Ahtna, Inc. v. State of Alaska, Department of Natural Resources and Department of Transportation & Public Facilities

I. INTRODUCTION

The State claimed the right under Revised Statute 2477 (RS 2477) to clear land and permit the use of boat launches, camping sites, and day use sites within an alleged 100-foot right of way centered on a road on land belonging to an Alaska Native corporation. The Native corporation sued, arguing that its prior aboriginal title prevented the federal government from conveying a right of way to the State or, alternatively, if the right of way existed, that construction of boat launches, camping sites, and day use sites exceeded its scope.

After years of litigation and motion practice the superior court issued two partial summary judgment orders. It held as a matter of law that any preexisting aboriginal title did not disturb the State’s right of way over the land. It also concluded as a matter of law that the right of way was limited to ingress and egress. Because the superior court did not err when it granted the State’s motion regarding aboriginal title, we affirm that grant of partial summary judgment. But because the scope of a particular RS 2477 right of way is a question of fact, we reverse its conclusion as a matter of law that the State’s right of way is limited to ingress and egress.

II. FACTS AND PROCEEDINGS

A. The Dispute

Klutina Lake Road, known locally as the Brenwick-Craig Road, is a single-lane dirt road running approximately 25 miles along the Klutina River from Copper Center on the Richardson Highway to the outlet of Klutina Lake. Much of the road travels over land owned by Ahtna, Inc., the regional Alaska Native corporation.[1] The Ahtna Athabascan people have used and occupied the land for hundreds of years.

In 2007 the State cleared a swath of land along the road and removed one of the “permit fee stations” Ahtna had erected to collect fees for use of its land. The State claimed that it had established a 100-foot wide RS 2477 right of way for the cleared land “as early as 1899” and then again in the 1960s when the State “constructed a more official road.” The State claimed its RS 2477 right of way included a broad scope of activities, such as day use, camping, boat launching, parking, and fishing, as well as the right to travel over the road.

Ahtna objected to the State’s land clearing and destruction of Ahtna’s property. It disputed the existence and width of any State right of way, and it argued that any right of way that might exist permitted only ingress and egress. In early 2008 Ahtna filed a complaint for declaratory judgment and an injunction regarding the State’s alleged trespass on its land. Years of litigation ensued, culminating in the current appeal.

B. Statutory Background

Congress enacted RS 2477 in 1866 as part of the Lode Mining Act.[2] RS 2477 stated in its entirety: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”[3] The federal government’s grant of rights of way under RS 2477 “was self-executing, meaning that an RS 2477 right-of-way automatically came into existence ‘if a public highway was established across public land in accordance with the law of Alaska.'”[4]

Congress repealed RS 2477 in 1976 but left existing rights of way intact.[5] In Alaska, however, authorization for RS 2477 rights of way ended no later than January 1969, when the Secretary of the Interior withdrew all public lands not already reserved.[6] Because the statute was self-executing and did not require rights of way to be recorded, the existence of an RS 2477 right of way is frequently a matter of controversy.[7]

When determining the existence and scope of an RS 2477 right of way over Native corporation land, courts must also be mindful of the Alaska Native Claims Settlement Act (ANCSA).[8] Congress enacted ANCSA in 1971 “to settle all land claims by Alaska Natives.”[9] ANCSA “extinguished all claims of the Native people of Alaska based on aboriginal title in exchange for 962.5 million dollars and 44 million acres of public land.”[10] Section 4 of ANCSA addresses aboriginal title:

(a) Aboriginal title extinguishment through prior land and water area conveyances

All prior conveyances of public land and water areas in Alaska, or any interest therein, pursuant to Federal law, and all tentative approvals pursuant to section 6(g) of the Alaska Statehood Act, shall be regarded as an extinguishment of the aboriginal title thereto, if any.

(b) Aboriginal title and claim extinguishment where based on use and occupancy; submerged lands underneath inland and offshore water areas and hunting or fishing rights included

All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished.

(c) Aboriginal claim extinguishment where based on right, title, use, or occupancy of land or water areas; domestic statute or treaty relating to use and occupancy; or foreign laws; pending claims

All claims against the United States, the State, and all other persons that are based on claims of aboriginal right, title, use, or occupancy of land or water areas in Alaska, or that are based on any statute or treaty of the United States relating to Native use and occupancy, or that are based on the laws of any other nation, including any such claims that are pending before any Federal court or the Indian Claims Commission, are hereby extinguished.[11]

C. Proceedings

Ahtna’s 2008 lawsuit sought a declaration that the land in question was “free and clear of an RS 2477 [right of way]” and an injunction to prevent the State from “further trespass upon Ahtna’s lands.” Ahtna acknowledged that the United States had a 60-foot-wide easement allowing public travel on the road, but argued that the State did not have an additional 100-foot-wide RS 2477 right of way. The State counterclaimed, seeking to quiet title to the claimed right of way and arguing that its RS 2477 right of way was superior to the federal one. The parties repeatedly postponed trial in the hope of reaching a settlement. In 2014 Ahtna filed a second amended complaint, which forms the basis for the present litigation.

In 2016 Ahtna moved for partial summary judgement, seeking a declaration that RS 2477 rights of way permit only ingress and egress. The State opposed. In May 2016 the superior court granted the motion. The court determined that “RS 2477, which granted rights-of-way for ‘highways over public lands,’ conveyed the right to pass over the land, and nothing more.”

Ahtna separately moved for summary judgment “to establish that there is no RS 2477 right-of-way along the Klutina Lake Road” because then-existing aboriginal title prevented conveyance of an RS 2477 right of way. The State opposed. In June 2018 the superior court denied Ahtna’s motion for summary judgement based on aboriginal title. The court assumed without deciding that “aboriginal title land was not public land before Congress enacted ANCSA and Ahtna possessed aboriginal title to the land at issue.”[12] It then concluded that ANCSA applied retroactively and that ANCSA extinguished Ahtna’s aboriginal title.

The parties eventually stipulated to entry of final judgment under Alaska Civil Rule 54(b). Ahtna stipulated to the existence of a 100-foot RS 2477 right of way, “50 feet on each side of the centerline of the current location of Klutina Lake Road,” and two additional 100-foot RS 2477 rights of way between the Klutina Lake Road and Klutina River, subject to its right to appeal on the basis of aboriginal title. Both parties dismissed claims, some with prejudice and some without prejudice. However, the parties “agree[d] to preserve the right to appeal legal issues already decided…on motions for summary judgment.”

Ahtna appeals the superior court’s denial of summary judgment concerning aboriginal title. Ahtna also requests that we confirm the court’s assumption “that the Ahtna Athabascan people held aboriginal title to the Klutina River Valley.” The State cross-appeals the court’s partial summary judgment order declaring that any right of way pursuant to RS 2477 is limited to the right of ingress and egress.

III. STANDARD OF REVIEW

“We review grants of summary judgement de novo.”[13] We review a court’s interpretation of statutes de novo and ‘apply our independent judgement, adopting the rule of law that is most persuasive in light of precedent, reason, and policy.'”[14]

IV. DISCUSSION

A. The Superior Court Did not Err By Denying Ahtna’s Motion For Summary Judgment Based On Aboriginal Title.

1.We need not decide whether the land at issue was public or non-public as a matter of law.

