behalf. § 5304(l). In the ISDA context, this term has long been understood to apply to an ANC’s board of directors, the ANC’s governing body as a matter of corporate law. See, e.g., App. 45 (An ANC’s “board of directors … is its ‘governing body’ ”); see also Black’s Law Dictionary, at 219 (defining “Board of Directors” as “[t]he governing body of a private corporation”). Indeed, respondents do not dispute that the plain meaning of “recognized governing body” covers an ANC’s board of directors.[12]

Looking to the plain meaning of “recognized governing body” makes even more sense because nothing in either the CARES Act or ISDA suggests that the term “recognized governing body” places additional limits on the kinds of Indian tribes eligible to benefit under the statutes. In both laws, the term instead pinpoints the particular entity that will receive funding on behalf of an Indian tribe. See 42 U.S.C. § 801(g)(5); 25 U.S.C. § 5304(l). Because ANCs are Indian tribes within the meaning of the CARES Act, an ANC’s board of directors is a “recognized governing body” eligible to receive funding under Title V of the Act.

IV

The Court today affirms what the Federal Government has maintained for almost half a century: ANCs are Indian tribes under ISDA. For that reason, they are Indian tribes under the CARES Act and eligible for Title V funding. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.


Justice GORSUCH, with whom Justice THOMAS and Justice KAGAN join, dissenting:

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) directed trillions of dollars to various recipients across the Nation to help them address the COVID–19 pandemic. Our case focuses on $8 billion Congress set aside for “Tribal governments.” The question we must answer is whether Alaska’s for-profit Alaska Native Corporations (ANCs) qualify as “Tribal governments.” If they do, they may receive approximately $450 million of the earmarked funds; if not, the money will go to tribes across the country. The Court of Appeals for the District of Columbia Circuit wrote a thoughtful and unanimous opinion holding that ANCs are not “Tribal governments.” Today, the Court disagrees, providing two competing theories for its result. Respectfully, I find neither persuasive and would affirm.

I

The Alaska Native Claims Settlement Act of 1971 (ANCSA) sought to “settle all land claims by Alaska Natives” by “transfer[ring] $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations” in which Alaska Natives were given shares. Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 523–524, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998); 43 U.S.C. § 1601 et seq. In particular, ANCSA established over 200 “Village Corporations” and 12 “Regional Corporations.” §§ 1602, 1606.

The Village Corporations were created to hold and manage “lands, property, funds, and other rights and assets for and on behalf of a Native village.” § 1602(j). Meanwhile, shares in the Regional Corporations went to individuals across many different tribes and villages. §§ 1604, 1606(g)(1)(A). These corporations received most of the settlement funds and lands Congress provided, assets they use to “conduct business for profit.” §§ 1606(d), 16101613; see also Brief for Federal Petitioner 5. Today, ANCs are involved in oil and gas, mining, military contracting, real estate, construction, communications and media, engineering, plastics, timber, and aerospace manufacturing, among other things. GAO, Report to Congressional Requesters, Regional Alaska Native Corporations: Status 40 Years After Establishment, and Future Considerations (GAO–13–121, Dec. 2012). “In fiscal year 2017, ANCs had a combined net revenue of $9.1 billion.” Confederated Tribes of Chehalis Reservation v. Mnuchin, 456 F.Supp.3d 152, 157 (DDC 2020).

Everyone agrees that ANCs are entitled to some CARES Act relief. Already, they have received benefits Congress allocated to corporations, like the Paycheck Protection Program. See Brief for Respondent Ute Indian Tribe of Uintah and Ouray Reservation 1 (Brief for Respondent Ute Tribe). Congress also accounted for ANC shareholders, and all Alaskans, when it directed over $2 billion to the State. In fact, Alaska received more money per capita than all but two other States. Id., at 3; Congressional Research Service, General State and Local Fiscal Assistance and COVID–19: Background and Available Data (Feb. 8, 2021). The Alaska Native Villages received hundreds of millions of those dollars because everyone agrees they qualify as tribal governments for purposes of the CARES Act. See ibid. This suit concerns only the ANCs’ claim of entitlement to additional funds statutorily reserved for “Tribal governments.” 42 U.S.C. § 801(a)(2)(B). If that counterintuitive proposition holds true, ANCs will receive approximately $450 million that would otherwise find its way to recognized tribal governments across the country, including Alaska’s several hundred Native Villages. See Letter from E. Prelogar, Acting Solicitor General, to S. Harris, Clerk of Court (May 12, 2021).

In the CARES Act, Congress defined a “Tribal government” as the “recognized governing body of an Indian Tribe.” § 801(g)(5). In turn, Congress specified in § 801(g)(1) that the term “Indian Tribe” should carry here the same meaning that it bears in the Indian Self-Determination and Education Assistance Act of 1975 (ISDA). The relevant portion of that statute provides as follows:

“ ‘Indian tribe’ [or ‘Indian Tribe’] means 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.], 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 question before us thus becomes whether ANCs count as “Indian tribes” under the longstanding terms Congress adopted in ISDA almost 50 years ago. To resolve that dispositive question, we must answer two subsidiary ones: (1) Does the statute’s final clause (call it the recognition clause) apply to the ANCs listed earlier? (2) If so, are ANCs “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians”? In my view, the recognition clause does apply to ANCs along with the other listed entities. And ANCs are not “recognized” as tribes eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

II

A

Start with the question whether the recognition clause applies to the ANCs. As the nearest referent and part of an integrated list of other modified terms, ANCs must be subject to its terms. Unsurprisingly, the Court of Appeals reached this conclusion unanimously. Lawyers often debate whether a clause at the end of a series modifies the entire list or only the last antecedent. E.g.,Lockhart v. United States, 577 U.S. 347, 350–352, 136 S.Ct. 958, 194 L.Ed.2d 48 (2016); id., at 362–369, 136 S.Ct. 958 (KAGAN, J., dissenting); Facebook, Inc. v. Duguid, 592 U.S. ––––, –––– – ––––, 141 S.Ct. 1163, 1169–1170, 209 L.Ed.2d 272 (2021); id., at –––– – ––––, 141 S.Ct. at 1167–1169 (ALITO, J., concurring in judgment). In ISDA, for example, some might wonder whether the recognition clause applies only to ANCs or whether it also applies to the previously listed entities—“Indian tribe[s], band[s], nation[s],” etc. But it would be passing strange to suggest that the recognition clause applies to everything except the term immediately preceding it. A clause that leaps over its nearest referent to modify every other term would defy grammatical gravity and common sense alike. See, e.g.,Facebook, Inc., 592 U.S., at ––––, 141 S.Ct. at 1170; Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 344, n. 4, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005).

Exempting ANCs from the recognition clause would be curious for at least two further reasons. First, the reference to ANCs comes after the word “including.” No one disputes that the recognition clause modifies “any Indian tribe, band, nation, or other organized group or community.” So if the ANCs are included within these previously listed nouns—as the statute says they are—it’s hard to see how they might nonetheless evade the recognition clause. Second, in the proceedings below it was undisputed that the recognition clause modifies the term “Alaska Native village[s],” even as the ANCs argued that the clause does not modify the term “Alaska Native … regional or village corporation.” Confederated Tribes of Chehalis Reservation v. Mnuchin, 976 F.3d 15, 23 (CADC 2020); Brief for Federal Petitioner 46. But to believe that, one would have to suppose the recognition clause skips over only half its nearest antecedent. How the clause might do that mystifies. See Facebook, 592 U.S., at ––––, 141 S.Ct. at 1169 (“It would be odd to apply the modifier … to only a portion of this cohesive preceding clause”).

