Standing United with Federally Recognized Tribes in Alaska to Protect Tribal Sovereignty;

Yellen, et al. v. Confederated Tribes of the Chehalis Reservation, et al.

May 6, 2021

Dear Tribal Leader,

The undersigned sixteen tribes write this letter to ask that all of Indian Country stand together to defend tribal sovereignty in Alaska and the significance of federal recognition. For the past year, the United States and roughly 200 state-chartered, for-profit Alaska Native Corporations (ANCs) have attacked the sovereignty of all federally recognized Indian Tribes, including the 229 Tribes in Alaska, by seeking to place ANCs on an equal footing with Tribes.

If the federal government is permitted to make this radical change in federal Indian law and policy, it will result in immeasurable harm to all of Indian Country.

When the Treasury Department decided in April 2020 to treat ANCs as having the same legal status as federally recognized Tribes for purposes of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, we were alarmed and dismayed that the federal government would seek to pay to ANCs emergency COVID-19 relief funds that Congress intended to support sovereign tribal governments.

The sixteen Tribes, hailing from all corners of Indian Country, refused to accept the decision and sued Treasury. After winning a preliminary injunction at the district court, the Tribes prevailed before the D.C. Circuit Court of Appeals, which agreed that ANCs are not eligible for CARES Act payments. The case was argued before the Supreme Court on April 19, 2021, and is now awaiting a decision.

The sixteen Tribes want to make 100% clear what this case is about. This case was never about money, although all tribal governments desperately need the money to protect our tribal citizens from the pandemic and to rebuild our communities in its wake.

Instead, this case is about tribal sovereignty and our government-to-government relationship with the United States.

As everyone in Indian Country knows, only when a Tribe is federally recognized does the Tribe and its citizens become fully eligible for the programs and services provided by the government to Indians.

For many of us, the fight for federal recognition—and the fight against the termination of our governments—has been waged over many decades, if not centuries. That is what is at stake in the CARES Act case: what it means to be a federally recognized Indian Tribe.

No ANC appears on the Secretary of the Interior’s annual list of recognized Tribes because ANCs are not Indian Tribes, and federal agencies have no basis to treat ANCs as if they are.

Every day, the 229 Tribes in Alaska fight to preserve Alaska Native tribal sovereignty.

When Congress passed the Alaska Native Claims Settlement Act (ANCSA) in 1971, it created ANCs—for-profit corporations chartered under Alaska law—and gave them title to 44 million acres of the Tribes’ ancestral lands and hundreds of millions of dollars to settle the Tribes’ land claims.

But the ANCs are not governments. Indeed, it is Alaska’s Tribes that remain the seats of sovereignty. It is Alaska’s Tribes that have responsibility to protect the well-being of their citizens and community members. It is Alaska’s 229 Tribes and their tribally-controlled tribal consortia and Tribal Health Organizations that deliver healthcare and social services to Alaska Natives across the state.

ANCSA has been used by those who would diminish Alaska Tribes to argue that “Alaska is different,” and that Alaska Tribes are somehow less sovereign than their Lower 48 counterparts, or are somehow dependent on or subservient to ANCs. This is false.

Yet this narrative, coupled with a historically hostile state government, has forced Alaska Tribes to fight against what can only be described as a slow termination. The ANCs’ most recent efforts to equate themselves with Tribes, or to assert that they are part of a “tribal ecosystem,” is an attempt to use their resources and political influence to elevate their status at the expense of Alaska Tribes.

If ANCs were elevated to the status of Tribes, the ramifications for Alaska Tribes will be dire. ANCs would have the right to direct the federal government to enter into contracts with them for all manner of programs—from health care to education, infrastructure, and social services—rather than maintaining that decision-making authority with the sovereign Tribes.

This is why this case is so important, and why all of Indian Country must stand together to lift up the Tribes in Alaska and defend their sovereignty and welfare. The six Alaska Tribes that are parties to the CARES Act litigation are represented by legal counsel—Kanji & Katzen, P.L.L.C. (K&K) and the Native American Rights Fund (NARF)—who have fought tirelessly to achieve these goals.

These firms were joined by a dedicated and talented group of in-house attorneys and private law firms representing the other Tribes. The K&K and NARF lawyers worked around the clock on many occasions and left no stone unturned in their efforts to present the strongest case possible at the district court, the court of appeals, and finally the Supreme Court. Their singular focus was always on the task of advancing tribal interests, and we know their commitment to that cause will never waver.

The sixteen Tribes and their counsel took up the CARES Act fight on behalf of all of Indian Country. Many ANCs are billion-dollar businesses whose shareholders include non-Indians. If the federal government is allowed to place ANCs on an equal footing with federally recognized Tribes, the consequences will extend beyond the CARES Act and be devastating for all tribal governments.

Because over 200 federal laws employ an identical or nearly identical definition of “Indian tribe,” ANCs would be able to compete with federally recognized Tribes for scores of already-underfunded federal programs and services and to potentially exercise untold powers reserved for federally recognized Tribes.

No matter what the outcome of the case before the Supreme Court, we ask that you stand unified with us in support of tribal sovereignty, the sanctity of federal recognition, and the 229 Tribes in Alaska. We must send a powerful message to the federal government that ANCs cannot be allowed to enjoy the same legal status as federally recognized tribal governments.

Akiak Native Community, Aleut Community of St. Paul Island, Arctic Village Council, Asa’carsarmiut Tribe, Cheyenne River Sioux Tribe, Confederated Tribes of the Chehalis Reservation, Elk Valley Rancheria California, Houlton Band of Maliseet Indians, Navajo Nation, Native Village of Venetie Tribal Government, Nondalton Tribal Council, Pueblo of Picuris

Quinault Indian Nation, Rosebud Sioux Tribe, San Carlos Apache Tribe, Tulalip Tribes

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