The superior court narrowed the issues by assuming without deciding that “aboriginal title land was not public land before Congress enacted ANCSA and Ahtna possessed aboriginal title to the land at issue.” On appeal Ahtna urges us to confirm the superior court’s assumption and explicitly hold that Ahtna possessed aboriginal title to the land surrounding Klutina Lake Road prior to the passage of ANCSA. But such a determination is not necessary. As discussed below, even if Ahtna did possess aboriginal title prior to ANCSA, passage of the statute retroactively validated the RS 2477 right of way. We therefore decline to decide the issue.[15] Like the superior court, we assume without deciding that Ahtna possessed aboriginal title to the land surrounding Klutina Lake Road prior to the passage of ANCSA.

2. The superior court’s decision that ANCSA precluded Ahtna’s aboriginal title arguments is consistent with precedent.

The superior court held that aboriginal title did not prevent an RS 2477 right of way because ANCSA § 4(a) “extinguish aboriginal title as a defense to pre-ANCSA conveyances of federal land encumbered by aboriginal title at the time of conveyance.” Ahtna does not claim that it still possesses aboriginal title over the land surrounding Klutina Lake Road. Instead, it argues that because it had aboriginal title when the federal government was offering RS 2477 rights of way, the land was not “public land” under RS 2477 and was therefore not eligible for an RS 2477 conveyance. Ahtna argues that because the land was never eligible under RS 2477, there was no conveyance, and ANCSA could not have validated a conveyance that did not occur.

Ahtna also claims that its argument is not precluded by ANCSA § 4(c), or which extinguishes “[a]ll claims…based on claims of aboriginal right, title, use, or occupancy of land or water areas in Alaska.”[16] According to Ahtna, § 4(c) precludes only claims, not defenses.

But we have previously rejected the same arguments. “The stare decisis doctrine rests on a solid bedrock of practicality; ‘no judicial system could do society’s work if it eyed each issue afresh in every case that raised it.'”[17] Because this case is not distinguishable from our prior cases addressing the same issues, we affirm the superior court’s order denying Ahtna’s motion for summary judgement based on aboriginal title.

a. Section 4(a) of ANCSA validated the RS 2477 right of way.

Assuming aboriginal title prevented a conveyance of a valid RS 2477 right of way for Klutina Lake Road, the first issue is whether Section 4(a) of ANCSA retroactively validated the RS 2477 right of way. Section 4(a) of ANCSA states: “All prior conveyances of public land and water areas in Alaska, or any interest therein, pursuant to Federal law, and all tentative approvals pursuant to section 6(g) of the Alaska Statehood Act, shall be regarded as an extinguishment of the aboriginal title thereto, if any.”[18]

Ahtna argues that Section 4(a) did not validate the conveyance of an RS 2477 right of way for Klutina Lake Road because aboriginal title prevented such a conveyance from occurring in the first place. The questions of whether ANCSA validated conveyances that would otherwise be barred by aboriginal title has already been answered in Paug-Vik, Inc. v. Wards Cove Packing Co.[19] In Paug-Vik a cannery sought and was granted a declaration confirming its right to use water from Seagull Lake.[20] Wards Cove Packing Company claimed that the 1930 appropriation of water by its predecessor in interest entitled it to water rights under 43 U.S.C. § 661.[21] Paug-Vik, Inc., the local Native corporation, protested the appropriation, arguing that “prior to ANCSA’s passage in 1971 Seagull Lake was used or occupied by the Natives of Naknek, thus conferring ‘aboriginal title’ on them and rendering the lake unavailable for appropriation by non-natives.”[22] When the appropriation was nonetheless granted, Paug-Vik appealed.[23]

We started our analysis in Paug-Vik by observing that “Congress has settled the question of whether conveyances of aboriginal title land under the federal public land laws are valid” because “Congress has declared in § 1603(a) of ANCSA that such conveyances are effective.”[24] After holding that water appropriation rights were conveyances covered by ANCSA, we concluded that such conveyances “therefore must be regarded as extinguishing aboriginal title to the same interest.”[25] We emphasized that our interpretation of ANCSA was consistent with ANCSA’s purpose, “which is that the extinguishment provisions of that section should be construed broadly to eliminate every claim resting on the assertion of aboriginal title.”[26] Our decision in Paug-Vik is directly applicable to this case.

Ahtna attempts to distinguish Paug-Vik by arguing that Paug-Vik addressed different statutory language and answered a different question by focusing on “the nature of the right acquired by an appropriation of water.” But Ahtna ignores Paug-Vik’s key holdings. While the main issues in Paug-Vik was whether the appropriation of water rights fell under the umbrella of § 1603(a) conveyance.[27] we also held that conveyances extinguish aboriginal title under ANCSA § 4(a).[28]

Ahtna’s attempt to distinguish the relevant statutory language is not persuasive. The statute at issue in Paug-Vik conveyed a right to water appropriation “[w]henever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued.”[29] there is no reason Ahtna’s theory — that aboriginal title meant there was no conveyance rather than an invalid conveyance curable by ANCSA — would not have applied in Paug-Vik. If that theory were correct, no conveyance could have occurred in Paug-Vik because aboriginal title would have prevented water rights from accruing in the first place. As the superior court observed, Ahtna’s reading of ANCSA § 4(a) “would only extinguish aboriginal title on land that was not encumbered by aboriginal title. Or, in other words, it would do nothing.”

Federal cases interpreting ANCSA also support the superior court’s holding. In United States v. Atlantic Richfield Co. the Ninth Circuit addressed trespass claims based on aboriginal title.[30] The Ninth Circuit held that ANCSA applied retroactively and “extinguished not only the aboriginal titles of all Alaska Natives, but also every claim ‘based on’ aboriginal title in the sense that the past or present existence of aboriginal title is an element of the claim.”[31] In Edwardsen v. Morton a federal district court rejected a challenge to pre-ANCSA conveyances despite recognizing that the conveyances were “void when granted.”[32] As the court explained, “Congress could constitutionally, and did in effect, give the State good title…by removing the only impediment to the validity of the approvals rather than by making a new conveyance of title.”[33] Because its decision was mandated by precedent, the superior court did not err when it decided that ANCSA § 4(a) retroactively validated the conveyance of an RS 2477 right of way for Klutina Lake Road.

b. ANCSA does not distinguish between claims and defenses.

Ahtna attempts to distinguish these earlier cases by arguing that ANCSA’s language applies only to affirmative claims, not defenses.[34] Ahtna points out that ANCSA § 4(c) refers to “claims” but argues that “[n]o court has ever held that ANCSA § 4(c) precludes a litigant from defending against an RS 2477 claim on the basis of…then-unextinguished aboriginal title.” But Paug-Vik made just such an argument when it used aboriginal title as a defense to a pre-ANCSA conveyance.[35] As the superior court noted, “[t]here is no meaningful distinction between the circumstances in Paug-Vik and this case.”

Ahtna supports its theory by citing Edwardsen, in which the court differentiated between “challenges to the validity of certain titles to land” and “claims for compensation for alleged trespasses.”[36] While it is true that Edwardsen interpreted ANCSA’s extinguishment of claims more narrowly than Atlantic Richfield, Edwardsen did not distinguish between defensive claims and affirmative claims. Instead, the Edwardsen court distinguished between trespass claims based on the loss of aboriginal title.[37] It rejected claims invoking aboriginal title to invalidate a conveyance.[38] Thus, even the Edwardsen court’s narrower interpretation of ANCSA would not support Ahtna’s theory. Because Ahtna’s argument that ANCSA extinguishes only affirmative claims has no support in the statute or precedent, the superior court did not err in rejecting that argument.