At least initially, the Court accepts the obvious and concedes that the recognition clause modifies everything in the list that precedes it. Ante, at 2441 – 2442. But this leaves the Court in a bind. If the recognition clause applies to ANCs, then ANCs must be “recognized” in order to receive funds. And “recognition” is a formal concept in Indian law: “Federal acknowledgement or recognition of an Indian group’s legal status as a tribe is 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.” 1 F. Cohen, Handbook of Federal Indian Law § 3.02[3], pp. 133–134 (N. Newton ed. 2012); see also id., § 3.02[2], at 132–133. No one contends that ANCs are recognized by the federal government in this sense.

Admittedly, not every statutory use of the word “recognized” must carry the same meaning. See ante, at 2445. But not only does ISDA arise in the field of Indian law where the term “recognition” has long carried a particular meaning. The statute proceeds to refer to groups that are “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” This full phrase is a mouthful, but it was a familiar one to Congress by the time it passed ISDA in 1975. In preceding decades, Congress used similar language in statute after statute granting and terminating formal federal recognition of certain tribes.1 All of which strongly suggests that ISDA’s recognition clause likewise refers to the sort of formal government-to-government recognition that triggers eligibility for the full “panoply of benefits and services” the federal government provides to Indians.[1] Cohen, Handbook of Federal Indian Law § 3.02[3], at 134.

There is more evidence too. When Congress passed ISDA, it sought to provide Indians “meaningful leadership roles” that are “crucial to the realization of selfgovernment.” 25 U.S.C. § 5301. Accordingly, “tribes may enter into ‘self-determination contracts’ with federal agencies to take control of a variety of federally funded programs.” Menominee Tribe of Wis. v. United States, 577 U.S. 250, 252, 136 S.Ct. 750, 193 L.Ed.2d 652 (2016); see also § 5321. Handing over federal government programs to tribal governments in order to facilitate self-government is precisely the sort of government-to-government activity that aligns with formal recognition. See also §§ 5384, 5385 (reflecting later amendments to ISDA) (instructing the Secretary to enter compacts and funding agreements “with each Indian tribe participating in self-governance in a manner consistent with the Federal Government’s trust responsibility, treaty obligations, and the government-to-government relationship between Indian tribes and the United States”).

The CARES Act itself offers still further clues. In the provision at issue before us, Congress appropriated money “for making payments to States, Tribal governments, and units of local government.”42 U.S.C. § 801(a)(1). Including tribal governments side-by-side with States and local governments reinforces the conclusion that Congress was speaking of government entities capable of having a government-to-government relationship with the United States. Recall, as well, that the CARES Act defines tribal governments as the “recognized governing body of an Indian Tribe.” § 801(g)(5). ANCs, like most corporations, have a board of directors, 43 U.S.C. § 1606(f), and a corporate board may well be the governing body of an enterprise. But they do not govern any people or direct any government.

B

While initially acknowledging that the recognition clause applies to ANCs, the Court interprets its terms differently. Rather than understanding it as denoting a government-to-government relationship, the Court says, we should look to its “plain meaning.” Ante, at 2441. But even if we could somehow set aside everything we know about how the term is used in Indian law and the CARES Act itself, it’s far from clear what “plain meaning” the Court alludes to or how ANCs might fall within it.

First, consider the Federally Recognized Indian Tribe List Act of 1994 (List Act). The List Act instructs the Secretary of the Interior to keep a list of all federally recognized Indian tribes. It does so using language materially identical to that found in ISDA’s recognition clause: “The Secretary shall publish in the Federal Register a list of all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 25 U.S.C. § 5131(a). No one before us thinks the Secretary of the Interior should list the ANCs as federally recognized tribes. And given that, it is unclear how ANCs might count as federally recognized tribes under ISDA. To be sure, the List Act came after ISDA. But the Court never attempts to explain how the plain meaning of nearly identical language in remarkably similar legal contexts might nevertheless differ.

Second, on any account, ISDA requires an Indian tribe or group to be “recognized.” But what work does this term do on the Court’s interpretation? Without explanation, the Court asserts that ANCs are “ ‘recognized as eligible’ for ANCSA’s benefits” because they are “ ‘established pursuant to’ ANCSA.” Ante, at 2441 – 2442. But on this understanding, any group eligible for benefits would seem, on that basis alone, to be “recognized” as eligible for those benefits. The Court’s reading comes perilously close to rendering the term “recognized” surplusage: If ISDA really does capture any group merely “eligible” for federal benefits, why not just say that and avoid introducing a term with a particular and well-established meaning in federal Indian law?

Third, even putting aside the recognition requirement, ISDA says tribes must receive services from the United States “because of their status as Indians.” § 5304(e). The Court says that ANSCA made ANCs eligible for settlement funds and lands because its shareholders are Alaska Natives. Ante, at 2441 – 2442. But is compensation provided to profit-maximizing corporations whose shareholders happen to be Alaska Natives (at least initially, see 43 U.S.C. §§ 1606(h)(1), 1629c) a benefit provided to Indians? And were ANSCA settlement funds provided to ANCs and their shareholders because of their Indian status or simply because Congress wanted to resolve a land dispute regardless of the claimants’ status? See § 1601(b) (“[T]he settlement should be accomplished … without establishing any permanent racially defined institutions, rights, privileges, or obligations … ”); but see § 1626(e)(1) (“For all purposes of Federal law, a Native Corporation shall be considered to be a corporation owned and controlled by Natives … ”). Again, the answers remain unclear. Ante, at 2442.

Finally, ISDA provides that tribes must be recognized as eligible for “the special programs and services provided by the United States.” 25 U.S.C. § 5304(e) (emphasis added). It is a small word to be sure, but “the” suggests the statute refers to a particular slate of programs and services—here the full panoply of federal Indian benefits—not just any special programs and services the government might supply. See Nielsen v. Preap, 586 U.S. ––––, ––––, 139 S.Ct. 954, 965, 203 L.Ed.2d 333 (2019) (“[G]rammar and usage establish that ‘the’ is ‘a function word … indicat[ing] that a following noun or noun equivalent is definite or has been previously specified by context’ ” (quoting Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005))). It’s undisputed too that, while ANSCA provided certain compensation to ANCs, Congress has never made those entities “eligible for the full range of federal services and benefits available to [recognized] Indian tribes.” Brief for Federal Petitioner 48.

Rather than confront this last problem, the Court elides it. In its opinion “the special programs and services” becomes “federal Indian programs and services,” ante, at 2442, 2445. Nor, even if one were to (re)interpret “the special programs” as “some special programs,” is it clear whether ANCSA qualifies. See ante, at 2442. On what account is settling a dispute over land title a “program” or “service”? See 43 U.S.C. § 1626(a) (“The payments and grants authorized under this chapter constitute compensation for the extinguishment of claims to land, and shall not be deemed to substitute for any governmental programs otherwise available to the Native people of Alaska”). Beyond even that, ANCSA extended specific compensation to ANCs—money and title—in exchange for settling land claims. ANCSA provided ANCs nothing in the way of health, education, economic, and social services of the sort that ISDA allows tribes to contract with the federal government to provide.

