[00:00:02] Speaker 02:
Base number 20-5204 et al, Confederated Tribes of the Jehovah's Reservation et al, UT Tribe of the Uinta and Orie Indian Reservation, 20-01070 at balance versus Stephen T. Mnuchin in his official capacity as Secretary of the U.S.

[00:00:19] Speaker 02:
Department of the Treasury et al, Mr. Kanji for the at balance, Mr. Rasmussen for the at balance, Mr. Jed for the at police, Mr. Clement for the interview.

[00:00:31] Speaker 00:
Mr. Kanji.

[00:00:34] Speaker 05:
Thank you, Judge Henderson, and may it please the court.

[00:00:37] Speaker 05:
I would like to make three points.

[00:00:38] Speaker 00:
Before you begin, let me just say the three of us have caucused.

[00:00:42] Speaker 00:
You have just a short time to argue.

[00:00:44] Speaker 00:
Could you refer to this Indian Self-Determination and Education Assistance Act as ISDIA?

[00:00:53] Speaker 05:
Yes, Your Honor, I will do that.

[00:00:55] Speaker 05:
And thank you, and may it please the court.

[00:00:57] Speaker 05:
I would like to make three points about the Indian tribe issue.

[00:01:01] Speaker 05:
First, under a natural reading of the Indian tribe definition, the eligibility clause squarely applies to the native corporations.

[00:01:10] Speaker 05:
Second, the legislative history and the rule against surplusage cannot and do not undermine that natural reading.

[00:01:18] Speaker 05:
And third, there is no uniform, countertextual agency interpretation that Congress could have been aware of, let alone sought to ratify in enacting the CARES Act.

[00:01:31] Speaker 05:
And adhering to the statutory text will not upend decades of statutory, I'm sorry, of agency practice.

[00:01:39] Speaker 05:
Turning first to the text, which is where the analysis

[00:01:42] Speaker 04:
We do that to country.

[00:01:43] Speaker 04:
Can I ask you just a quick procedural question.

[00:01:45] Speaker 04:
My understanding is that the district courts stay in this case expires on September 15 Unless there's a subsequent motion.

[00:01:55] Speaker 04:
Have you all moved to have that extended until the end of the month or our decision or something like that.

[00:02:02] Speaker 04:
Or is it

[00:02:04] Speaker 05:
We have not so moved yet, Your Honor.

[00:02:07] Speaker 05:
We thought we would wait until after these proceedings.

[00:02:09] Speaker 05:
The district court did appear to leave it open to this court to continue the stay if it so desired.

[00:02:15] Speaker 05:
So we thought we would sort of take the lead of this court.

[00:02:18] Speaker 05:
If there is an indication that we should move the district court, we will certainly do so, and obviously do so expeditiously.

[00:02:26] Speaker 04:
OK, thank you.

[00:02:28] Speaker 05:
So turning first to the text, which I think is where the analysis should begin and end, the Indian tribe definition consists of a series of parallel nouns with three, the villages and the two sets of corporations listed as an illustrative subset.

[00:02:47] Speaker 05:
the ANCs would have you stop there, but that would be a failure to read on.

[00:02:52] Speaker 05:
Immediately following the ANCs comes the eligibility clause.

[00:02:57] Speaker 05:
In ordinary English, that clause would be understood to modify all the parallel nouns, the entities that come

[00:03:05] Speaker 05:
before it.

[00:03:07] Speaker 05:
The other option of sufficient textual clues existed would be for it to modify only the immediate antecedent, which would still sweep in the ANCs.

[00:03:17] Speaker 06:
The government, however— No doubt you're right about that as a matter of grammar, but suppose it were perfectly clear at the time

[00:03:31] Speaker 06:
ISDA was enacted that no ANC could ever be recognized as an Indian tribe.

[00:03:44] Speaker 06:
Would you still take the position that the ordering of nouns

[00:03:51] Speaker 06:
prevails over the, what in my hypothetical anyway would be a completely inexplicable insertion of ANCs into this list of nouns.

[00:04:04] Speaker 05:
So your honor, Judge Katz, accepting the premise for a minute, which of course we don't, but accepting the premise, yes, I think the Congress's English would still apply and would still be worthy of being honored.

[00:04:18] Speaker 05:
And I think it's worth noting a few things in this regard.

[00:04:23] Speaker 05:
Subsequent practice, subsequent congressional practice fully confirms this.

[00:04:27] Speaker 06:
Congress uses the- Let's talk about the text before we get to-

[00:04:32] Speaker 06:
ratification.

[00:04:33] Speaker 06:
I mean, that seems awfully odd.

[00:04:37] Speaker 06:
Supposed to give effect to every part of a statute if we can.

[00:04:43] Speaker 06:
And that's a pretty striking insertion into the statute.

[00:04:52] Speaker 06:
It is its own clause, including any native village or regional corporation established by the ANSCA.

[00:05:01] Speaker 06:
you would just read all of that right out.

[00:05:06] Speaker 05:
Well, no, we certainly wouldn't read it out, Your Honor.

[00:05:09] Speaker 05:
I think as we understand the statutory phrasing, Congress allowed for the possibility that any of those entities might qualify as tribes, any of the listed entities, so long as they satisfied the eligibility clause as a historic.

[00:05:25] Speaker 06:
Which is surplusage or a fool's errand or whatever word you want to use if there's no possibility that

[00:05:36] Speaker 06:
the corporations could at the time maybe have been recognized as an Indian tribe.

[00:05:45] Speaker 05:
So first, I want to make sure I understand the premise.

[00:05:49] Speaker 05:
If the premise is that Congress understood at the time that ANCs could never satisfy the clause,

[00:05:56] Speaker 05:
That's a historical premise.

[00:06:00] Speaker 05:
And I want to make sure I understand whether the premise is static or dynamic.

[00:06:05] Speaker 05:
One thing about the eligibility phrasing is it allows for changes in status over time.

[00:06:11] Speaker 05:
Again, I'm just accepting the premise, may have understood at the time that ANCs didn't satisfy the clause, but to fulfill your premise would also have had to understood that they could never satisfy the eligibility clause, whereas the phrasing allows for changes over time.

[00:06:30] Speaker 05:
And indeed, all those entities have had changes in status over time.

[00:06:35] Speaker 05:
As a historical fact, as we've said, Congress

[00:06:38] Speaker 05:
in 1975 would have had no reason to understand that ANCs absolutely could not satisfy the eligibility clause.

[00:06:46] Speaker 05:
There was a tremendous amount of historical flux at the time.

[00:06:49] Speaker 05:
I think the Cincinnati Solicitor opinion underscores that.

[00:06:53] Speaker 05:
And another historical fact, Judge Katz, is that I think, you know, bears mention the textual factor.

[00:07:00] Speaker 05:
is it would have been passing strange for Congress to have singled out ANCs as the only entities which were not subject to the eligibility clause, because ANCSA itself provided, the original form of ANCSA provided, that within 20 years, all restrictions on ANCSA stock would expire.

[00:07:22] Speaker 05:
Originally, they were pledged to Natives, but that restriction on alienation would have been totally lifted within 20 years.

[00:07:29] Speaker 05:
So under the government and the ANC view, the only entities that would not be subject to the dynamic force of the eligibility clause over time would be the very entities that 20 years hence may have become fully non-native controlled and owned corporations.

[00:07:46] Speaker 05:
Congress since I should say 1990 extended that restriction against alienation but in 1975 under Section seven of angst that was the state of affairs.