B. It was Error to Conclude As A Matter Of Law That The Klutina Lake Road RS 2477 Right Of Way Was Limited To Ingress And Egress.

The State cross-appeals, arguing that the superior court erred when it held the RS 2477 right of way is inherently “limited to ingress and egress, and cannot, as a matter of law, accommodate activities associated with travel in Alaska such as boat launching, camping, parking, and day use.” We agree in part: RS 2477 rights of way are limited to highway purposes, which are broader in scope than mere “ingress and egress” but narrower in scope than the State advocates. Because the superior court took such a narrow view of the RS 2477 right of way’s scope as a matter of law without actually considering the factual underpinning of each use the State proposed, we remand for further proceedings about specific uses consistent with the following discussion of relevant law.

RS 2477 was self-executing; a “right-of-way automatically came into existence ‘if a public highway was established across public land in accordance with'” state law.[39] Alaska recognizes RS 2477 rights of way through two means: “the public must use the land ‘for such a period of time and under such conditions as to prove that the grant has been accepted,’ or appropriate public authorities of the state must act in a way that clearly manifests their intention to accept the grant.”[40] After considerable litigation in the parties in this case stipulated that the Klutina Lake Road is a 100-foot wide RS 2477 right of way centered on the roadway.

RS 2477 rights of way are limited in scope.[41] The full text of the statute stated: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”[42] “Highways” granted by RS 2477 are rights of ways synonymous with easements, not fee simple interests, and therefore create only a right of use.[43] Subject to the limitations inherent in the federal grant of a highway easement, the scope of the easement’s use is defined by, and occasionally limited by, state law.[44] The relevant state law is the law in effect when the offer of RS 2477 grants was withdrawn — not contemporary highway laws and regulations.[45] Federal Public Land Order 4582 withdrew public lands in Alaska and prevented the establishment of new or expanded RS 2477 rights of way after January 17, 1969.[46] Congress then preserved existing rights of way when it repealed RS 2477 on October 21, 1976.[47] The scope of RS 2477 highway easements in Alaska therefore had to be established by January 17, 1969.[48] In 1969 former AS 19.05.130(8) defined “highway” to include “a highway (whether included in primary or secondary systems), road, street, trail, walk, bridge, tunnel, drainage structure and other similar or related structure or facility, and right-of-way thereof,…whether operated solely inside the state or to connect with a Canadian highway, and any such related facility.”[49]

Although RS 2477 rights of way tend to be liberally construed such that “[w]hatever may be construed as a highway under State law is a highway under [RS 2477],” state law does not “override federal requirements or undermine federal land policy.”[50] For example, the Ninth Circuit Court of Appeals held that even though “Montana law in 1901 [allegedly] recognized a right to run utilities along a highway right of way,…Congress had adopted a federal rule that power transmission is not within the scope of an R.S. 2477 highway right of way and had excluded any implied borrowing a state law on this point.”[51] And the Tenth Circuit Court of Appeals has similarly recognized “that R.S. 2477 rights of way are limited to highway purposes, and do not encompass ancillary uses such as utility lines, notwithstanding state law to the contrary.”[52] We have previously construed RS 2477 grants to permit “only a right of use” as a right of way, not the construction of ancillary facilities such as a park.[53]

The legal concepts of “right of way” and “highway” in 1969 similarly suggest a relatively narrow scope for RS 2477 rights of way. Black’s Law Dictionary defined “right of way” as “a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another.”[54] A “highway” was defined as 

[a]n easement acquired by the public in the use of a road or way for thoroughfare. A free and public roadway, or street; one which every person has the right to use. Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other.[55]

Black’s Law Dictionary also listed examples of highways: “carriage-ways, bridle-ways, foot-ways, bridges, turnpike roads, railroads, canals, ferries or navigable rivers.”[56]

The State urges us, based on Dillingham Commercial Co. v. City of Dillingham, to hold that RS 2477 rights of way include any use “consistent with public travel,” including boat launches, camping, and day use. The State’s quotation is correct, but Dillingham merely permitted an existing RS 2477 right of way across the servient estate to a beach for cargo loading to include access to a new loading dock that did not exist when the right of way was established and was not located on the servient estate; it does not support expanding the right of way’s scope to include uses other than travel-related activities.[57] In Dillingham we explicitly rejected the argument that an RS 2477 right of way allowed the government to “use the land for any purpose, such as a park.”[58] And although the State is correct that in Dickson v. State, Department of Natural Resources we disavowed any notion that historic use is relevant once an RS 2477 right of way is established, we did not address whether the right of way’s scope included uses inconsistent with relevant definitions of “highway.”[59]

Akin to typical right of way easements, where the holder is limited to reasonable use of the easement, the holder of an RS 2477 right of way is “authorized to make any use…reasonably necessary for the convenient enjoyment of the easement”[60] subject to the terms and “purposes for which the servitude was created.”[61] The State may maintain and modernize the road, but any expansions must be consistent with the scope of the federally granted right of way: as a highway defined and limited by relevant state of law.[62] For example, we recently affirmed a superior court’s determination that maintenance activities — such as “grading and compacting the road and plowing snow and other debris off the side of the road” — which caused an “[i]ncidental widening” of a right of way easement did not constitute unreasonable interference with the servient estate despite damage to the bordering “trees and brush.”[63]

Fact finding is necessary to determine which of the State’s proposed projects along Klutina Lake Road are reasonably necessary for and within the scope of a highway, as the term was used in 1969. This requires the superior court, within its discretion, to balance the interests of the servient and dominant estates.[64] In light of the length, condition, and purpose of the RS 2477 right of way, some of the State’s proposed projects may more reasonably relate to those factors than others. Projects such as occasional pull-outs for travelers to rest or a restroom facility may better fit within the scope of a 1969 highway than removing vegetation to provide river views or potential fishing sites. A boat ramp at the end of the road, like the dock in Dillingham, may be more reasonable than a series of ramps with associated parking lots along the length of the road. In short, the State must demonstrate that its proposed projects relate to facilitating highway transportation, i.e., that the projects are reasonably necessary for highway purposes as defined in 1969, not simply that the projects would be nice facilities along the highway. And the superior court must use its discretion to determine whether the State’s proposed projects would unreasonably interfere with Ahtna’s reasonable use of the land. Because the State has not had an opportunity to present its proposed projects to the court and litigate Ahtna’s opposition to those proposed projects, a remand for further proceedings on this aspect of the dispute is required.

V. Conclusion

 The superior court’s grant of partial summary judgment regarding aboriginal title is AFFIRMED. But its grant of partial summary judgment establishing that as a matter of law the scope of the RS 2477 right of way use is limited to ingress and egress is VACATED and REMANDED for further proceedings consistent with our decision.