The Court’s reply creates another anomaly too. If receiving any federal money really is enough to satisfy the recognition clause, many other Indian groups might now suddenly qualify as tribes under the CARES Act, ISDA, and other federal statutes. A 2012 GAO study, for example, identified approximately 400 nonfederally recognized tribes in the lower 48 States, of which 26 had recently received direct funding from federal programs. GAO, Indian Issues: Federal Funding for Non-Federally Recognized Tribes (GAO–12–348, Apr. 2012). This number does not include additional entities that may have received federal benefits in the form of loans, procurement contracts, tax expenditures, or amounts received by individual members. Id., at 35. And still other groups may have federal rights secured by treaty, which may exist even if the tribe is no longer recognized. Cf. Menominee Tribe v. United States, 391 U.S. 404, 412–413, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). How does the Court solve this problem? With an ipse dixit. See ante, at 2443 (“[T]he Court does not open the door to other Indian groups that have not been federally recognized becoming Indian tribes under ISDA”). The Court’s “plain meaning” argument thus becomes transparent for what it is—a bare assertion that the recognition clause carries a different meaning when applied to ANCs than when applied to anyone else.

III

With its first theory facing so many problems, the Court offers a backup. Now the Court suggests that ANCs qualify as tribes even if they fail to satisfy the recognition clause. Ante, at 2447. Because ISDA’s opening list of entities specifically includes ANCs, the Court reasons, the recognition clause must be read as inapplicable to them alone. Essentially, the Court quietly takes us full circle to the beginning of the case—endorsing an admittedly ungrammatical reading of the statute in order to avoid what it calls the “implausible” result that ANCs might be included in ISDA’s first clause only to be excluded by its second. Ante, at 2448.

But it is difficult to see anything “implausible” about that result. When Congress adopted ANSCA in 1971, it “created over 200 new legal entities that overlapped with existing tribes and tribal nonprofit service organizations.” Brief for Professors and Historians as Amici Curiae 27. At that time, there was no List Act or statutory criteria for formal recognition. Instead, as the Court of Appeals ably documented, confusion reigned about whether and which Alaskan entities ultimately might be recognized as tribes. 976 F.3d at 18; see also Brief for Professors and Historians as Amici Curiae 28; Cohen, Handbook of Federal Indian Law 270–271 (1941). When Congress adopted ISDA just four years later, it sought to account for this uncertainty. The statute listed three kinds of Alaskan entities: Alaska Native Villages, Village Corporations, and Regional Corporations. And the law did “meaningful work by extending ISDA’s definition of Indian tribes” to whichever among them “ultimately were recognized.” 976 F.3d at 26. It is perfectly plausible to think Congress chose to account for uncertainty in this way; Congress often adopts statutes whose application depends on future contingencies. E.g.,Gundy v.United States, 588 U.S. ––––, –––– – ––––, 139 S.Ct. 2116, 2126–2127, 204 L.Ed.2d 522 (2019) (GORSUCH, J., dissenting)(citing examples).

Further aspects of Alaskan history confirm this understanding. Over time, the vast majority of Alaska Native Villages went on to seek—and win—formal federal recognition as Indian tribes. See 86 Fed. Reg. 7557–7558 (2021); Brief for Respondent Confederated Tribes of Chehalis Reservation et al. 23. (It’s this recognition which makes them indisputably eligible for CARES Act relief. See supra, at 2453.) By the time it enacted ISDA, too, Congress had already authorized certain Alaska Native groups to organize based on “a common bond of occupation, or association, or residence.” 25 U.S.C. § 5119. This standard, which did not require previous recognition as “bands or tribes,” was unique to Alaska. See ibid. And at least one such entity—the Hydaburg Cooperative Association, organized around the fish industry—also went on to receive federal tribal recognition in the 1990s. 86 Fed. Reg. 7558; see also Brief for Respondent Confederated Tribes of Chehalis Reservation et al. 35–36. Though short lived and not a full government-to-government political recognition, the Secretary of the Interior at one point even listed ANCs as “ ‘Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs,’ ” before eventually removing them. Ante, at 2446. And in 1996, Congress considered a bill that would have “deemed” a particular ANC—the Cook Inlet Region, Inc.—“an Indian tribal entity for the purpose of federal programs for which Indians are eligible because of their status as Indians” and required that it be included on “any list that designates federally recognized Indian tribes.” H.R. 3662, 104th Cong., 2d Sess., § 121. Of course, the ANCs before us currently are not recognized as tribes. But all this history illustrates why it is hardly implausible to suppose that a rational Congress in 1975 might have wished to account for the possibility that some of the Alaskan entities listed in ISDA might go on to win recognition.

The particular statutory structure Congress employed in ISDA was perfectly ordinary too. Often Congress begins by listing a broad universe of potentially affected parties followed by limiting principles. Take this example from the CARES Act. Congress afforded benefits to certain “ ‘unit[s] of local government,’ ” and defined that term to mean “a county, municipality, town, township, village, parish, borough, or other unit of general government below the State level with a population that exceeds 500,000.” 42 U.S.C. § 801(g)(2). The litigants tell us no parish in the country today has a population exceeding half a million. See Brief for Respondent Ute Tribe 31. Suppose they’re right. Is that any basis for throwing out the population limitation and suddenly including all parishes? Of course not. Once more, an opening list provides the full field of entities that may be eligible for relief and the concluding clause does the more precise work of winnowing it down. The clauses work in harmony, not at cross-purposes.[2]

In defense of its implausibility argument, the Court submits any other reading would yield a redundancy. Unless ANCs are exempt from the recognition clause, the Court suggests, Congress had no reason to mention them in the statute’s opening clause because they already “fit into one of the pre-existing ISDA categories,” like “ ‘tribe[s], band[s], nation[s], or other organized group[s] or communit[ies],’ ” ante, at 2448 – 2449 (quoting 25 U.S. C § 5304(e)).

But this much is hard to see too. Admittedly, illustrative examples of more general terms are in some sense always redundant. See Chickasaw Nation v. United States, 534 U.S. 84, 89, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001) (“[That] is meant simply to be illustrative, hence redundant”). But Congress often uses illustrative examples in its statutory work, and the practice is not entirely pointless. As this Court has explained, illustrative examples can help orient affected parties and courts to Congress’s thinking, and often they serve to “remove any doubt” about whether a particular listed entity is captured within broader definitional terms. Ali v. Federal Bureau of Prisons, 552 U.S. 214, 226, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008); see also Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 99–100, 62 S.Ct. 1, 86 L.Ed. 65 (1941); A. Scalia & B. Garner, Reading Law 176–177 (2012). That much is certainly true here. If Congress had failed to list ANCs in ISDA’s first clause, a dispute could have arisen over whether these corporate entities even qualify as “Indian … organized group[s] or communit[ies].” See Brief for Petitioners in No. 20544, p. 5; supra, at 2457 (citing 43 U.S.C. § 1601(b)).