[00:07:57] Speaker 05:
So in terms of premises and historical understandings.

[00:08:00] Speaker 05:
for those to be the one entity in an Indian Self-Determination Act that were not subject to the force of the eligibility clause would have, in your terminology, would have defied sense.

[00:08:13] Speaker 05:
I'd like to make another point, textual point, in response to your question, which is to look

[00:08:18] Speaker 05:
at the language of the CARES Act itself, because there have been a lot of hypotheticals thrown around in the briefing.

[00:08:25] Speaker 05:
But Congress's actual words, I think, squarely confirm our position in the case.

[00:08:31] Speaker 05:
If one looks at the definition of a local unit of government, which follows immediately after the Indian tribe definition, this is on

[00:08:39] Speaker 05:
Page eight, appendix four of our opening brief.

[00:08:43] Speaker 05:
Congress defined a unit of local government to mean a county, municipality, town, township, village, parish, borough, or other unit of general government with a population that exceeds 500,000 people.

[00:08:58] Speaker 05:
So we have a qualifying clause at the end.

[00:09:01] Speaker 05:
Let's just take parishes as one example.

[00:09:05] Speaker 05:
Parishes are the Louisiana equivalent of a county.

[00:09:08] Speaker 05:
They're defined as such under Louisiana law.

[00:09:12] Speaker 05:
We check there is no parish in Louisiana or in the country that has a population exceeding 500,000 people.

[00:09:21] Speaker 05:
In I think ordinary understanding accepted principles of statutory interpretation,

[00:09:26] Speaker 05:
The result of that is that no parishes qualify for Title V funding.

[00:09:32] Speaker 05:
That's the force of the qualifying clause there.

[00:09:35] Speaker 05:
Under the ANC and government interpretation, all parishes should get Title V funding because by definition right now, none of them meet the eligibility qualification there.

[00:09:49] Speaker 05:
We think that that is not the way that statutory interpretation would normally proceed, that Congress has made very clear there that, and I think this is a normal matter of statutory drafting, that it can draft a broad, expansive list of entities with the understanding that a qualifying clause at the end can then cabin the appropriate universe of eligible statutory participants.

[00:10:17] Speaker 02:
Council is out of time.

[00:10:19] Speaker 04:
If there's some, first of all, in the surplusage thing, I take it from your briefing.

[00:10:25] Speaker 04:
I just want to confirm that there's no dispute that within those two commas, the phrase Alaskan native village is subject to the eligibility clause.

[00:10:35] Speaker 05:
That is the government's position, and it's certainly our position, Your Honor.

[00:10:39] Speaker 04:
Are there any Alaska native villages, I guess with a little n, maybe, that have not been recognized?

[00:10:48] Speaker 04:
Let's say even in modern times, don't show up on a list act.

[00:10:51] Speaker 04:
Are there any that wouldn't meet the eligibility clause so that the eligibility clause has some work to do?

[00:10:57] Speaker 05:
Yes, yes, Your Honor, there absolutely are.

[00:10:59] Speaker 05:
So, and the the Sansanetti and Solister opinion lays this out well.

[00:11:04] Speaker 05:
ANCSA listed a universe of possible villages, but then there were eligibility flights fights that stretched into the late 1980s.

[00:11:15] Speaker 05:
And the Interior Department deemed, I think, at least 15 or 20 villages to be non eligible.

[00:11:22] Speaker 05:
So that's, I think, part of the reason why the government understands that the eligibility clause has to apply.

[00:11:27] Speaker 05:
to the villages.

[00:11:28] Speaker 05:
Otherwise, you would have entities qualifying for all manner of statutory benefits who, in fact, the government has deemed to be non-native villages.

[00:11:39] Speaker 05:
The problem with the governance position, of course, is that it makes grammatical hash out of the definition by saying that the eligibility clause applies to the... I'm sorry.

[00:11:49] Speaker 04:
No, no, I understand that argument from your brief.

[00:11:52] Speaker 04:
My other question, though, is I'm a little confused

[00:11:56] Speaker 04:
by the assortment of parties here, if you were to win.

[00:12:03] Speaker 04:
So the money that's now being held wouldn't go to ANCs.

[00:12:10] Speaker 04:
Would it go to Alaska Native villages?

[00:12:13] Speaker 04:
Would it stay in Alaska through some form or another?

[00:12:16] Speaker 04:
Or would it get dispersed across the United States?

[00:12:20] Speaker 04:
Because it's already sort of to be designated for Alaska in this sense.

[00:12:25] Speaker 04:
that's targeted for ANCs right now.

[00:12:28] Speaker 05:
Yeah, the candid answer to that question, Your Honors, I don't know, because Treasury's allocation formula is a black box to those of us on the outside.

[00:12:37] Speaker 05:
So we don't know how Treasury would end up allocating those monies.

[00:12:42] Speaker 05:
The plaintiffs here are an assortment of tribes in the lower 48 and Alaska Native villages.

[00:12:48] Speaker 05:
And the concern here I should underscore

[00:12:51] Speaker 05:
is not only the money, which is incredibly important for the governmental purposes for which it was intended, but also the principle here, the functioning not only of ISDIA, but of many statutes that have followed in its stead, because ISDIA was meant to buttress, support, foster tribal self-determination.

[00:13:14] Speaker 05:
And what it did, the principal mechanism for his deal was to say if an Indian tribe passes a resolution saying to the federal government, hey, we want now to administer programs that you in your paternalistic way used to administer.

[00:13:27] Speaker 05:
We either want to administer them ourselves or we want to designate a tribal organization to administer them.

[00:13:33] Speaker 05:
We're passing this resolution and directing you to do that.

[00:13:36] Speaker 05:
The tribes, the repository of

[00:13:38] Speaker 05:
decision-making, under the view that's been proffered here by the government and the ANCs, the ANCs could fulfill that role for all manner of contracting.

[00:13:48] Speaker 05:
They could say, hey, we want contracts to go X, Y, or Z. The role that ANCs have actually played in this.

[00:13:55] Speaker 04:
Let me back up here, because I want to, I mean, you're stepping into an area where I have another question, and that is in the eligibility clause, unlike the LIST Act, it doesn't say recognized by the secretary.

[00:14:08] Speaker 04:
So could an Indian tribe be recognized by Congress under this statute?

[00:14:19] Speaker 05:
I'm sorry, Your Honor, under ISDIA?

[00:14:22] Speaker 04:
Under ISDIA, would that eligibility clause be satisfied if Congress passed a statute, like in the Frank's Landing Act case, that said, we hereby declare that X tribe is an Indian tribe

[00:14:36] Speaker 04:
that is entitled, is eligible for the special programs and services, da, da, da, da, da.

[00:14:41] Speaker 04:
And that would satisfy ISDIA, is that correct?

[00:14:44] Speaker 05:
That's correct, Your Honor.

[00:14:45] Speaker 05:
Congress certainly has that authority.

[00:14:48] Speaker 04:
Did ANSA, sorry, I'm using too many acronyms here, did the Alaska Native Claims Settlement Act do that in creating the ANCs and giving them the role that it gave them?

[00:15:01] Speaker 05:
No, it decidedly did not do that, your honor, and what's been rendered very clear since there was uncertainty after angst as to whether the villages had sovereign authority.

[00:15:11] Speaker 05:
There was a lot of debate over that for 15 to 20 years.