Akiachak Native Community v. Salazar

MEMORANDUM OPINION

Four tribes of Alaska Natives and one individual Native brought this suit to challenge the Secretary of the Interior’s decision to leave in place a regulation that treats Alaska Natives differently from other native peoples. The challenged regulation governs the taking of land into trust under Section 5 of the Indian Reorganization Act, 25 U.S.C. § 465; it provides that, with one exception, the regulatory procedures “do not cover the acquisition of land in trust status in the State of Alaska.” 25 C.F.R. § 151.1. The plaintiffs argue that this exclusion of Alaska Natives — and only Alaska Natives — from the land-into-trust application process is void under 25 U.S.C. § 476(g), which nullifies regulations that discriminate among Indian tribes. The State of Alaska has intervened to argue that the differential treatment is required by the Alaska Native Claims Settlement Act (“ANCSA” or the “Claims Settlement Act”), which (on the State’s account) deprived the Secretary of the statutory authority to take most Alaska land into trust. The Secretary disagrees, but nonetheless seeks to justify the regulation by references to ANCSA. For the reasons explained below, the court concludes that the Secretary retains his statutory authority to take land into trust on behalf of all Alaska Natives, and that his decision to maintain the exclusion of most Natives from the land-into-trust regulation violates 25 U.S.C. § 476(g), which provides that contrary regulations “shall have no force or effect.” The court therefore grants summary judgment to the plaintiffs, and orders additional briefing on the question of the proper remedy.

I. BACKGROUND

The land claims of Alaska Natives remained unresolved for the first century of our history in Alaska. The Treaty of Cession, by which Russia conveyed Alaska to the United States, provided that “[t]he uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.” Treaty of Cession, U.S.-Russia, art. 3, Mar. 30, 1867, 15 Stat. 542. When the Organic Act of 1884 established a civil government in Alaska, it also declared “[t]hat the Indians or other persons in said district [that is, the Territory of Alaska] shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed to them.” Organic Act of 1884, § 8, 23 Stat. 24, 26. However, the establishment of “the terms under which such persons may acquire title to such lands” was “reserved for future legislation by Congress.” Id. The Supreme Court has explained that both the Organic Act of 1884 and the Act of June 6, 1900, 31 Stat. 321, were “intended… to retain the status quo” regarding the land claims of Alaska Natives “until further congressional or judicial action was taken.” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 278 (1955).

Congress enacted a series of laws providing land for Alaska Natives without resolving their claims of aboriginal right. A reservation was established by Congress in 1891 for the Metlakatla Indians, who had recently moved to Alaska from British Columbia. See Metlakatla Indians v. Egan, 369 U.S. 45, 48 (1962). In the year that followed, other reserves were established by executive order. See COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 4.07[3] [b] [iii], at 337-38 (Nell Jessup Newton ed., 2012); DAVID S. CASE & DAVID A. VOLUCK, ALASKA NATIVES AND AMERICAN LAWS 81-110 (3d ed. 2012) (both discussing the history of reservation policy in Alaska). While those reserves were being established, Congress enacted Alaska Native Allotment Act, Pub. L. No. 59-171, 34 Stat. 197 (1906), and the Alaska Native Townsite Act, Pub. L. No. 69-280, 44 Stat. 629 (1926). The Allotment Act allowed Alaska Natives to acquire title to as much as one hundred and sixty acres of land that they used and occupied, while the Townsite Act “provid[ed] for the patenting of lots within Native townsites.” United States v. Atlantic Richfield Co., 435 F Supp. 1009, 1015 (D. Alaska 1977), aff’d 612 F.2d 1132 (9th Cir. 1980). “Both acts placed restrictions on the title conveyed so that lands could not be alienated or taxed until… certain federally prescribed conditions were met.” CASE & VOLUCK at 113; see also Atlantic Richfield, 435 F. Supp. at 1015 (“Native townsite residents received a restricted deed, inalienable except by permission of the townsite trustee.”).

In 1934, Congress enacted the Indian Reorganization Act, Pub. L. No. 73-383, 48 Stat. 984. Section 5 of the IRA provided that:

The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands… within or without existing reservations, including trust or otherwise restricted allotments… for the purpose of providing land for Indians.

48 Stat. 985 (codified at 25 U.S.C. § 465). At the time of its enactment, Section 5 was inapplicable "to any of the Territories, colonies, or insular possessions of the United States," 48 Stat. 986 (codified at 25 U.S.C. § 473), but it was extended to the Territory of Alaska two years later, Act of May 1, 1936, Pub. L. No. 74-538, § 1, 49 Stat. 1250 (codified at 25 U.S.C. § 473a). That enactment also authorized the Secretary to designate reservations on certain Alaska lands. Id. § 2, 49 Stat. 1250-51. Seven reservations were established under that authority, see COHEN'S HANDBOOK § 4.07[3] [b] [iii], at 338, and three properties containing canneries were also taken into trust on behalf of Alaska Natives, AR 246 (Memorandum from Thomas L. Sansonetti, Solicitor, Department of the Interior ("Sansonetti Memo.") at 112 n.277 (Jan. 11, 1993)).

In 1971, Congress enacted the Alaska Native Claims Settlement Act, Pub. L. No. 92-203 § 2(b), 85 Stat. 688, “a comprehensive statute designed to settle all land claims by Alaska Natives,” Alaska v. Native Village of Venetie, 522 U.S. 520, 523 (1998). Congress declared its intention that,

the settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska[.]

ANCSA, § 2(b), 85 Stat. 688 (codified at 43 U.S.C. § 1601 (b)). To that end, the Claims Settlement Act "revoked 'the various reserves set aside... for Natives use' by legislative or Executive action, except for the Annette Island Reserve inhabited by the Metlakatla Indians, and completely extinguished all aboriginal claims to Alaska land." Venetie, 522 U.S. at 524 (citing ANCSA, § 4 and quoting id., § 19(a) (codified at 43 U.S.C. §§ 1603, 1618(a))). The terms of the extinguishment were as follows:

All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy… are hereby extinguished…

All claims against the United States, the State [of Alaska], and all other persons that are based on claims of aboriginal right, title, or occupancy of land or water areas in Alaska, or that are based on any statute or treaty of the United States relating to Native use and occupancy… are hereby extinguished.

ANCSA, § 4(b)-(c) (codified at 43 U.S.C. § 1603(b)-(c)). "In return, Congress authorized the transfer of $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations that were to be formed pursuant to the statute; all off the shareholders of these corporations were required to be Alaska Natives." Venetie, 522 U.S. at 524 (citing ANCSA, §§ 6, 8, 14 (codified at 43 U.S.C. §§ 1605, 1607, 1613)). "The ANCSA corporations received title to the transferred land in fee simple, and no federal restrictions applied to subsequent land transfers by them." Id. The Alaska Native tribes did not receive either land or money in the settlement; rather, their members received stock in the Native-owned corporations that received settlement land and funds. In that way, ANCSA "attempted to preserve Indian tribes, but simultaneously attempted to sever them from the land; it attempted to leave them as sovereign entities for some purposes, but as sovereigns without territorial reach." Venetie, 522 U.S. at 526 (quoting Venetie, 101 F.3d 1286, 1303 (9th Cir. 1996) (Fernandez, J., concurring)).

ANCSA repealed the Allotment Act, although the Secretary retained the power to process pending applications. ANCSA, § 18(a) (codified at 43 U.S.C. § 1617(a)). Five years later, Congress and the President enacted the Federal Land Policy and Management Act of 1976 (“FLPMA”), Pub. L. No. 94-579, 90 Stat. 2743, which repealed both the Townsite Act and Section 2 of the Act of May 1, 1936, 49 Stat. 1250–51, which authorized the Secretary to establish reservations in Alaska. See FLPMA § 704(a), 90 Stat. 2792. FLPMA did not repeal Section 1 of the 1936 Act, 49 Stat. 1250 (codified at 25 U.S.C. § 473a), which (among other provisions) authorized the Secretary to take Alaska land into trust on behalf of Alaska Natives.