Having said all this, my disagreement with the Court’s “implausibility” argument is a relatively modest one. We agree that linguistic and historical context may provide useful interpretive guidance, and no one today seeks to suggest that judges may sanitize statutes in service of their own sensibilities about the rational and harmonious.[3] Instead, our disagreement is simply about applying the plain meaning, grammar, context, and canons of construction to the particular statutory terms before us. As I see it, an ordinary reader would understand that the recognition clause applies the same way to all Indian groups. And if that’s true, there’s just no way to read the text to include ANCs as “Tribal governments” for purposes of the CARES Act.

*

In my view, neither of the Court’s alternative theories for reversal can do the work required of it. The recognition clause denotes the formal recognition between the federal government and a tribal government that triggers eligibility for the full panoply of special benefits given to Indian tribes. Meanwhile, a fair reading of that clause indicates that it applies to ANCs. Accordingly, with respect, I would affirm.

141 S.Ct. 2434, 210 L.Ed.2d 517, 21 Cal. Daily Op. Serv. 6218, 2021 Daily Journal D.A.R. 6398, 28 Fla. L. Weekly Fed. S 994

[]

Jimerson vs. Tetlin Native Corporation

I. INTRODUCTION

Plaintiffs seek to enforce a settlement agreement. The superior court determined that the agreement is unenforceable because the agreement’s stock repurchase provision violates the Alaska Native Claims Settlement Act’s (ANCSA) prohibition on the alienation of shares. Because we conclude that transfer of ANCSA stock back to a Native corporation in exchange for stock in a newly created corporation violates ANCSA, we affirm.

II. FACTS AND PROCEEDINGS

The Tetlin Native Corporation (TNC) is a village corporation formed pursuant to ANCSA and organized as an Alaska business corporation. On July 17, 1996, TNC transferred approximately 643,174 acres of its land to the Tetlin Tribal Council.[1] This left TNC with 100,000 acres of land.

Subsequently, the appellants, Shirley Jimerson and Ramona David, conducted a campaign to recall TNC’s board of directors. The campaign was successful, and on January 12, 1999, Jimerson and David were elected to the board.

On March 15, 1999, TNC and Jimerson and David, as directors and individual shareholders (collectively Jimerson),[2] filed a complaint in Alaska Superior Court in Fairbanks against certain shareholders and directors of TNC. The complaint alleged breach of fiduciary duties and wrongful transfer of TNC land, and requested $257,200,000 in damages and declaratory and injunctive relief. On April 20, 1999, the case was removed to the United States District Court for the District of Alaska.

On August 6, 1999, the Jimerson board was recalled. The new board passed a resolution that TNC dismiss all law suits brought by the Jimerson board. On October 6, 1999, TNC moved to dismiss without prejudice all claims it had against the shareholders and former and current directors of TNC. The district court denied TNC’s motion to dismiss and urged the parties to reach a settlement.

The court’s advice bore fruit, and the parties reached a settlement agreement. In August 2001 the district court approved the agreement and entered judgment on it.[3] The settlement agreement acknowledged that TNC shareholders may not have been fully informed regarding dissenters’ rights in the 1996 land transfer and provided for

[a] transfer of a portion of Tetlin Native Corporation’s remaining lands . . . to a new corporation to be formed by dissenting shareholders . . . who elect to transfer their shares of Tetlin Native Corporation ANCSA stock back to the corporation in exchange for shares in the new corporation.

In May 2003 Jimerson filed a motion in district court to enforce the settlement agreement. TNC opposed the motion and moved for relief from the judgment, contending that the district court lacked subject-matter jurisdiction. The district court concluded that the case presented no substantial federal question and declared the judgment based on the settlement agreement void for lack of jurisdiction. The case was then remanded to the superior court.

On February 23, 2004, Jimerson filed a motion in the superior court to enforce the settlement agreement. TNC opposed the motion, arguing that the settlement agreement was unenforceable as against public policy for three reasons: (1) the agreement provided for an exchange of shares in violation of ANCSA ‘s prohibition on alienation, (2) the agreement violated the Alaska Corporations Code, and (3) the attorney for plaintiffs had a conflict of interest.

On June 18, 2004, the superior court denied Jimerson’s motion to enforce the settlement agreement on the grounds that the agreement was unenforceable because it violated ANCSA ‘s prohibition on alienation.[4]

Jimerson appeals this denial.

III. DISCUSSION

We have adopted the Restatement principle that “[a] promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable . . . .”[5] This court has “no power, either in law or in equity, to enforce an agreement which directly contravenes a legislative enactment.”[6]

The issue before this court is whether the transaction contemplated by the settlement agreement is prohibited by ANCSA . The settlement agreement transferred a portion of TNC’s remaining land to a new corporation and then allowed “dissenting shareholders” to “transfer their shares of Tetlin Native Corporation ANCSA stock back to the corporation in exchange for shares in the new corporation.”

Issues of statutory interpretation are questions of law which we review de novo.[7]

ANCSA section 7(h)(1)(B) prohibits ANCSA stock from being sold, pledged, assigned, or otherwise alienated, subject to exceptions set out in section 7(h)(1)(C).[8] ANCSA does not define the term “alienated,” and this court has not had occasion to interpret the term. “[U]nless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage.”[9] Black’s Law Dictionary defines “alienate”: “To transfer or convey (property or a property right) to another.”[10] Webster’s defines “alienate”: “to convey or transfer (as property or a right) [usually] by a specific act rather than the due course of law.”[11] The settlement agreement contemplates that dissenting shareholders “transfer” their ANCSA shares to TNC. Dissenting shareholders do not retain any right or interest in their ANCSA shares. The language of the statute suggests that the term “alienate” includes transfer of ANCSA stock back to a village corporation in exchange for stock in a newly created corporation.

Jimerson argues that the specific prohibitions listed in subsection 7(h)(1)(B)(i)-(v) do not apply to organic changes such as the share exchange contemplated in the settlement agreement. Jimerson argues that under the principle of ejusdem generis the general term “otherwise alienate” refers only to the same kinds of transactions specifically listed in subsection 7(h)(1)(B)(i)-(v), and therefore does not refer to a share exchange made during an organic change.

We do not find Jimerson’s argument persuasive for two reasons. First, Jimerson points to no authority for the proposition that subsection 7(h)(1)(B)(i)-(v) does not apply to organic changes. As we discussed above, the language of the statute suggests that an individual shareholder alienates her stock by transferring it back to a village corporation in exchange for stock in another corporation.[12] We see no reason why the same principle would not apply to situations where many or all shareholders act at once. Whether shares are alienated by a single shareholder or by many shareholders pursuant to a formal plan for organic change, there is no indication that Congress intended to eliminate statutory protections by allowing ANCSA shareholders to exchange their shares for those of another corporation. Second, ANCSA provides specific exceptions to the section 7(h)(1)(B) restrictions. When Congress enumerates exceptions to a rule, we can infer that no other exceptions apply. Section 7(h)(1)(C) lists three exceptions that allow stock to be transferred to a Native or a descendent of a Native: (1) pursuant to a court decree of separation, divorce, or child support, (2) if the stock limits the holder’s ability to practice his or her profession, or (3) as an inter vivos gift to certain relatives.[13] Section 7(h)(2) permits shares to escheat to the corporation if the holder has no heirs, and permits a corporation to repurchase shares transferred by the laws of intestate succession to a person who is not a Native or descendant of a Native.[14] The transaction contemplated by the settlement agreement does not fall within any of these exceptions. We therefore infer that no exception applies for transfer of ANCSA stock back to a Native corporation in exchange for stock in a newly created corporation.