[00:15:14] Speaker 05:
The solicitor's opinion in 1993, the Cincinnati opinion, resolves that and says, yes, the villages certainly had governmental authority and the corporations

[00:15:24] Speaker 05:
It's been understood, I think, from the get-go.

[00:15:26] Speaker 05:
And that opinion, again, confirms this, that corporations do not have sovereign governmental powers.

[00:15:32] Speaker 05:
They do not enjoy a government-to-government relationship with the United States.

[00:15:37] Speaker 05:
The ANC's don't even make that claim.

[00:15:40] Speaker 05:
Hence, they are not recognized in that way.

[00:15:43] Speaker 04:
Well, I'm trying to understand what this eligibility clause is looking for, because as I read it, it sounds like

[00:15:50] Speaker 04:
the tribe has to be eligible, I say for, as in to receive the special programs and services provided by the US government.

[00:16:01] Speaker 04:
But then you reference, and there have been other arguments, that actually this clause is satisfied if an entity provides the programs that the government would otherwise.

[00:16:12] Speaker 04:
be providing?

[00:16:14] Speaker 04:
Is it that you have to be, is providing by contract or whatever the services that the government otherwise would be, say health services or educational services, is that sufficient to satisfy the eligibility clause or you do have to both, is providing it insufficient, you also have to, you and or your members have to be eligible to receive them if they were administered by the U.S.

[00:16:35] Speaker 04:
government?

[00:16:36] Speaker 05:
It's a term of art, your honor, it's been used for a long time in federal Indian law.

[00:16:41] Speaker 05:
And what it was historically understood to mean was that you had to be eligible to receive benefits and services from the United States, you know, by virtue of your status as Indians.

[00:16:51] Speaker 05:
And so then what Izdia said was, so if you are so eligible,

[00:16:55] Speaker 05:
by virtue of your status to receive benefits and services, then you can make this designation to say, hey, we actually now want to administer those programs, those services ourselves.

[00:17:06] Speaker 05:
We want to take them over.

[00:17:08] Speaker 05:
and we're passing this resolution directing the secretary.

[00:17:11] Speaker 05:
And your question goes to a very important point.

[00:17:14] Speaker 05:
The ANCs, a lot of the ANC briefing, including some of the amicus briefing, talks about how they provide services in Alaska.

[00:17:23] Speaker 05:
And we don't gainsay that the ANCs play

[00:17:26] Speaker 05:
important roles in doing that in Alaska.

[00:17:30] Speaker 05:
But they do that in the main because tribes, the villages, have designated them as tribal organizations to provide such services.

[00:17:41] Speaker 04:
There are some limited exceptions where Congress itself has... They do provide them some... You said in the main, maybe this is where you were going, they do, as I understand it, also provide them in areas where there is no

[00:17:53] Speaker 04:
tribal government to, or Native Alaskans, I'm going to use tribal for a shorthand here, even though it's Alaskan Natives.

[00:18:00] Speaker 04:
There is no tribal government or entity to sort of contact with them as an organization provided.

[00:18:08] Speaker 04:
Isn't that right?

[00:18:09] Speaker 05:
That's right, Your Honor, and that's a situation which has been expressly covered by

[00:18:16] Speaker 05:
subsequent separate congressional statute, the 1997 act, which covers that situation where you have like Anchorage, which this is why the ANC and US briefing focuses so much on the provision of healthcare in Anchorage, the Anchorage area, because there's a separate congressional statute that authorizes the ANCs to do that.

[00:18:36] Speaker 05:
That is an area where exactly as you say, there are not native villages with jurisdiction.

[00:18:42] Speaker 05:
This is just like the situation

[00:18:44] Speaker 05:
in the lower 48 states where we have a lot of urban areas, Seattle, Minneapolis, where there aren't tribes with jurisdiction and there are separate congressional authorizations for tribal organizations.

[00:18:57] Speaker 04:
Can you give me a site to that, you said 1997 statute?

[00:19:01] Speaker 05:
Yeah, that's cited, I think, at our reply brief at page 12.

[00:19:06] Speaker 05:
It's the 111 stat 1543, 1997.

[00:19:11] Speaker 05:
It's the statute that's discussed in the Ninth Circuit's Shalala case, which is 166, Fed 3rd, 986.

[00:19:19] Speaker 05:
And there's been a lot of discussion about that statute in the briefing, but I think the ultimate point about that statute is that Congress specifically authorized specific ANCs and their subcontractors to provide health services in the Anchorage area.

[00:19:38] Speaker 05:
One thing that, you know, one theme, common theme in the government briefing, the ANC briefing, the amicus briefing on their side is trying to create this picture that if you adhere to the statutory text here to what Judge Casas referred to as the grammatical reading, you would be upending

[00:19:56] Speaker 05:
you know, 45 years of agency practice, and I really want to stress that that is not the case, that the examples mentioned really fall into a few areas.

[00:20:06] Speaker 04:
Do you have any evidence that, what is your evidence that when, for example, prior to this 1997 statute, the Secretary authorized ANCs to provide services in areas where there was no, as I said, a tribal

[00:20:24] Speaker 04:
government that they were doing it, they were treating the ANCs as a tribal organization rather than an Indian tribe.

[00:20:30] Speaker 04:
How do we know?

[00:20:32] Speaker 05:
It's a little tricky because in some ways, on our side, we're asserting a negative.

[00:20:40] Speaker 05:
Here's what I can say.

[00:20:41] Speaker 05:
The district court asked the United States whether it could identify situations where the ANCs were acting as a tribe, where they were the ones authorizing the contracting.

[00:20:54] Speaker 05:
The government initially couldn't identify any situations.

[00:20:58] Speaker 05:
Ultimately, I think the only situations that the government or the ANCs have pointed to where the ANC is acting, and again, I want to be very clear, as the authorizing tribe, are really a handful of situations.

[00:21:12] Speaker 05:
The Anchorage, the pre-statutory Anchorage health care situation, and one or two other health care.

[00:21:22] Speaker 03:
May have been for a couple decades, right?

[00:21:24] Speaker 05:
I'm sorry.

[00:21:25] Speaker 03:
It may have been for a couple of decades, right?

[00:21:27] Speaker 05:
The practice in Anchorage.

[00:21:30] Speaker 05:
I don't recall exactly when it started, Your Honor, but it was very limited.

[00:21:34] Speaker 05:
We're talking about one regional corporation and one or two subcontractors with a lot of controversy.

[00:21:43] Speaker 05:
The reason why the Shalala case and the statute came about

[00:21:46] Speaker 05:
was because there was controversy over whether the villages themselves had to provide the authorizing resolutions.

[00:21:54] Speaker 05:
The government's position was?

[00:21:55] Speaker 04:
That was mooted by the statute and what the Ninth Circuit's.

[00:21:56] Speaker 05:
It was mooted by the statute and what the Ninth Circuit's.

[00:21:57] Speaker 05:
It was mooted by the statute and what the Ninth Circuit's.

[00:21:58] Speaker 05:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:00] Speaker 04:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:01] Speaker 05:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:03] Speaker 05:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:04] Speaker 04:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:06] Speaker 04:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:07] Speaker 04:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:08] Speaker 04:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:10] Speaker 04:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:11] Speaker 04:
It was mooted by the statute and what the Ninth Circuit's.

[00:22:12] Speaker 04:
It was mooted by

[00:22:13] Speaker 05:
Right, where there were no villages present in that area.