In the years after the Claims Settlement Act, the question arose whether the Secretary’s land-into-trust authority had survived ANCSA and FLPMA, or whether one or both of those statutes had withdrawn a portion of that power. In 1978, the Secretary proposed a regulation to govern the taking of land into trust; the proposed rule made no special mention of Alaska. See Land Acquisitions, 43 Fed. Reg. 32,311 (July 19, 1978). Several months after that proposed rule was published, the Associate Solicitor for Indian Affairs signed an opinion letter addressing the question of whether the Secretary could take former reservation land into trust. The Associate Solicitor concluded that, in light of the Claims Settlement Act, “it would . . . be an abuse of the Secretary’s discretion to attempt to use Section 5 of the IRA (which, along with §§ 1, 7, 8, 15, and 17 of the IRA still apply to Alaska pursuant to the unrepealed portion of the Act of May 1, 1936) to restore the former Venetie Reserve to trust status.” AR 3 (Memorandum from Thomas W. Fredericks, Associate Solicitor, Indian Affairs, Department of the Interior (“Fredericks Memo.”) at 3 (Sept. 15, 1978)). The Associate Solicitor explained that:

The intent of Congress [in ANCSA] to permanently remove all Native lands in Alaska from trust status is unmistakable. The declaration of policy states that “the settlement should be accomplished… without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges…” 43 U.S.C. § 1601(b).

In analyzing the declaration of policy, the Senate Report stated: “A major purpose of this Committee and the Congress is to avoid perpetuating in Alaska the reservation and the trustee system.” S. Rep. No. 405, 92[nd] Cong., 1st Sess. (1971) at 108. This theme was oft repeated in the floor debates. . . .

The structure and legislative history of Section 19 itself precludes the restoration of former reservations to trust status. Section 19 revokes all reservations (except for Metlakatla) and directs that the land be conveyed to the ANSCA village corporation, not to the IRA entities. It does not allow Natives to vote for continued trust status. . . .

Also significant is the repeal, in Section 704(a) of the Federal Land Policy and Management Act of 1976, 90 Stat. 2743, of Section 2 of the Act of May 1, 1936, 49 Stat. 1250, 25 U.S.C. § 496, which . . .  gave the Secretary the authority to designate certain lands in Alaska as Indian reservations. . . .

In conclusion, Congress intended permanently to remove from trust status all Native land in Alaska except allotments and the Annette Island Reserve.

Id. at 1-3; see also Sansonetti Memo. at 112 n.276, AR 246 ("In 1978, the Acting Solicitor accepted the conclusion of the Associate Solicitor, Division of Indian Affairs, that although § 5 of the IRA, 25 U.S.C. § 465 (authority to acquire lands in trust for Indians), was not repealed with respect to Alaska, in light of the clear expression of congressional intent in ANCSA not to create trusteeship or a reservation system, it would be an abuse of discretion for the Secretary to acquire lands in trust in Alaska for the Natives of Venetie and Arctic Village.")).

When the final land-into-trust regulation was published in 1980, its preamble noted that, during the notice-and-comment period “[i]t was… pointed out that the Alaska Native Claims Settlement Act does not contemplate the further acquisition of land in trust status, or the holding of land in such status, in the State of Alaska, with the exception of acquisitions for the Metlakatla Indian Community.” Land Acquisitions, 45 Fed. Reg. 62,034, 62,034 (Sept. 18, 1980). “[C]onsequently a sentence [was] added… to specify that the regulations do not apply, except for Metlakatla, in the State of Alaska.” Id. That sentence, which is the subject of this litigation, reads as follows: “These regulations do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or it[s] members.” Id. at 62,036 (presently codified at 25 C.F.R. § 151.1). The court will refer to this provision as the “Alaska exception,” as its effect is disputed here.

In 1994, three tribes of Alaska Natives petitioned the Secretary to revise the land-into-trust regulations to “include within [their] scope all federally recognized Alaska Native tribes.” AR 275 (Petition for Rulemaking at 1 (Oct. 11, 1994)). The Secretary put that petition out for notice and comment, describing it as a request that the Secretary “remove the portion of the existing regulation that prohibits the acquisition of land in trust status in the State of Alaska for Alaska Native villages other than Metlakatla.” Land Acquisitions, 60 Fed. Reg. 1,956, 1,956 (Jan. 5, 1995).

Although the Secretary proposed a revision to the land-into-trust regulation in 1999, he noted that “[t]he proposed regulations would… continue the bar against taking Native land in Alaska in trust.” Acquisition of Title to Land in Trust, 65 Fed. Reg. 17,574, 17,578 (Apr. 12, 1999). The Secretary explained that, “[t]he regulatory bar to acquisition of title in trust in Alaska in the original version of these regulations was predicated on an opinion of the Associate Solicitor, Indian Affairs… which concluded that the Alaska Native Claims Settlement Act (ANCSA) precluded the Secretary from taking land into trust for Natives in Alaska (again, except for Metlakatla). Although that opinion has not been withdrawn or overruled, we recognize that there is a credible legal argument that ANCSA did not supersede the Secretary’s authority to take land into trust in Alaska under the IRA.” Id. at 17,577-78 (citations omitted). The Secretary noted that “if land were taken in trust by the Secretary, such trust land then would qualify as Indian country and an Alaskan tribe would have all the powers that pertain within Indian country” and invited “comment on the continued validity of the Associate Solicitor’s opinion and issue raised by the petition noticed at 60 FR 1956 (1995).” Id. at 17,578.

In 2001, the Secretary published a final rule and his Solicitor withdrew the Associate Solicitor’s opinion. The Solicitor announced that although “the Associate Solicitor for Indian Affairs concluded that the Alaska Native Claims Settlement Act (ANCSA) precludes the Secretary from taking land in trust for Alaska Natives except for members of the Metlakatla Indian Community… I have concluded that there is substantial doubt about the validity of the conclusion reached in the 1978 Opinion.” AR 619 (Memorandum from John Leshy, Solicitor, Department of the Interior (“Leshy Memo.”) at 1 (Jan. 16, 2001)). The Solicitor explained his conclusion as follows:

Among other things, the Associate Solicitor found “significant” that in 1976 Congress repealed section 2 of the Indian Reorganization Act (IRA). That section had extended certain provisions of the IRA to Alaska, and had given the Secretary the authority to designate certain lands in Alaska as Indian reservations. See U.S.C. § 704(a), 90 Stat. 2743, repealing 49 Stat. 1250, 25 U.S.C 496. The 1978 Opinion gave little weight to the fact that Congress had not repealed section 5 of the IRA, which is the generic authority by which the Secretary takes Indian land into trust, and which Congress expressly extended to Alaska in 1936. See 25 U.S.C. § 473a. The failure of Congress to repeal that section, when it was repealing others affecting Indian status in Alaska, five years after Congress enacted the Alaska Native Claims Settlement Act in 1971, raises a serious question as to whether the authority to take land in trust in Alaska still exists…

Because of my substantial doubt about the validity of the conclusion in the 1978 Opinion, and in order to clear the record so as not to encumber future discussions over whether the Secretary can, as a matter of law, and should, as a matter of policy, consider taking Native land in Alaska into trust, I am hereby rescinding the Associate Solicitor’s 1978 Opinion.