Jimerson argues that the legislative history of the 1987 ANCSA amendments shows that section 7(h)(1)(B) does not prevent holders from transferring shares back to a Native corporation is not necessarily inconsistent with the legislative history, she has not shown a contrary legislative purpose to a plain language interpretation of the statute.[15] The legislative history available is sparse and equivocal.[16] In fact, portions of the legislative history suggest that a Native corporation does not have the power to repurchase its own shares.[17]

The language of section 7(h)(1)(B) indicates that the transaction contemplated by the settlement agreement violates ANCSA . That the transaction does not fall within ANCSA enumerated exceptions confirms this interpretation. Jimerson has failed to demonstrate through the use of legislative history a contrary legislative purpose. We therefore hold that the settlement agreement is unenforceable because it directly contravenes the section 7(h)(1)(B) restrictions on ANCSA stock.

IV. CONCLUSION

We AFFIRM the superior court’s denial of Jimerson’s motion for enforcement of the settlement agreement.

Conitz vs. Teck Cominco Alaska, Inc. and NANA Regional Corporation

ORDER REGARDING PENDING MOTIONS

Plaintiff Gregg Conitz (“Plaintiff”), an employee of Teck Cominco Alaska, Inc. (“Teck Cominco”), alleges that he was turned down for two Separate promotions because of Teck Cominco’s hiring preference for NANA Regional Corp. (“NANA”) shareholders. Plaintiff, who is not a NANA shareholder, argues that this shareholder hiring preference is a “surrogate” or “proxy” for race and therefore illegal under state and federal anti-discrimination law.[1]

To assert a claim for discrimination and retaliation under federal and state law, a plaintiff-employee must first establish a prima facie case that sets forth facts which raise an inference of discrimination. Only after Plaintiff establishes a prima facie case does the burden shift to the employer to articulate some legitimate nondiscriminatory reason for the employee’s rejection.[2]

To establish a prima facie case “the complainant must show that (1) the complainant belongs to a protected class; (2) the complainant applied for and was qualified for a job for which the employer was seeking applications; (3) the complainant was rejected despite the complainant’s qualifications; and (4) after the complainant’s rejection, the position remained open and the employer continued seeking applications from persons with the complainant’s qualifications.”[3] “[I]f an employer has not left the disputed position open, and has instead hired someone else, the fourth element of the prima facie case is the hiring of an individual not within the same protected class as the complainant.”[4]

Plaintiff’s discrimination and retaliations claims necessarily fail because Plaintiff has not demonstrated that he was qualified for the training and supervisory positions which he sought. Plaintiff therefore fails to establish elements 2 and 3 of the prima facie case. Indeed, the evidence shows that Plaintiff has a poor safety record, little leadership and supervisory experience, and no formal training as a trainer.[5] Additionally, the evidence shows that the individuals who were ultimately selected for the positions were more qualified than both Plaintiff and all other applicants.

Because Plaintiff has not established a prima facie case of discrimination, the burden does not shift to Teck Cominco to demonstrate legitimate nondiscriminatory reasons for not promoting Plaintiff. Even so, Teck Cominco’s policy of hiring the most qualified applicants and its concern regarding Plaintiff’s poor safety record are both legitimate and nondiscriminatory and do not appear to be pretexts for discrimination. When a hiring or firing decision is based upon a lack of proper qualifications, the decision is legitimate and nondiscriminatory as a matter of law.[6]

Further, even if Teck Cominco’s explanations were pretextual, application of the shareholder hiring preference is not prohibited by law because it is based on the permissible distinction of shareholder status rather than race.[7] Not all Natives are NANA shareholders and not all NANA shareholders are Alaska Natives. A non-Native can become a NANA shareholder through marriage, adoption, or inheritance, and counsel for NANA avers that at least 65 of NANA’s 11,655 current shareholders fall into this category.[8] Thus, Plaintiff’s claim that the shareholder hiring preference is a “surrogate” or “proxy” for race is incorrect.

Because Plaintiff has not established a prima facie case, and because the shareholder hiring preference is based on a permissible distinction, the Court need not consider whether 43 U.S.C. § 1626(g) exempts Teck Cominco from the state and federal anti-discrimination laws upon which this suit is based.[9]

Finally, regarding Plaintiff’s claim that Teck Cominco employees invaded Plaintiff’s privacy by opening his personal mail which he had forwarded to his work address, the Court finds that Plaintiff has presented no evidence to support his claim that mail addressed to him was intentionally opened or read. Without evidence of intentionality, Plaintiff has no claim.[10]

The Court therefore concludes that Teck Cominco is entitled to summary judgment on all claims presented by Plaintiff. Accordingly, Teck Cominco’s Motion at Docket 91 is granted, all other pending motions are denied as moot, and this matter is dismissed with prejudice.

It is so ordered.

ENTERED this 21st day of July, 2008.

/s/ RALPH R. BEISTLINE

United States District Judge

City of Seldovia, Alaska vs. Seldovia Native Association, Inc.

Order

This case involves a dispute between a native village corporation and a municipal corporation over a “reconveyance” mandated by 43 U.S.C. § 1613(c)(3). The parties have been unable to resolve their dispute and therefore have submitted it to the Court for resolution. Because this case involves the interpretation and application of a federal statute, this Court has jurisdiction pursuant to 28 U.S.C. § 1331.

Discussion

I. Background

This dispute arises under the Alaska Natives Claims Settlement Act (“ANCSA”). See 43 U.S.C. § 1601-1629e (1988); Aleknagik Natives, Ltd. v. United States, 635 F. Supp. 1477, 1491 (D. Alaska 1985), aff’d, 806 F.2d 924 (9th Cir. 1986). In passing this legislation, Congress declared as a national policy that “there is an immediate need for a fair and just settlement of all claims by Natives and Native groups of Alaska,” and that “settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation … .” 43 U.S.C. § 1601(a), (b).”

ANCSA expressly extinguished all aboriginal rights.[1] See 43 U.S.C. § 1603; United States v. Atlantic Richfield Co., 435 F. Supp. 1009 (D. Alaska 1977), aff’d, 612 F.2d 1132 (9th Cir.), cert. denied, 499 U.S. 888 (1980). In exchange, Congress provided for a monetary payment and conveyance of certain lands to Alaskan natives. The land and payments were not conveyed directly to individuals. Instead, conveyances were made to native corporations authorized by the Act. ANCSA created two tiers of native corporations–regional and village–and arranged for payments of land and money to be made to these business organizations. 43 U.S.C. § 1601-1607, 1613.