[00:22:17] Speaker 04:
That's right, like the solar memo, not as a tribal organization.

[00:22:23] Speaker 05:
Right, so, and here's the important point about this.

[00:22:25] Speaker 05:
So you have the solar memorandum in 1976, which says what it says.

[00:22:30] Speaker 05:
But then in 1981, and this is glossed over, comes the IHS guidance, which DOI then subscribes to.

[00:22:39] Speaker 05:
What IHS says is very clear that the villages are the primary contracting authority, because they are the repository of sovereignty in Alaska.

[00:22:51] Speaker 05:
And then they lay out a hierarchy where they say only where there is no village, no functioning village government, can the corporation step into the shoes and essentially act as the village government.

[00:23:07] Speaker 05:
What's happened since then is all

[00:23:10] Speaker 05:
federally recognized native villages in Alaska have functioning governance and have had it for decades now.

[00:23:15] Speaker 05:
So that's why as a matter of practice, to go to your question, the number of situations where you had contracts authorized by a corporation are extremely limited and now are ahistorical because the villages have functioning robust

[00:23:38] Speaker 05:
governments, they act as the contracting authority.

[00:23:41] Speaker 05:
So if one is talking about, you know, countertextual premises here, one wants to talk about, did Congress ratify some agency practice?

[00:23:54] Speaker 05:
There is no uniform countertextual agency practice that has stretched over these 45 years that Congress would have been aware of.

[00:24:03] Speaker 00:
All right, Mr. Kanji, I'm going to interrupt you because you're over your time and I have a

[00:24:07] Speaker 00:
One last question, and that is, what concerns me is the Alaska Natives, who I understand are not part of any tribe, and they get whatever services, help, assistance that they get from the ANCs.

[00:24:25] Speaker 00:
Now, you gave the example of the parishes.

[00:24:30] Speaker 00:
Numerically, there would be no parishes that would qualify for CARES Act assistance.

[00:24:37] Speaker 00:
Those people are also eligible for state assistance.

[00:24:42] Speaker 00:
And my question is, so they wouldn't be left without any assistance.

[00:24:46] Speaker 00:
My question is, does the state of Alaska or any other body, if we rule with you, provide the assistance, the emergency assistance that is going to every other Alaska native to these,

[00:25:04] Speaker 00:
natives that the ANCs provide the services to?

[00:25:12] Speaker 00:
Yes, Your Honor.

[00:25:14] Speaker 05:
No, they certainly will not be left out in the cold for three reasons, Your Honor.

[00:25:18] Speaker 05:
One, yes, the state of Alaska provides services to them.

[00:25:22] Speaker 05:
They certainly are Alaska citizens.

[00:25:25] Speaker 05:
Secondly, the ANCs, as I've said, in the urban areas have been authorized by separate

[00:25:30] Speaker 05:
congressional provision to provide services in these urban areas.

[00:25:36] Speaker 05:
And that really is absolutely no different than the situation for Indians in the lower 48 states, where actually over half of Indians in the lower 48 states live in urban areas and are provided for by these separate programs, not by the Indian tribes.

[00:25:54] Speaker 05:
And in that regard, it's worth noting that Title VI of the CARES Act, the immediately following title, is a direct towards healthcare provisions and includes a billion dollars in IHS funding, including $450 million for IHS funded programs like the ones that the

[00:26:14] Speaker 05:
ANCs are carrying out in the urban areas.

[00:26:17] Speaker 05:
So there are – nobody, of course, wants anyone left out in the cold, and that would not happen to Alaska Natives in the urban areas.

[00:26:27] Speaker 05:
or Alaska Natives in the villages.

[00:26:30] Speaker 05:
But it is critically important as a matter of law how the services and programs are provided for and that Congress's determination as to where sovereignty resides in the text is respected.

[00:26:43] Speaker 00:
All right.

[00:26:44] Speaker 00:
Thank you.

[00:26:45] Speaker 00:
We'll give you a couple minutes in reply.

[00:26:47] Speaker 00:
Mr. Rasmussen.

[00:26:53] Speaker 01:
Thank you, Your Honor.

[00:26:54] Speaker 01:
May it please the court, my name is Jeffrey Rasmussen.

[00:26:57] Speaker 01:
I am the attorney for the Ute tribe and have the honor to represent seven sovereign tribes in this case.

[00:27:08] Speaker 01:
The core point that we want to make is that the CARES Act is the statute that we're dealing with here today.

[00:27:18] Speaker 01:
And the CARES Act says, recognize governing body of an Indian tribe.

[00:27:22] Speaker 01:
Everybody agrees, the United States and the ANCs agree that the standard is, are they recognized governing bodies of an Indian tribe?

[00:27:32] Speaker 01:
They would like to parse that down into Indian tribe, read out recognized, and say they have governing bodies.

[00:27:41] Speaker 01:
But the phrase recognized governing body of an Indian tribe has always been understood to mean the recognized tribes in the United States.

[00:27:51] Speaker 01:
The United States in its brief in this case, in fact, admits that if this had said, oh, we're going to give this money to the recognized tribes, that would be the 574 tribes.

[00:28:03] Speaker 01:
But they come back and say, but when we put in the governing bodies in the middle of that phrase, suddenly that changes it, and that makes ANCs eligible.

[00:28:14] Speaker 01:
The case law that we discuss shows two things.

[00:28:18] Speaker 01:
First, that recognized governing body

[00:28:21] Speaker 01:
is a term of art.

[00:28:23] Speaker 01:
It is used to identify the recognized tribes.

[00:28:28] Speaker 01:
The tribes that the United States admits, if we use the phrase recognized tribe, we know what those are.

[00:28:34] Speaker 01:
Those are the 574 tribes.

[00:28:36] Speaker 01:
Those are not the ANCs.

[00:28:39] Speaker 01:
The recognized governing bodies of those tribes are the ones that are to get this money.

[00:28:44] Speaker 01:
Then the other part of it is, and we cite in our brief, a number of cases.

[00:28:51] Speaker 01:
On page two through four of our brief, all of these cases support that ANCs are not recognized governing bodies of tribes, every single one of them.

[00:29:03] Speaker 01:
Seldovia, Eagleson, Pearson, Barron, Ailman.

[00:29:09] Speaker 01:
And then at page 13 of our brief, we cite Upigivik.

[00:29:16] Speaker 01:
I probably messed that up.

[00:29:21] Speaker 01:
We also cite the two main treaties on Indian law, which also support our argument.

[00:29:28] Speaker 04:
Statutory language here talks about only eligible for special programs and services.

[00:29:36] Speaker 04:
And often when the federal government has talked about recognizing an Indian tribe in a sovereign capacity, it talks about not only just

[00:29:47] Speaker 04:
recognized as eligible for programs and services, but also for the immunities and privileges available to them as a sovereign.

[00:29:57] Speaker 04:
And that isn't the language Congress used here.

[00:30:02] Speaker 04:
It just focused on eligibility for services.

[00:30:09] Speaker 04:
This was post ANSA, Alaska Native Planned Settlement Act.

[00:30:14] Speaker 04:
And some of the unique nature of these ANCs there

[00:30:17] Speaker 04:
Is it not important that they're only talking here about services and not for that additional, you know, tribes are more than just getting recognized Indian tribes, as you're using that phrase, do much more than just get services and programs.

[00:30:30] Speaker 04:
They are conferred sort of privileges and sovereign status, which is not referenced here.