Leshy Memo. at 1-2, AR 619-20. Although that opinion was withdrawn, the "Department... in its final Part 151 regulations... decided in its sound discretion to continue to place the bar against taking Native land in Alaska into trust (other than Metlakatla)." AR 620. The preamble to the revised regulation announced that.

the position of the Department has long been, as a matter of law and policy, that Alaska native lands ought not to be taken in trust. Therefore, the Department has determined that the prohibition in the existing regulations on taking Alaska lands into trust (other than Metlakatla) ought to remain in place for a period of three years during which time the Department will consider the legal and policy issues involved in determining whether the Department ought to remove the prohibition on taking Alaska lands into trust. If the Department determines that the prohibition on taking lands into trust in Alaska should be lifted, notice and comment will be provided.

Acquisition of Title to Land in Trust, 66 Fed. Reg. 3,452, 3,454 (Jan. 16, 2001). The revised regulation amended the "prohibition on taking Alaska lands into trust," id., to read, "We will not accept title to land in trust in the State of Alaska, except for the Metlakatla Indian Community of the Annette Island reserve of Alaska or its members," id. at 3,460 (to be codified at 25 C.F.R. § 151.3(c)). In proposing a nearly-identical amendment, the Secretary had explained that the revised language "would make no change in the current regulations and would continue the bar against taking Native land in Alaska in trust." Acquisition of Title to Land in Trust, 65 Fed. Reg. at 17,578.

After delaying its effectiveness several times, the Secretary withdrew the revised land-into-trust rule later that same year. See Acquisition of Title to Land in Trust, 66 Fed. Reg. 56,608, 56, 609 (Nov. 9, 2001). This suit followed.

II. LEGAL STANDARD

 “[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law,” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), and the “complaint, properly read… presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action,” Marshall Cnty. Health Care Auth. v Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993); accord Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009); Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438, 440 n. 3 (D.C. Cir. 1999); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996). The district court’s review “is based on the agency record and limited to determining whether the agency acted arbitrarily or capriciously,” Rempfer, 583 F.3d at 865, “or otherwise not in accordance with law,” 5 U.S.C. § 706(2) (A), or another statutory standard.

III. ANALYSIS

A. Statutory Authority to Take Alaska Land Into Trust.

Despite the length and complexity of the history recounted above, the legal questions in this case are relatively straightforward. The first question is whether the Secretary still possesses the statutory authority to take land into trust for the benefit of Alaska Natives outside of Metlakatla.[1] Alaska land-into-trust authority was conferred in 1936, Act of May 1, 1936, § 1, 49 Stat. 1250 (codified at 25 U.S.C. § 473a), along with the authority to create Alaska reservations, id. § 2, 49 Stat. 1250-51. The reservation authority was repealed by FLPMA in 1976, see FLPMA § 704(a), 90 Stat, 2792, but the land-into-trust authority has not been explicitly repealed. And unlike some other claims settlement acts, ANCSA did not explicitly revoke the Secretary’s land-into-trust authority. Cf. Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 5(e), 94 Stat. 1785, 1791 (codified at 25 U.S.C. § 1724(e)) (“Except for the provisions of this subchapter, the United States shall have no other authority to acquire lands or natural resources in trust for the benefit of Indians or Indian nations, or tribes, or bands of Indians in the State of Maine.”).

The plaintiffs argue that, absent the explicit repeal of the Secretary’s Alaska land-into-trust authority – either by an amendment to the 1936 Act or a provision of the sort found in the Maine Claims Settlement Act – that authority should be understood to have survived ANCSA. After many ambiguous pronouncements and years of internal debate, the Secretary now agrees. Compare Fredericks Memo. at 3, AR 3 (“Congress intended permanently to remove from trust status all Native land in Alaska except allotments and the Annette Island Reserve.”) and Leshy Memo. at 1, AR 619 (concluding that there is a “serious question as to whether the authority to take land in trust in Alaska still exists”) with Defs.’ Reply [Dkt. #67] at 1-2 (arguing that “the Secretary… has discretionary authority to take Indian lands into trust status in the State of Alaska” and that ANCSA and FLPMA “have not removed the Secretary’s discretionary authority to take Indian lands into trust status in the State of Alaska”). Although “[t]he Secretary is not estopped from changing a view she believes to have been grounded upon a mistaken legal interpretation,” the Supreme Court has held that “the consistency of an agency’s position is a factor in assessing the weight that position is due.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993); see also United States v. Mead Corp., 533 U.S. 218, 228 (2001) (“The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the… agency’s… consistency…”) (footnotes omitted). “An agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)). For that reason, the court will accord the Secretary’s views on the question of his statutory authority only “the weight derived from their ‘power to persuade.'” Landmark Legal Found. v. IRS, 267 F.3d 1132, 1136 (D.C. Cir. 2001) (quoting, among other things, Skidmore v. Swift & Co., 323 U.S. 134, 140 (1994)).

The State of Alaska takes the position that the Claims Settlement Act implicitly repealed the Secretary’s statutory authority to take Alaska land into trust outside of Metlakatla. “While a later enacted statute… can sometimes operate to amend or even repeal an earlier statutory provision… ‘repeals by implication are not favored’ and will not be presumed unless the ‘intention of the legislature to repeal [is] clear and manifest.'” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007) (quoting Watt v. Alaska, 451 U.S. 259, 267 (1981)) (brackets in original). Because of this “cardinal rule” of statutory construction, Morton v. Mancari, 417 U.S. 535, 549 (1974) (quoting Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936)), a court “will not infer a statutory repeal ‘unless the later statute “expressly contradict[s] the original act”‘ or unless such a construction ‘is absolutely necessary… in order that [the] words [of the later statute] shall have any meaning at all,'” Nat’l Ass’n of Home Builders, 551 U.S. at 662 (quoting Traynor v. Turnage, 485 U.S. 535, 548 (1988), which quotes Radzanower v. Touche Ross & Co., 526 U.S. 148, 153 (1976), which in turn quotes THEODORE SEDGWICK, THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 98 (2d ed. 1874)) (alterations in original); see also Hunter v. FERC, 2013 WL 1003666, at *5 (D.C. Cir. Mar. 15, 2013) (noting the “strong presumption against implied repeals”); Fogg v. Gonzales, 492 F.3d 447, 453 (D.C. Cir. 2007) (applying the “interpretive norm against implied repeals”).