Congress included provisions in ANCSA to protect those in actual possession of lands subject to transfer under the Act. Congress provided that portions of these lands would be transferred back to three different classes of entities. 43 U.S.C. § 1613. First, the village corporations were to convey the primary place of residence, business, subsistence campsite or “headquarters for reindeer husbandry” to any person who occupied land within the tract conveyed to the village corporation. 43 U.S.C. § 1613(c)(1); Hakala v. Atxam Corp., 753 P.2d 1144 (Alaska 1988). Second, the village corporations were to convey land occupied by any nonprofit organization to the organization. 43 U.S.C. § 1613(c)(2). Finally, and of relevance to the instant case, the village corporations were to convey a specified amount of land to municipal corporations sufficient to meet foreseeable community needs. ANCSA § 14(c)(3), 43 U.S.C. § 1613(c)(3)(“Section 14(c)(3)”). Specifically, Section 14(c)(3) provided:

[T]he Village Corporation shall convey to any Municipal Corporation in the Native village or to the State in trust for any Municipal Corporation established in the Native village in the future, title to the remaining surface estate of the improved land on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs: Provided, That the amount of lands to be transferred to the Municipal Corporation or in trust shall be no less than 1,280 acres unless the Village Corporation and the Municipal Corporation or the State in trust can agree in writing on an amount which is less than one thousand two hundred and eighty acres: Provided further, That any net revenues derived from the sale of surface resources harvested or extracted from lands reconveyed pursuant to this subsection shall be paid to the Village Corporation by the Municipal Corporation or the State in trust: Provided, however, That the word “sale”, as used in the preceding sentence, shall not include the utilization of surface resources for governmental purposes by the Municipal Corporation or the State in trust, nor shall it include the issuance of free use permits or other authorization for such purposes;

43 U.S.C. § 1613(c)(3). These conveyances are termed “reconveyances,” because the village corporation must reconvey to third parties land that the federal government has conveyed to it. In order to encourage a final settlement with respect to the land, all conveyances pursuant to Section 14(c)(3) are subject to a one-year statute of limitations period. 43 U.S.C. § 1632(b).

II. Procedure for Reconveyance Under Section 14(c)(3)

When Congress enacted Section 14(c)(3) and required that village corporations transfer land to municipal corporations, it apparently envisioned that people with similar interests and cultural backgrounds would belong to the village corporations and their corresponding municipalities, and that the memberships in these groups would overlap. Testimony at trial has indicated that this is the common situation throughout Alaska. However, this paradigm does not apply in the present case. See Janet Klein, A History of Kachemak Bay, the County, the Communities, Homer Society of Natural History, Homer, Alaska (1981) (describing the settlement of Seldovia by European immigrants). Probably as a result of this expectation, Congress overlooked the potential for disputes between village corporations and municipalities. Congress did not enact specific procedures for resolving disputes concerning reconveyances under Section 14(c)(3). The proper procedure to follow and the Court’s proper role in resolving these disputes has been the subject of disagreement in this case and must be addressed in some detail.

The defendant, Seldovia Native Association (“SNA”), proposes the following dispute-resolution procedure. After consultation, if an agreement could not be reached between a village corporation and an affected municipal corporation, then the village would make an offer of 1280 acres to the municipality. If the municipality rejected that offer, it could appeal the issue to the federal district court. The court would then interpret the statutory language of Section 14(c)(3), using traditional tools of statutory interpretation, and derive specific criteria for the selection of lands. For example, the court could determine that the term “necessary” in Section 14(c)(3) means “essential.” If so, then one criteria for any land conveyed would be that it was essential for some use by the municipality.

Once the court determined the selection criteria, it would, under SNA’s proposal, apply those criteria to the parcel of land proposed for reconveyance by the village. However, the court would not apply the criteria de novo, but would instead apply the deferential standard appropriate for reviewing agency decisions to the original selections offered by the village. If the selections do not meet the criteria under the deferential standard of review, then the court would then order the village to prepare a new offer of land, and if the municipality rejected that offer, the appellate process would begin anew until an acceptable resolution was reached.

Judge Kleinfeld, my predecessor in this case, agreed with part of SNA’s position.[2] He interpreted the phrasing of the limitations period as compelling the Court to review decisions made by the village corporation, as opposed to making the original decisions itself. The limitations statute states:

Decisions made by a Village Corporation to reconvey land under section 14(c) of [ANCSA] shall not be subject to judicial review unless such action is initiated before a court of competent jurisdiction within one year after the date of the filing of the map of boundaries as provided for in regulations promulgated by the Secretary.

43 U.S.C. § 1632. Judge Kleinfeld thought that because the statute discussed “decisions made by a village corporation,” Congress intended that SNA had the initial right to select land for reconveyance, i.e., propose a map describing land to be conveyed, which the Court would review. He refused, however, to afford the village corporation’s decision any special deference.[3]

Under Judge Kleinfeld’s analysis, the village would propose a map, which the court would review for compliance with Section 14(c)(3) criteria. The could would perform this review de novo. Should the map not comply with the criteria, the court would then direct the village to propose another parcel which would be reviewed in similar fashion. The court, however, would not “create its own map.” Docket No. 61 at 37 (transcript of May 28, 1991 oral argument).

A difficulty in the procedure proposed by Judge Kleinfeld is that it does not provide for a final resolution of its dispute. Under this procedure, the municipality and this court would be subject to potentially continuous litigation or, under the threat of continuous litigation, the party with the least resources for litigation would be pressured to accept its opponents’ proposal on its face. Continuous litigation, or the mere threat of continuous litigation, would undermine the primary and overall objective of the legislation, which was to expeditiously resolve disputes over land. See 43 U.S.C. § 1601(a), (b). While this goal remains illusive, it would be at best ironic to incorporate a procedure whereby extensive land disputes are institutionalized by the very legislation intended to resolve them. See Martha Hirschfield, Comment, The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form, 101 Yale L. J. 1331, 1332 n. 14 (1992) (hereinafter “Hirschfield”) (discussing continuing problems with ANCSA implementation).

Aside from conflicting with the stated purpose of ANCSA, the procedures proposed by both Judge Kleinfeld and the defendant are inconsistent with constitutional due process requirements. Congress is generally under no obligation to create a property right in any private individual or group. Once Congress decides to vest property rights in an individual, however, those rights are protected by the Due Process Clause. Arnett v Kennedy, 416 U.S. 134, 167 (1974), reh’g denied, 417 U.S. 977, see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985);[4] McGraw v. City of Huntington Beach, 882 F.2d. 384, 389 (9th Cir. 1989); Dorr v. Butte County, 795 F.2d 875, 877 (9th Cir. 1986). The Due Process Clause prevents adjudication of a dispute over property rights by men and women who have even an indirect interest in the outcome. Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (board of opticians consisting of independent opticians was prohibited from determining whether other opticians could practice as employees because board members would obtain a financial advantage by eliminating competition from companies who hire opticians); Ward v. Village of Monroeville 409 U.S. 57 (1972); California Tahoe Regional Planning Agency v. Sahara Tahoe Corp., 504 F. Supp. 753, 761 (D. Nev. 1980).

Congress has given the City property rights to 1280 acres of land. The Court cannot, therefore, consider SNA’s decision as to which land to convey as determinative in adjudicating the issue. To do so would, even with de novo review, create a situation where SNA was adjudicating a disputed issue concerning its own property. That would violate the rule discussed in Gibson v. Berryhill, 411 U.S. at 579.