[00:30:36] Speaker 01:
Does that matter?

[00:30:36] Speaker 01:
No, that does not matter.

[00:30:38] Speaker 01:
The phrasing recognized governing body of an Indian tribe incorporates all those concepts that we have to deal with, whether the tribes are

[00:30:47] Speaker 01:
federally recognized for the programs and services.

[00:30:51] Speaker 01:
That's what recognized means, whether they're federally recognized for the programs and services uniquely available to Indians.

[00:30:58] Speaker 04:
And there are 570- I think what you do now, 20 years later after the LIST Act, but what evidence do you have that it had that meaning in 1975?

[00:31:12] Speaker 01:
Well, first of all, if the CARES Act wasn't adopted in 1975,

[00:31:16] Speaker 04:
No, it's incorporating a definition from 1975.

[00:31:18] Speaker 04:
So we're going, that doesn't, you're not suggesting that the CARES Act changed the definition of that, is it, right?

[00:31:29] Speaker 01:
We're not suggesting the CARES Act changed the definition of it.

[00:31:32] Speaker 04:
One thing in 1975 and a different thing in 2020, right?

[00:31:35] Speaker 04:
You're not suggesting that.

[00:31:37] Speaker 01:
No, we're not, right.

[00:31:38] Speaker 04:
Just talking about 1975.

[00:31:41] Speaker 01:
But the cares act uses the phrase and everybody agrees that the cares act uses says this money goes to the recognized governing bodies of Indian tribes and recognize a recognized tribe or a recognized governing body of a tribe.

[00:31:55] Speaker 01:
is the term of art.

[00:31:57] Speaker 04:
It's the same language in ISDIA.

[00:31:59] Speaker 04:
That's the problem.

[00:32:00] Speaker 04:
I'm not sure.

[00:32:00] Speaker 04:
I think your term of art is building on the List Act.

[00:32:03] Speaker 04:
I'm talking about what recognized as eligible for services meant in 1975, because that's what Congress wanted to govern the CARES Act distributions.

[00:32:13] Speaker 01:
And for those services, at that point in time, meant basically what we now think of as the recognized tribes, the federally recognized tribes.

[00:32:25] Speaker 04:
meaning in 1975.

[00:32:27] Speaker 04:
We know that's what it meant in 1975.

[00:32:35] Speaker 01:
Right.

[00:32:36] Speaker 01:
The phrasing, and I think everybody agrees that that final phrasing, that qualifying clause in that statute is referring to entities that are not ANCs, are not the corporation.

[00:32:52] Speaker 04:
Everybody, at least unless I'm misunderstanding the ANC's argument, is that they meet that clause.

[00:32:58] Speaker 01:
As I do at one point make that argument, yes, Your Honor.

[00:33:01] Speaker 04:
You can say everybody agrees.

[00:33:03] Speaker 04:
And I'm asking the question because I'm curious about the answer.

[00:33:06] Speaker 04:
So I'm not yet agreeing, so you can't say I agree yet.

[00:33:09] Speaker 04:
So tell me what the evidence was in 1975 that they had that meeting.

[00:33:14] Speaker 01:
The United States does not agree with the ANC's on that point.

[00:33:20] Speaker 01:
And the ANC's argument,

[00:33:21] Speaker 04:
um has been then i know you don't agree with other arguments made by the united states is saying the united states doesn't take that argument doesn't help you very much because you disagree with their position no we're saying from 1975 that's what it's meant that's what i would really be helpful to me what i'm saying is not that the united states doesn't make that argument the united states disagrees with that argument the appellees disagree on that point i i'm not i i understand

[00:33:51] Speaker 04:
I actually really understand, I believe, everyone's positions here in this case.

[00:33:54] Speaker 04:
I'm going to try the question one more time.

[00:33:57] Speaker 04:
What is your evidence, case law, statutory law, Department of Interior pronouncements, that in 1975, that phrasing there, eligible for services and programs, nothing more, meant recognized as sovereign government?

[00:34:16] Speaker 01:
I don't think we do have that.

[00:34:18] Speaker 01:
And I think that's part of what Mr. Kanji had pointed out, is that in 1975, there was still the possibility that ANCs would qualify under that provision.

[00:34:26] Speaker 01:
We now know that they don't.

[00:34:28] Speaker 01:
But in 1975, there was that uncertainty.

[00:34:31] Speaker 01:
There was that possibility that the inclusion of ANCs

[00:34:35] Speaker 04:
would bring in some trouble we don't all know that they don't now do it that's one of the issues in this case so that's why i'm trying to ask you what can you do to tell me just to support what is the rationale that doesn't jump ahead 20 years to tell me what congress meant when it put that eligibility clause in there had it used that phraseology before in legislation um i do not know if it had used that before in legislation what it was uh

[00:35:04] Speaker 01:
I think what you're getting at is the point that Mr. Kanji was making, that in 1975, we did not know that.

[00:35:13] Speaker 01:
We do know it now, because there are multiple cases now.

[00:35:16] Speaker 04:
Right.

[00:35:17] Speaker 04:
So I'm just talking about 1975.

[00:35:19] Speaker 04:
Has the Interior used that language before?

[00:35:22] Speaker 04:
Did it have a settled meeting at the Department of Interior at that point?

[00:35:26] Speaker 02:
Judge, his counsel is out of time.

[00:35:28] Speaker 04:
Indian law treatise or anything like that?

[00:35:31] Speaker 01:
No.

[00:35:31] Speaker 01:
They're largely recognized.

[00:35:34] Speaker 01:
tribe comes from the idea of the List Act or the tribes that have been recognized by Congress or that have been recognized by the United States in some other manner as Indian tribes.

[00:35:48] Speaker 01:
So there was the concept of recognized tribes at that point in time, but largely the references now are to the List Act itself.

[00:35:56] Speaker 01:
That's where we talk about the recognized tribes.

[00:36:02] Speaker 01:
at this point would say ANCs are not recognized tribes.

[00:36:05] Speaker 01:
I know that, again, I know that the ANCs, at one point, may just briefly make that assertion.

[00:36:14] Speaker 01:
But the case law is just overwhelming that ANCs are not.

[00:36:17] Speaker 04:
Well, let the ANCs tell us if they mean it or not.

[00:36:19] Speaker 04:
I had assumed they were serious about the argument.

[00:36:21] Speaker 04:
But they can answer that question, I think.

[00:36:26] Speaker 01:
So what we have, though, are a number of cases, as I was saying,

[00:36:30] Speaker 01:
that make this point that ANCs are not the recognized governing bodies of Indian tribes.

[00:36:36] Speaker 01:
In its response brief, the United States actually cited one of the cases that we had to leave on the cutting room floor in our brief, our opening brief, the Sack and Fox case, election board case, and the related case could face the grassroots, which are Eighth Circuit cases.

[00:36:53] Speaker 01:
And in both those, they're talking, the core point is

[00:36:57] Speaker 01:
What is a recognized governing body of an Indian tribe?

[00:36:59] Speaker 01:
That is the core of those cases.

[00:37:02] Speaker 01:
And there was a dispute about which of two entities was the recognized governing body of an Indian tribe.

[00:37:08] Speaker 01:
And the court said, we looked to the BIA to tell us that.

[00:37:12] Speaker 01:
Who is the recognized governing body of these Indian tribes?

[00:37:15] Speaker 01:
And we looked to the list that the United States publishes of those recognized governing bodies of Indian tribes.