The State points first to ANCSA’s extinguishment of “[a]ll claims against the United States, the State [of Alaska], and all other persons that are based on claims of aboriginal right, title, use, or occupancy of land… or that are based on any statute or treaty of the United States relating to Native use and occupancy.” ANCSA, § 4(c) (codified at 43 U.S.C. § 1603(c)). If a petition to have Alaska land taken into trust is indeed such a “claim,” then ANCSA forecloses the Secretary’s authority to grant it. But, as the plaintiffs argue,[2] petitions to have land taken into trust are not “claims,” because to grant or deny those petitions is within the discretion of the Secretary, see 25 U.S.C. § 465, and a “claim” is necessarily an assertion of right, see Orenberg v. Thecker, 143 F.2d 375, 377 n.6 (D.C. Cir. 1944) (“‘Claim,’ in its primary meaning, is used to indicate the assertion of an existing right. In its secondary meaning, it may be used to indicate the right itself.”) (internal quotation marks omitted); BLACK’S LAW DICTIONARY 281-82 (9th ed. 2009) (defining “claim” as “[t]he assertion of an existing right”). Evidence from the legislative history of ANCSA indicates that Congress understood the word in this way.[3] And that the Claims Settlement Act speaks of “claims against the United States, the State [of Alaska], and all other persons,” ANCSA, § 4(c) codified at 43 U.S.C. § 1603(c)) (emphasis added), strengthens the conclusion by emphasizing that a claim is necessarily adverse to the interests of another party. Moreover, the fact that ANCSA included a separate, explicit provision repealing the Allotment Act, see id. § 18(a) (codified at 43 U.S.C. § 1617(a)), which would have been unnecessary if Congress understood ANCSA § 4(c) to “extinguish all claims by Alaska Natives, as Alaska Natives, to land in Alaska, whether the claim originated from aboriginal title… or was based on a statutory property right,” as the State has argued, Defs.’ Mot. [Dkt. # 76] at 26, suggests that Congress did not understand ANCSA’s extinguishment of claims to sweep as broadly as the State would have it. (The subsequent, explicit repeal of the Townsite Act and section 2 of the 1936 Act, see FLMPA, § 704(a), 90 Stat. 2792, would have been similarly redundant under the State’s interpretation.) And, finally, the State’s position would require the court to conclude that ANCSA eliminated the Secretary’s authority to take land in trust for the benefit of Metlakatla Indians, whose land claims were extinguished along with all other claims by Alaska Natives. If a petition to have land taken into trust is, as the State argues, a “claim[] against the United States… based on [a] statute or treaty of the United States relating to Native use and occupancy,” ANCSA, § 4(c) (codified at 43 U.S.C. § 1603(c)), then Metlakatlans are barred from submitting such petitions. But not even the State believes that that is true.

The State does not argue with any particular force that petitions to have land taken into trust are “claims” within the usual meaning of that word, and the court concludes that, because they are not, the Secretary’s authority to consider them is unaffected by ANCSA § 4(c).

The State turns to ANCSA’s declaration of congressional purpose, which indicates that “the settlement should be accomplished… without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges.” Id. § 2(b) (codified at 43 U.S.C. § 1601 (b)). To that end, ANCSA lands were conveyed to village and to regional corporations in fee simple. See Venetie, 522 U.S. at 524. Alaska Native tribes received neither land nor money in settlement, which disestablished all reservations except for Metlakatla. See ANCSA, § 19(a) (codified at 43 U.S.C. § 1618(a)). For the Secretary to now take trust title on behalf of Alaska Natives would, the State argues, create precisely the “lengthy… trusteeship” that ANCSA was designed to avoid. The State argues from both the structure of ANCSA, which converted large tracts of trust land into fee simple ownership while creating no new trust land, and the intention of its drafters and proponents,[4] many of whom associated trust land with paternalism and dependency,[5] to the conclusion that the Claims Settlement Act necessarily prevents the Secretary from taking additional Alaska land into trust.[6]

This statement of purpose could only effect an implicit repeal if it was an “irreconcilable conflict” with the Secretary’s land-into-trust authority, Branch v. Smith, 538 U.S. 254, 273 (2003) (quoting Posadas, 296 U.S. at 503), or to infer a repeal of that authority was “absolutely necessary in order that the words of the later statute shall have any meaning at all,” Nat’l Ass’n of Home Builders, 551 U.S. at 662 (brackets, ellipses, and internal quotation marks omitted). Although the Claims Settlement Act “sought to end the sort of federal supervision over Indian affairs that had previously marked federal Indian policy,” Venetie, 522 U.S. at 523-24, the terms of the settlement are “capable of co-existence” with the power to take Alaska land into trust, see Traynor, 485 U.S. at 548 (“The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)). There may be a tension between ANCSA’s elimination of most trust property in Alaska[7] and the Secretary’s authority to create new trust land, but a tension is not an “irreconcilable conflict.”[8] It is perfectly possible for land claims to be settled by transferring land and money to tribal corporations, while the Secretary retains the discretion – but not the obligation – to take additional lands (or, perhaps, those same transferred lands) into trust. Although ANCSA instructed that “the settlement should be accomplished… without creating a… lengthy… trusteeship,” ANCSA, § 2(b) (codified at 43 U.S.C. § 1601(b)), the fact that the settlement would not create a trusteeship does not necessarily mean that it prohibits the creation of any trusteeship outside of the settlement. Because it is possible to give effect to both ANCSA and the statute giving the Secretary land-into-trust authority in Alaska, it is the court’s obligation to do so.[9]

The text of ANCSA and its structure, read alongside FLPMA, suggest that the Secretary retains the authority to take Alaska land into trust. Congress explicitly – and, on the State’s view, redundantly – repealed the Allotment Act, the Townsite Act, and, the Secretary’s authority to establish reservations in Alaska. Congress did not explicitly eliminate the grant of authority to take Alaska land into trust. If the Secretary’s authority to take land into trust had been implicitly repealed, it would follow that his authority to establish reservations was repealed by an even stronger implication. But Congress felt the need to explicitly repeal the Secretary’s reservation authority in FLPMA. And the simple fact that the statute conferring land-into-trust authority in Alaska survives is a strong indication that the Secretary’s authority to take Alaska land into trust also survives.[10]

 From the weight of the textual and structural evidence, and the strength of the presumption against implicit repeals, the court concludes that ANCSA left intact the Secretary’s authority to take land into trust throughout Alaska and turns to the effect and legality of his land-into-trust regulations.[11]

B. Regulatory Authority

i. Effects of 25 C.F.R. § 151.1

The land-into-trust regulations state that they “do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of the Annette Island Reserve or it[s] members.” 25 C.F.R. § 151.1. The Secretary argues[12] that this Alaska exception does not prohibit him from exercising his discretionary authority to take Alaska land into trust outside of Metlakatla, but only bars him from doing so by means of the regulations that he has promulgated. On the Secretary’s account, the Alaska exception means precisely what it says, and the court should not interpret “do not cover” to mean anything more than that. Yet he also admits that “there are no procedures in place that would allow the Secretary to consider… a request” to take Alaska lands into trust. Def.’ Supplemental Br. [Dkt. #101] at 11, and suggests that he would only consider such a request if regulations were “amended or promulgated to provide a process and decisional criteria for the exercise of the discretion to acquire land in trust for Alaska Natives,” id. at 10.

The court “owe[s] the Secretary ‘substantial deference'” for his interpretation of his own regulation. Tozzi v. U.S. Dep’t of Health & Human Servs., 271 F.3d 301, 311 (D.C. Cir. 2001) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)). To adopt his reading, the court “need not find that the agency’s construction is the only possible one, or even the one that the court would have adopted in the first instance.” Id. (quoting Wyo. Outdoor Council v. United States Forest Serv., 165 F.3d 43, 52 (D.C. Cir. 1999)); see also Thomas Jefferson, 512 U.S. at 512 (“Our task is not to decide which among several competing interpretations best serves the regulatory purpose.”). Instead, the court must “give the agency’s interpretation ‘controlling weight,'” Tozzi, 271 F.3d at 311 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)), “unless an ‘alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation,'” id. (quoting Consolidation Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 136 F.3d 819, 822 (D.C. Cir. 1998)) (internal quotation marks and citation omitted in original); accord Thomas Jefferson, 512 U.S. at 512, Gardebring v. Jenkins, 485 U.S. 415, 430 (1988).