Courts should generally interpret statutes to avoid constitutional difficulties unless such an interpretation is clearly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bld. & Constr. Trades Council, 485 U.S. 568, 575 (1988); Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir. 1982), cert. denied, 459 U.S. 1055 (1982). The Court therefore determines that the phrase, “[D]ecisions made by a Village Corporation,” was intended to establish a moment in time when a right to review would accrue and the limitation period begin, (i.e., when the village corporation made its decision as to its final offer of land for reconveyance). See 43 U.S.C. § 1632(b). The map proposed by the village corporation presents its last and final offer, after which the one year statutory period begins. The offer is no more than one party’s position in a dispute. Indeed, as Judge Kleinfeld noted, it may be a violation of fiduciary duty for a village corporation’s board to make a decision representing anything other than the village corporation’s interest. See Parker v. Northern Mixing Co. 756 P.2d 881, 894 (Alaska 1988) (director of corporation cannot take personal advantage of business opportunity that belongs to the corporation); Bibo v. Jerry’s Restaurant, 770 P.2d 290 (Alaska 1989).

In consideration of constitutional due process limitations, the following procedure appears to be the most suitable for resolving disputes over conveyances under Section 14(c)(3). The municipal corporation is required to present a request for specific land. The parties will then negotiate with each other and, if no agreement can be reached the village will determine its best and final offer. That offer will be rendered in the form of a map, which, when filed, will initiate the one-year statutory limitations period. See 43 U.S.C. § 1632(b). The municipality then can bring suit. The Court will apply the statutory criteria to the competing proposals and decide which parcels of land should be conveyed.

In deciding not to follow the procedure offered by Judge Kleinfeld, the Court is aware that the doctrine of the law of the case limits reexamination of previous rulings in the same case. Richardson v. United States, 841 F.2d. 993, 996, amended, 860 F.2d 357 (9th Cir. 1988), cert. denied, 112 S. Ct. 1473 (1992); Bell Helicopter Textron, Inc. v. United States, 755 F. Supp. 269, 272 (D. Alaska 1990), aff’d, 967 F.2d 307 (9th Cir. 1992), cert denied, 113 S. Ct. 964 (1993). However, under certain circumstances, prior determinations that have become the law of the case may be reexamined. In Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir. 1990), the Ninth Circuit stated:

A court properly exercises its discretion to reconsider an issue in only three instances: (1) the first decision was clearly erroneous and would result in manifest injustice; (2) an intervening change in the law has occurred; or (3) the evidence on remand is substantially different.

The instant case presents the rare situation where a previous ruling would contradict two well-established lines of Supreme Court precedent. Supreme Court decisions are, of course, controlling on this Court. In this situation, the Court has little choice but to follow the Supreme Court’s reasoning rather than that of the conflicting previous ruling.

II. Substantive Interpretation of Section 14(c)(3)

The primary objective of a court in interpreting a statute is to determine the intent of Congress. Co Petro Marketing Group, Inc. v. Commodity Futures Trading Comm’n, 680 F.2d 566,570 (9th Cir. 1982); Hughes Air Corp. v. Public Utilities Comm’n, 644 F.2d 1334, 1337 (9th Cir. 1981). The best indication of congressional intent and the starting point for the court is the plain language of the statute itself. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, reh’g denied, 423 U.S. 884 (1975); California Rural Legal Assistance, Inc. v. Legal Services Corp., 917 F.2d 1171, 1175 (9th Cir. 1990). Where the plain meaning of the statute is ambiguous, (i.e., susceptible of two conflicting but reasonable interpretations, each of which would fit the facts of the case being considered), the Court looks to the legislative history of the statute and the overall structure or context of the provision. Perroton v. Gray, 958 F.2d 889, 893 (9th Cir. 1992).

The disputed terms in the instant case are those found in 43 U.S.C. § 1613(c)(3), which provides:

[The Village corporation must convey] title to the remaining surface estate of the improved land on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs . . .

43 U.S.C. § 1613(c)(3) (emphasis supplied). SNA argues that Congress intended for the village corporation to convey land that is essential for predictable community needs. According to the evidence presented at trial, city planners rarely forecast a community’s needs beyond the next five to ten years. Thus, SNA argues, in essence, that it is only obligated to convey any lands that are essential (meaning that ownership of the lands is the only way to satisfy some City need) to a community need which will be manifested within the next five to ten years, as shown by a city planning analysis. If the City cannot meet the burden of establishing such needs as to 1280 specific acres of land (and SNA argues that it cannot), then Section 14(c)(3) permits the village to select for reconveyance any 1280-acre parcel which the city is statutorily obligated to accept. In effect, SNA argues that this section establishes dual but independent rights: A right to land essential for foreseeable community needs and, a right to a distinct acreage minimum.

The City disagrees, arguing that Congress intended to provide municipalities with enough land to sustain the community for the next fifty to one hundred years. As it is not possible to determine the essential community needs in fifty years’ time, the City argues that Congress intended “necessary” to mean “useful,” not “essential.” Thus, where the City can show that some tract of land will be useful within the next fifty to one hundred years, that land should be conveyed up to a minimum of 1280 acres.

Evidence introduced at trial established that Congress could not have believed that the overwhelming majority of native villages would be in a position to establish a need for 1280 acres for “essential” community services as SNA defines those terms within the foreseeable future, i.e., ten to twenty years.

Conclusion

Congress has not defined the meaning of the terms “necessary” and “foreseeable community needs” in the context in which those terms are used. The parties have established that the statute is ambiguous by proposing plausible conflicting meanings for these terms. The Court, therefore, must look beyond the plain language of the statute. Perroton, 958 F.2d at 893.

The legislative history of Section 14 is sparse. As originally proposed, ANCSA did not require that villages incorporate as a condition for receiving land. See Joint Conference Report, Alaska Native Claims Act of 1971, Pub. L. No. 92-201, 92d Cong., 1st Sess., (1971), reprinted in 1971 U.S.C.C.A.N. 2247, 2255. As the municipalities themselves and not the village corporations could hold title to the land, reconveyance of lands to municipalities was not necessary. It was only late in the legislative process at a House and Senate conference that the proposed act was altered to require villages to incorporate in order to receive land.

The Conference Committee adopted Section 14 at conference based upon Section 15 in the Senate’s version of the bill. See S. 35, 92d Cong., 1st Sess. § 15(b)(2) (1971). As originally proposed the section stated:

Upon receipt of a patent or patents to selected lands, Village Corporations or the Services Corporation on their behalf . . . (C) shall issue deeds pursuant to subsection 11(g), without payment of any consideration, to any Municipal Corporation in the Native Village or to any Municipal Corporation established in the Native Village or to any Municipal Corporation established in the Native Village within five years of the date of enactment of this Act, to the surface estate of the improved land on which the village is located and of as much additional land as is necessary for community expansion, for appropriate rights-of-way for public use, airport sites, and such other interests in land as are reasonably necessary for public use and for foreseeable community needs . . . And provided further, That the amount of lands to be transferred to the Municipal Corporation shall be no less than one hundred and sixty acres[.]

Id. (emphasis added); see also, Senate Report (Committee on Interior and Insular Affairs) on Alaska Native Claims Settlement Act of 19971, S. Rep. 143, 175, 92d Cong., 1st Sess. § 15(b)(2)(C)(1971). Section 14 was adopted as proposed by the Conference Committee Report with one important substantive change: the village corporation was required to convey 1280 acres to the municipality, not 160 acres. Alaska National Interest Lands Conservation Act, Pub. L. No. 92-203, 85 Stat 688, 1971 U.S.C.C.A.N., 794-95. ANCSA Section 14 was amended in 1980 to allow the village corporations to convey less than 1280 acres to municipalities under certain circumstances. Pub. L. No. 96-487 § 1405, 94 Stat. 2371, 2494 (codified as amended, 43 U.S.C. § 1613(c)(3)(1986)).