[00:37:21] Speaker 01:
So again, as Indian law practitioners, we know when Congress uses the phrase,

[00:37:26] Speaker 01:
recognized tribe or recognized governing body of an Indian tribe, as it did in the CARES Act this year, we know what they're referring to.

[00:37:35] Speaker 01:
They're referring to those 574 tribes.

[00:37:38] Speaker 01:
And so they're referring to these sovereign tribes.

[00:37:43] Speaker 01:
And the final point I wanted to make was the general structure of the CARES Act.

[00:37:48] Speaker 01:
And we discussed that in our brief, and the other side comes back and says, just ignore it.

[00:37:53] Speaker 01:
But titles one and two,

[00:37:55] Speaker 01:
are for corporations.

[00:37:56] Speaker 01:
As Mr. Kanji noted, Title VI has some money for some types of medical services.

[00:38:02] Speaker 01:
Title V is all for sovereigns.

[00:38:05] Speaker 01:
Every single other entity there is a sovereign.

[00:38:08] Speaker 01:
And that is how Congress structured this act.

[00:38:12] Speaker 01:
And it used the phrase, recognize governing body of the tribe, to reference the sovereign tribes, just like all of the other sovereigns that are in Title V. Thank you.

[00:38:24] Speaker 00:
All right.

[00:38:25] Speaker 00:
Mr. Jed.

[00:38:28] Speaker 08:
Good morning, Your Honors.

[00:38:30] Speaker 08:
Adam Jed, or excuse me, good afternoon, Your Honors.

[00:38:32] Speaker 08:
Adam Jed, on behalf of the United States, may it please the court.

[00:38:35] Speaker 08:
Is DEA definition of Indian tribe expressly includes ANCs and uses ANC-specific language?

[00:38:42] Speaker 08:
Statutes are not self-defeating.

[00:38:44] Speaker 08:
A statute should not be read to include ANCs and then immediately to take them away.

[00:38:48] Speaker 04:
And by 20- Does the disability clause apply to Alaska Native villages?

[00:38:53] Speaker 08:
Yes, Your Honor, it does.

[00:38:56] Speaker 04:
I think since- I'm sorry.

[00:38:58] Speaker 04:
I mean, I get your put it in, take it out.

[00:39:03] Speaker 04:
But can you give me any grammatical rendition that explains why Alaska Native villages as defined in the ANCSA are subject to the eligibility clause, but the other things in that same list and in the same set of comma set off are not?

[00:39:22] Speaker 08:
Sure.

[00:39:23] Speaker 08:
So I guess there's kind of a set of grammatical answers to that.

[00:39:26] Speaker 08:
And then there's maybe a little bit of a historical answer to that.

[00:39:29] Speaker 08:
I mean, grammatically, I think we have two main points here.

[00:39:33] Speaker 08:
The one, of course, is just sometimes folks make grammatical errors.

[00:39:36] Speaker 08:
And there are obviously other kind of context dependent indicia of what a statute means.

[00:39:41] Speaker 08:
But we actually cite a couple of grammar guides where we point out that this issue of I think one grammar guide calls it an extra pose modifier is

[00:39:49] Speaker 08:
viewed by many as a common grammatical error, but is actually viewed by others as permissible.

[00:39:54] Speaker 08:
I think the idea, and this is kind of like the baseball example that we use in our brief, or the District of Columbia example that Mr. Clement uses in his brief, is when you have a list of items followed by a modifier.

[00:40:06] Speaker 04:
Statutes, by the way.

[00:40:08] Speaker 08:
I'm sorry, Desmond, I couldn't quite hear you there.

[00:40:10] Speaker 04:
Statutes, right?

[00:40:12] Speaker 04:
Your hypotheticals were not from statutes.

[00:40:14] Speaker 08:
Those are not from statutes.

[00:40:15] Speaker 08:
I think the best statutory example we have actually is if you look at the Hayes decision.

[00:40:19] Speaker 08:
That's a Supreme Court case from 2009 that we cite in our brief.

[00:40:23] Speaker 08:
There you had it wasn't just a list of individual words.

[00:40:26] Speaker 08:
It was a couple of different phrases in a statute.

[00:40:29] Speaker 08:
And the Supreme Court there ends up holding that the kind of modifier phrase at the end actually skips over something to apply to the earlier phrases in the statute.

[00:40:38] Speaker 04:
But do you have anything where it applies to, what you need to show me is that it applies to one thing in the newly added set off language.

[00:40:47] Speaker 04:
And remember Alaska Native Village is not only at the beginning, but it fits the end of that set off as well as defined in the Alaska Native Claims Settlement Act.

[00:40:57] Speaker 04:
The eligibility clause applies to Alaska Native villages, the beginning of that SEDAW clause, and the end of it, as defined in the Alaska Native Plains Settlement Act.

[00:41:07] Speaker 04:
But then it doesn't.

[00:41:08] Speaker 04:
Apparently, it pops off again for villages, regional or village corporations, as defined in the ANCSA.

[00:41:18] Speaker 04:
It's kind of established.

[00:41:20] Speaker 04:
Do you have one like that?

[00:41:21] Speaker 08:
I certainly don't have an example of a statute that's kind of structured in the identical way to this statute.

[00:41:27] Speaker 08:
I guess there are kind of two points I want to make in response to that.

[00:41:30] Speaker 08:
The first is that, just to push back on the premise a little bit, I think it's mistaken to understand that whole phrase as one newly added phrase.

[00:41:38] Speaker 08:
If you look at the drafting history, you first have the addition of the Alaska native villages.

[00:41:43] Speaker 08:
It makes perfect sense that the recognition clause applies to that.

[00:41:46] Speaker 08:
You then end up with the addition of the ANCs.

[00:41:49] Speaker 08:
I think it's six months later, done by the House.

[00:41:51] Speaker 04:
And at that point- Is there a native village as defined?

[00:41:55] Speaker 08:
I believe the initial language there was, yeah, Alaska Native Village as defined.

[00:42:00] Speaker 08:
And then six months later, you have the House adding in the ANCs as established pursuant to.

[00:42:05] Speaker 08:
So I think the reason we ended up with this structure is just that the House was kind of sticking with the initial structure when it made those amendments.

[00:42:12] Speaker 08:
And I should actually point out, as we spell out to some extent in our brief, the fact that they didn't just add ANCs, but also added that additional phrase, established pursuant to,

[00:42:22] Speaker 08:
means that this wasn't just some kind of misunderstanding about what ANCs are.

[00:42:27] Speaker 08:
It's not like they were just kind of throwing the kitchen sink at anything that could possibly exist in Alaska.

[00:42:32] Speaker 08:
This reflects an actual understanding of what ANCs are.

[00:42:35] Speaker 08:
They're special corporations that are established.

[00:42:38] Speaker 08:
It's pursuant to federal law.

[00:42:39] Speaker 08:
The federal law does not itself establish them.

[00:42:41] Speaker 08:
They're actually set up as Alaska corporations.

[00:42:44] Speaker 08:
So I think to the extent that Mr.- That's a very good argument.

[00:42:47] Speaker 04:
The Congress meant what it said in that edition.

[00:42:52] Speaker 04:
But what evidence do you have from 1975 that Congress knew that they did not meet the eligibility clause?

[00:43:05] Speaker 08:
Ah, so I think there are a couple of pieces of evidence I can point you to.

[00:43:08] Speaker 08:
The first is that this concept, I think, kind of recognition has been thrown around as a shorthand for it.