The mere fact that “the Secretary’s interpretation” of a regulation is first announced “in the form of a legal brief… does not… make it unworthy of deference.” Auer v. Robbins, 519 U.S. 452, 462 (1997); see also Nat’l Wildlife Fed’n v. Browner, 127 F.3d 1126, 1129 (D.C. Cir. 1997) (“The mere fact that any agency offers its interpretation in the course of litigation does not automatically preclude deference to the agency.”). As the D.C. Circuit has explained, “[t]here are at least three preconditions for applying this so-called Auer deference.” Drake v. FAA, 291 F.3d 59, 68 (D.C. Cir. 2002). One precondition is that “there must be ‘no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.'” Id. (quoting Auer, 519 U.S. at 462); see also Bigelow v. Dep’t of Defense, 217 F.3d 875, 878 (D.C. Cir. 2000). “In conducting this inquiry,” a court must “consider whether the agency has ‘ever adopted a different interpretation of the regulation or contradicted its [current] position….'” Drake, 291 F.3d at 69 (quoting Nat’l Wildlife, 127 F.3d at 1129).

When the Secretary promulgated 25 C.F.R. § 151.1, he explained that the Alaska exception had been added to the regulation after it was “pointed out that the Alaska Native Claims Settlement Act does not contemplate the further acquisition of land in trust status, or the holding of land in such status, in the State of Alaska, with the exception of acquisitions for the Metlakatla Indian Community.” Land Acquisition, 45 Fed. Reg. 62,034. Since that time, he has said that “the current… regulations bar the acquisition of trust title in land in Alaska, unless an application for such acquisition is presented by the Metlakatla Indian Community or one of its members.” Acquisition of Title to Land in Trust, 64 Fed. Reg. at 17,577; see also Acquisition of Title to Land in Trust, 66 Fed. Reg. at 3,454 (discussing “the bar in the existing regulations to the acquisition of trust title in land in Alaska (other than for the Metlakatla Indian Community of its members)”). He has also referred to this bar as a “prohibition.” Acquisition of Title to Land in Trust, 66 Fed. Reg. at 3,454 (discussing “the prohibition in the existing regulations on taking Alaska lands into trust (other than Metlakatla)”); see also Land Acquisitions, 60 Fed. Reg. at 1,956 (referring to 25 C.F.R. § 151.1 as “the portion of the existing regulation that prohibits the acquisition of land in trust status in the State of Alaska for Alaska Native villages other than Metlakatla”). Finally, when the Secretary promulgated the revised (and since withdrawn) land-into-trust regulations, he amended the Alaska exception to read, “We will not accept title to land in trust in the state of Alaska, except for the Metlakatla Indian Community of the Annette Island reserve of Alaska or its members.” Acquisition of Title to Land in Trust, 66 Fed. Reg. at 3,460 (to be codified at 25 C.F.R. § 151.3(c)). In proposing the revision, he explained that this new language “would make no change in the current regulations.” Acquisition of Title to Land in Trust, 64 Fed. Reg. at 17,578.

The position that the Secretary has taken here – that the Alaska exception does not prohibit him from taking Alaska land into trust outside of Metlakatla – is contradicted both by evidence of his understanding at the time that the exception was promulgated, and by his own repeated descriptions of the exception as a “bar” or a “prohibition.” In these circumstances, the court cannot defer to the Secretary’s interpretation. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to what appears to be nothing more than an agency’s convenient litigation position would be entirely inappropriate.”).

The Alaska exception represents the Secretary’s considered judgment that he will not take Alaska land into trust outside of Metlakatla, as his repeated characterizations and the withdrawn regulation make clear. Whether this judgment can be accurately described as a “bar” is, finally, beside the point. The question is whether it is legally valid.

ii. Legality of 25 C.F.R. § 151.1

The plaintiffs argue that the Alaska exception is “not in accordance with law,” 5 U.S.C. § 706(2)(A), because it violates 25 U.S.C. § 476(g), which provides:

Any regulation or administrative decision or determination of a department or agency of the United States that is in existence or effect on May 31, 1994, and that classifies, enhances, or diminishes the privileges and immunities available to a federally recognized Indian tribe relative to the privileges and immunities available to other federally recognized tribes by virtue of their status as Indian tribes shall have no force or effect.

25 U.S.C. § 476(g). The plaintiffs' argument is straightforward: the Alaska exception is a regulation that diminishes the privileges of non-Metlakatlan Alaska Natives relative to all other Indian tribes, by providing that the Secretary will not consider their petitions to have land taken into trust. It is therefore void by the plain text of 25 U.S.C. § 476(g).

The Secretary makes two attempts to counter this argument. First, he notes that 25 U.S.C. § 476(g) was enacted in response to congressional disapproval of the Secretary’s interpretation of Section 16 of the Indian Reorganization Act, which concerns tribal elections, and not in response to any concerns over Section 5, which provides the general grant of land-into-trust authority. See 140 Cong. Rec. 11,234 (1994) (statement of Sen. John McCain) (“The purpose of the amendment is to clarify that section 16 of the Indian Reorganization Act was not intended to authorize the Secretary of the Department of the Interior to create categories of federally recognized Indian tribes.”). That is true enough, but 25 U.S.C. § 476(g) plainly applies to “[a]ny regulation” that violates its prohibition. Congress commonly enacts statutes that address more than the precise concern that gave rise to them, and courts should “not resort to legislative history to cloud a statutory text that is clear.” Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994); accord Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 808 n.3 (1989) (“Legislative history is irrelevant to the interpretation of an unambiguous statute.”). Nothing in the text of 25 U.S.C. § 476(g) suggest that it is limited in the way that the Secretary suggests, and the court will not read such a limitation into the statute.

The Secretary’s second argument is that 25 U.S.C. § 476(g) only prohibits discrimination between “similarly situated” tribes, and, Alaska Natives are not “similarly situated” to any other tribes because of the Claims Settlement Act. But “similarly situated” appears nowhere in the statutory text, and the Secretary cannot invent a limitation on the statute any more than he could import one from the public statements of individual legislators. “[W]here, as here, the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.'” United States v. Ron Pair Enterps., Inc. 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)); Hercules Inc. v. EPA, 938 F.2d 276, 281 (D.C. Cir. 1991) (same).

The Secretary does not deny that his regulation diminishes the privileges available to tribes of Alaska Natives (except for the Metlakatlans) relative to the “privileges… available to all other federally recognized tribes by virtue of their status as Indian tribes.” 25 U.S.C. § 476(g). Instead he asks the court to adopt limiting constructions that have no basis in the statutory text. But a law “is not susceptible to a limiting construction” when “its language is plain and its meaning unambiguous.” City of Houston v. Hill, 482 U.S. 451, 468 (1987). The Secretary offers no other arguments, and the challenged regulation shall therefore “have no force or effect.” 25 U.S.C. § 476(g).

The court will order briefing as to the scope of the remedy in this case: whether it is only the Alaska exception that is deprived of “force or effect,” or whether some larger portion of the land-into-trust regulation must fall.

IV. CONCLUSION

For the reasons set out above, the plaintiffs’ motions for summary judgment will be granted, and the State’s and the Secretary’s motions will be denied. An order for additional briefing on the question of the appropriate remedy will follow.

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

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