Overall, this legislative history indicates that Congress’s intent in enacting Section 14 (c)(3) was to protect the existing users of the lands. See Hakala v. Atxam Corp., 753 P.2d 1144, 1147 (Alaska 1988) (court held that ANCSA § 14(c)(1), was intended to protect the existing rights of those using lands). The fact that, at the final legislative stage, Congress increased the minimum acreage requirement from 160 to 1280 acres, and nine years later, preserved the 1280 acres minimum despite testimony at hearing that 1280 acres was virtually never essential to meet existing or foreseeable municipal needs of native villages, indicates the high value Congress placed on this acreage minimum. The legislative history indicates that Congress intended to ensure that existing municipalities would have at least 1280 acres of land for potential growth, if they so chose.

In light of the legislative history, SNA’s proposed interpretation, requiring a municipality to either establish that a parcel of land is essential to immediately predictable community needs or to accept a random 1280 acre parcel, is unreasonably restrictive. Such an interpretation would have the effect of eliminating the minimum acreage requirement by abolishing its purpose. The evidence in this case establishes that municipalities would rarely be able to show essential need and receive useful land. In virtually all cases, the 1280 acres would consist of land that might be useless to the community. Thus, Congress’s goal-providing municipalities with a minimum of 1280 acres of useful land would be defeated. Interpreting Section 14(c)(3) as establishing dual but independent requirements for acreage and necessity would contradict the congressional intent.

It is more reasonable to interpret Section 14(c)(3) as a single requirement of useful land, which, unless otherwise agreed, must be a minimum of 1280 acres. Such an interpretation would give a meaning to the 1280-acre minimum. See Love v. Thomas, 858 F.2d 1347, 1354 (9th Cir. 1988), cert. denied, 490 U.S. 1035 (1989) (when faced with an apparent conflict courts should interpret a statutory provision to avoid “redundancy or surplusage”). The Court will avoid making the 1280-acre minimum surplusage and will interpret Section 14(c)(3) as a single requirement, compelling the conveyance of 1280 acres of usable land.

Under this interpretation, the meaning of the disputed terms becomes clear. Congress knew and understood the size and the nature of the rural communities. Senate Report (Committee on Interior and Insular Affairs) on Alaska Native Claims Settlement Act of 1971, S. Rep. 143, 143-44, 92d Cong., 1st Sess. § 2, (1971) (discussing financial and physical condition of Alaskan natives). Congress therefore knew that municipalities would not be able to show an essential and immediately predictable need for 1280 acres. Nonetheless, Congress required conveyance of 1280 acres and refused to reduce or eliminate the acreage requirement when it amended Section 14(c)(3) in 1980. Pub. L. No. 96-487 § 1405, 94 Stat. 2371, 2494 (1980) (codified as 43 U.S.C. § 1613(c)(3)(1986)). The Court concludes, therefore, that Congress intended to establish a broad meaning of the terms “necessary” and “foreseeable community needs.”

Congress intended to provide land to the municipalities that was less than “essential” for community expansion. Of the many possible meanings for the term “necessary,” (e.g., essential, very useful, marginally useful and useless), the size of the minimum acreage requirement indicates that Congress intended to mean at least “useful.”

Similarly, Congress intended for “foreseeable community needs” to mean something less restrictive than “immediately predictable by a city planner.” Congress had a stated goal of efficiently resolving land disputes and was aware that the municipalities had limited resources. See 43 U.S.C. § 1601. The Court, therefore, refuses to interpret the statutory language as to effectively require municipalities to spend resources on a detailed five or ten year city plan in order to receive the land to which they have a right. Such an interpretation would delay the Congressional goal of resolving these disputes and would possibly frustrate the ultimate goal of Section 14(c)(3), which is to convey land to municipalities for their growth. Instead, this Court understands that Congress intended “foreseeable community needs” to mean realistic and possible community needs, not theoretical or hypothetical community needs. Also, it is important to note that this conveyance was a one-time transfer of land. Congress attempted to fairly apportion federally owned lands in Alaska. See 43 U.S.C. § 1613, Hirschfield, 101 Yale L. J. at 1335. Limiting the transfer to a parcel describable by a five or ten year city plan would artificially limit the growth of the community.

Having visited the site that is in dispute and having carefully discussed the evidence presented, I conclude that the reconveyance proposed by SNA and disputed by the City does not constitute the land most useful for municipal purposes which is owned by SNA in the vicinity of the City. I cannot compel the City to accept this land over its objections. On the other hand, I agree with SNA that Congress intended that land was to be conveyed for municipal purposes, not for speculation or for competition with the village in income-producing activities. The Court therefore cannot approve any existing plan.

Having disapproved the proposed reconveyance, and established criteria for evaluating any future reconveyance, the Court is now prepared to establish procedures for bringing this case to a final conclusion. It is possible that with the guidance provided by this decision, the parties may be able to settle this case. I am not optimistic. Nevertheless, I will allow some time for discussion between the parties, if this case cannot settle.

It is the Court’s intention to appoint three special masters, pursuant to Federal Rule of Civil Procedure (“FRCP”) 53, to review the record and take any additional evidence they feel necessary and, based on the evidence, formulate a plan for the reconveyance of 1280 acres owned by SNA, in the vicinity of Seldovia, which would be useful in meeting foreseeable municipal needs. In evaluating any particular parcel, the masters should consider alternate uses to which SNA has currently committed any specific parcel of land. The Court would allow the masters sixty days to deliver their plan and would allow the parties to file objections, in conformity with FRCP 53. The Court will then rule on the objections and resolve the case.

If the parties can agree on a panel of three men and women, knowledgeable about city planning in Alaska and willing to serve as special masters, and submit their name to the Court, the names submitted will be chosen as masters by the Court.

If the parties cannot agree on three masters, then each party shall choose one person who has some knowledge and understanding of local government or city planning in Alaska and who has no conflict of interest, assure that the person chosen will serve, and submit the name of that person to the Court no later than Monday, May 17, 1993. The two masters chosen by the parties will then meet and confer, at an agreed time and place, and pick the third master according to the same criteria, (i.e., willing to service, no conflict on interest, and knowledge about local government or city planning in Alaska). The masters will be paid by the parties.

The parties shall meet and confer, at an agreed time and place, and prepare a draft order of reference, which is in conformity with Federal Rule of Civil Procedure 53, naming the three masters chosen and indicating their agreement to serve, setting out in detail the directions to the masters for resolving this case and preparing a report and recommendation to the Court. The order of reference should also set out a proposed timetable for completion of the masters’ task and the terms established for payment of the masters’ fees and expenses. The parties should consult with the masters before proposing a timetable.

Is it my expectation that the parties, with the aid of their experienced counsel, should be able to reach general agreement regarding the provisions of the order of reference and file their proposed draft with the Court on or before Monday, May 24, 1993. If there are specific disagreements regarding particular terms, each party shall file a written statement regarding terms in dispute on or before May 24, 1993.