[00:43:15] Speaker 08:
Acknowledgement is another shorthand term that's often used for this.

[00:43:18] Speaker 08:
This concept is it's kind of a singular package.

[00:43:21] Speaker 08:
The idea is to use the language of some of the early 1800s Supreme Court cases.

[00:43:26] Speaker 08:
that Indian tribes are these kind of domestic dependent nations, that the federal government is recognizing or acknowledging their sovereign status, and that what comes with that is both forming a government-to-government relationship and also having this kind of obligation to provide special services to them.

[00:43:43] Speaker 08:
And we cite in our brief several cases going back to the early 1800s that make that point.

[00:43:48] Speaker 08:
The Coen's Treatise,

[00:43:50] Speaker 08:
makes that point.

[00:43:51] Speaker 08:
We cite the current Cohen's treatise, but if you actually look at the Confederated Tribes reply brief, they cite the 1942 edition of the Cohen's treatise.

[00:43:59] Speaker 08:
I think it also is sort of treating this as kind of a singular package.

[00:44:02] Speaker 08:
So, you know, look, obviously Indian law is a complicated area and I, you know, I can't

[00:44:07] Speaker 08:
kind of get into the minds of every member of Congress who drafted this.

[00:44:11] Speaker 08:
But in 1975, any kind of basic understanding of Indian law would have meant that this kind of package, this idea of recognizing something is eligible for these special programs and services is just- No, I get that.

[00:44:26] Speaker 04:
And I think even more relevantly, Congress itself had used this phrasing in statutes in termination acts like 16 times.

[00:44:34] Speaker 04:
I guess that's what the clause meant.

[00:44:36] Speaker 04:
What I was trying to ask, and I guess I wasn't clear, I apologize, is what evidence was there that ANCs didn't need it?

[00:44:44] Speaker 04:
Because it seems to me, and I think the Secretary of Interior even recognized in the 1970s that

[00:44:51] Speaker 04:
We're kind of a mess here on who fits within this and who is not within it.

[00:44:57] Speaker 04:
I think they referred to as a long standing and very difficult problem when they were promulgating regulations in 1978 to create their own their own list right the Secretary had lists long before the list act.

[00:45:10] Speaker 04:
And so it was rather a mess.

[00:45:14] Speaker 04:
And you even saw, I think in 1988, ANCs were put on that list.

[00:45:20] Speaker 04:
And then in 1993, this is all before Leszek, they were yanked back off.

[00:45:24] Speaker 04:
And so I'm not sure even the Secretary of Interior knew at the time whether ANCs, given their unique status, were meant to have

[00:45:34] Speaker 04:
have that meet that eligibility clause.

[00:45:38] Speaker 04:
Do you have something that shows me that Congress was aware when I put this clause in that the ANCs would not meet, that ANCs would not meet it.

[00:45:49] Speaker 04:
Not what the eligibility clause meant, but the ANCs would not meet it.

[00:45:52] Speaker 08:
So I think I can maybe give you a historical answer and then a textual answer.

[00:45:57] Speaker 08:
Just historically, I have to push back on the premise that whether ANCs could satisfy this is somehow complex.

[00:46:04] Speaker 08:
Again,

[00:46:04] Speaker 08:
If you look at the 1800s cases, now I'm not just talking about this being a single package, but they're talking about whether something is a domestic dependent nation, something that an ANC just intuitively couldn't satisfy.

[00:46:14] Speaker 08:
If you look at the 1942 treatise that Mr. Kanji cites for the first time in his reply brief, he quotes one element of recognition that was being considered.

[00:46:23] Speaker 08:
But if you look at the others, they're talking about a history of treaty relations, a history of political relations.

[00:46:29] Speaker 08:
being viewed as a tribe by other tribes.

[00:46:31] Speaker 08:
In fact, that treaty specifically says, sometimes the difficult questions are what to do with an association of Indians.

[00:46:37] Speaker 08:
And there, the treaty says what's critical is having political relations.

[00:46:40] Speaker 08:
And Judge Millett, in the 1978 preamble that you referred to, the preamble says that, historically, one of the most important factors has been a political relationship.

[00:46:50] Speaker 08:
In fact, we actually cite a study that was conducted in 1977 of what was then Interior's recent recognition

[00:46:57] Speaker 08:
criteria, which made clear that they were looking at whether there's a history of a political relationship.

[00:47:02] Speaker 08:
So a recently formed for-profit corporation under Alaska state law just couldn't have that kind of history.

[00:47:08] Speaker 08:
But Judge Mallette, I think there may also just be a textual answer to your question, which is, if you just parse the phrase to be eligible for these special programs and services provided to Indians because of their status as Indians, it's hard to understand how these corporations could be eligible.

[00:47:24] Speaker 08:
Because unlike every other listed

[00:47:27] Speaker 08:
entity in that list.

[00:47:28] Speaker 08:
A corporation isn't a group of people.

[00:47:30] Speaker 08:
A corporation is an artificial legal entity.

[00:47:33] Speaker 08:
And I know the plaintiffs have tried to argue, well, for at least 20 years, their shareholders were going to be Indians.

[00:47:39] Speaker 08:
But nonetheless, the corporation itself is an artificial legal entity, which presently was owned by Indians, might not always be owned by Indians, whereas everything else, like

[00:47:49] Speaker 08:
a tribe, although it may have some kind of legal status, is also just a group of Indians who are eligible to receive those kinds of services.

[00:47:56] Speaker 04:
I think you would agree as well that Congress itself could decide that someone meets this clause, whether or not they would have historically.

[00:48:05] Speaker 04:
They could meet this clause.

[00:48:06] Speaker 04:
And by the way, this clause does not have language about historic recognition or political status.

[00:48:14] Speaker 04:
It's just about eligible for programs and services.

[00:48:18] Speaker 04:
And given that they just said we set these things up in this statute, why wouldn't it have been perfectly sensible for an awful lot of the members of Congress who are voting for this, and presumably we're not as expert in Indian law as you all are, that those things that were just established in ANSA, like the, as analogously to the Alaska Native villages, are eligible.

[00:48:46] Speaker 04:
and programs, but not for the privileges and immunities of sovereign status.

[00:48:51] Speaker 08:
So I think maybe there are a couple of questions nested in there if I can kind of take those in order.

[00:48:55] Speaker 08:
As for whether Congress might have included ANCs kind of as a hedge in case Congress by statute would later recognize ANCs, I think there are two responses.

[00:49:05] Speaker 08:
The first is just although, of course, Congress can pass statutes that recognize tribes,

[00:49:09] Speaker 08:
There is still a kind of conception of what recognition counts as.

[00:49:14] Speaker 08:
And although I think the plaintiffs have suggested that on the margins there's some complexity or maybe some disagreement, the kind of line about exactly what is or could be recognized has never even come close to something like an ANC.

[00:49:27] Speaker 08:
But more importantly, Judge Millett, it would be

[00:49:28] Speaker 04:
And the Secretary of Interior included them in 1988 on its list of recognized tribes.

[00:49:36] Speaker 04:
That strikes me as pretty strong.

[00:49:39] Speaker 04:
And they were there for five years.

[00:49:42] Speaker 04:
Pretty strong evidence that this is not as crystal clear.

[00:49:45] Speaker 04:
Wasn't even to the Secretary of Interior in the 80s and early 90s, let alone to Congress in 1975 when it had just only four years into ANSA at that point.

[00:49:58] Speaker 08:
Well, I need to push back on that premise as well.

[00:50:00] Speaker 08:
I think if you look at the language of some of the subsequent Federal Register notices published by the Department of the Interior that we cite, they clarify this, which is when Congress included AMCs on some point on a list, essentially what they were trying to do is they were trying to say, look,

[00:50:16] Speaker 08:
there are things that count as Indian tribes for different purposes.

[00:50:19] Speaker 08:
And because ANCs are Indian tribes under ISDIA, mind you, a position that obviously the plaintiffs think is incorrect, that we want to make sure everyone knows that these are a set of entities who are eligible to contract with us.

[00:50:30] Speaker 08:
And as we point out, this is a definition of Indian tribe that has been incorporated into dozens of other statutes.

[00:50:36] Speaker 08:
And Interior then clarifies, I mean, if you look at some of the, I think the prefatory language in the 88 Federal Register notice that you're referring to,

[00:50:43] Speaker 08:
Certainly, the later federal register notices when ANC's come on and then go off, they start to make clear, look, we're including them for limited purposes, then they take them off.

[00:50:51] Speaker 08:
They say, we're taking them off because it was essentially causing the very kind of confusion that we're talking about now.

[00:50:56] Speaker 08:
But it's not a confusion as to whether ANC's could be recognized.

[00:50:59] Speaker 08:
I think Interior has been clear about that all along.

[00:51:02] Speaker 08:
And Judge Millett, just to add,

[00:51:04] Speaker 08:
It would be particularly strange for Congress to have included ANCs in case Congress later decided to recognize an ANC by statute.

[00:51:18] Speaker 08:
And, you know, again, I guess if they think they had already done that, then I mean that may just be a reason to agree with Mr Clements position, but One, I think that's not how recognition had typically been understood.

[00:51:30] Speaker 08:
And I mean, I just want to point out lots of congressional statutes are complex or deal with kind of niche areas of the law and you know that the general rule against reading a statute as a melody.

[00:51:40] Speaker 08:
I don't think it's only limited to statutes that are kind of intuitive or obvious or everyone would know what's going on in the statute.

[00:51:46] Speaker 08:
I think we generally understand that Congress knows what it's doing when it passes a law and we kind of read the tax based on the actual meaning of the tax without evidence that Congress may have known every little kind of jot and diddle and concept.

[00:51:59] Speaker 08:
But here, I do think that the plain tax, when it says to be eligible for services because of their status as Indians,

[00:52:06] Speaker 08:
I think that is a reference to the groups of Indians that precede them rather than to these artificial legal entities that at best in the subsequent years provide services but don't actually receive services.

[00:52:22] Speaker 00:
All right.

[00:52:22] Speaker 04:
I have a question so I don't have my colleagues have any others.

[00:52:25] Speaker 00:
All right, Judge Cassis.

[00:52:28] Speaker 00:
I'm fine.

[00:52:29] Speaker 00:
Okay, then we'll hear from Mr. Clement.

[00:52:36] Speaker 07:
Good afternoon, your honors, and may it please the court, Paul Clement for the interveners.

[00:52:42] Speaker 07:
Both sides to this dispute insist that the plain text decides the case.

[00:52:46] Speaker 07:
But the single clearest feature of the relevant text is Congress's express inclusion of regional and village corporations established pursuant to the Settlement Act in Izdia's definition of an Indian tribe.

[00:52:59] Speaker 07:
Now, as we've heard, the appellants contend that Congress negated that express inclusion of ANCs

[00:53:06] Speaker 07:
through the implications of the eligibility clause, which they read as both modifying ANCs and categorically excluding them from the definition.

[00:53:16] Speaker 07:
But I think there are two.

[00:53:18] Speaker 06:
But both sides are claiming text.

[00:53:22] Speaker 06:
But isn't the most fair way of thinking about this case is that there are competing canons of interpretation

[00:53:34] Speaker 06:
You have a very powerful one that we don't likely presume substantial inexplicable surplusage.

[00:53:46] Speaker 06:
And your friends on the other side have a pretty powerful one that we don't likely presume completely bizarre grammatical constructions where, you know, one clause modifies everything at the beginning and everything at the end, but not

[00:54:02] Speaker 06:
one or two things in the middle of a list.

[00:54:05] Speaker 06:
So which of those prevails and why?

[00:54:11] Speaker 07:
So two points, Judge Katz's.

[00:54:13] Speaker 07:
First, we offer at least one construction of the statute.

[00:54:17] Speaker 07:
We offer you two ways of reading the eligibility clause.

[00:54:21] Speaker 07:
And one way to read the eligibility clause completely avoids the grammatical problem.

[00:54:26] Speaker 07:
If you read the eligibility clause in its ordinary meaning, not as a term of art reference

[00:54:32] Speaker 07:
to recognitions as sovereign.

[00:54:34] Speaker 07:
But if you read it instead, and I think this idea was embedded in some of Judge Millett's questions, if you read it instead as simply a recognition or eligibility for special programs made available only to Native Americans, if that's the way you read it, which I think is its ordinary meaning, then you don't have to choose.

[00:54:54] Speaker 07:
There's no grammatical problem.

[00:54:56] Speaker 07:
You can read the ordinary meaning of the eligibility clause to modify ANCs,

[00:55:01] Speaker 07:
And ANCs readily satisfy it because they are eligible for special programs.

[00:55:07] Speaker 07:
They've been recognized as such from the federal government going all the way back to the Settlement Act itself in 1971.

[00:55:13] Speaker 07:
They haven't been recognized as sovereigns.

[00:55:17] Speaker 07:
But I don't see the word sovereign in that eligibility clause.

[00:55:21] Speaker 07:
I think, as Judge Millett may have alluded to, if you really want to go back and parse the statute that was issued in the Ninth Circuit France landing case, you see at least one clear example where Congress used an eligibility clause that looks exactly like Izdia's

[00:55:38] Speaker 07:
to talk about eligibility for special programs in the context of a tribe that expressly did not want to make a federally recognized tribe for sovereign purposes.

[00:55:49] Speaker 07:
So I have my second answer to you, but I do want to make clear that the virtue of our argument that read the eligibility clause in its ordinary meaning and see satisfy it, the virtue of that is there's no grammatical problem at all.

[00:56:04] Speaker 07:
Now.

[00:56:04] Speaker 00:
Can I just interrupt you and say

[00:56:06] Speaker 00:
Let me just interrupt and say, but doesn't that interpretation make the eligibility clause almost surplusage?

[00:56:14] Speaker 00:
I mean, what does it add then?

[00:56:16] Speaker 07:
What it adds then, Judge Henderson, is the exclusion of state-recognized tribes that are not federally recognized for any purpose.

[00:56:26] Speaker 07:
And I think with respect to a state recognized tribe or something other than the corporations that were expressly created by a 1971 act of Congress, the eligibility clause has worked to do.

[00:56:41] Speaker 07:
And that's really a good segue to my second part of the answer to Judge Katz's question, which is, so if you assume for a second that the eligibility clause doesn't have its ordinary meaning, but has a term of art meaning that's limited to sovereignty,

[00:56:56] Speaker 07:
then I think the way to read the clause is, sure, you start with the, you know, the series distribution canon, because I don't think anybody thinks it modifies only the last antecedent, but you only have it modify those terms that it usefully or meaningfully modifies.

[00:57:15] Speaker 07:
And if you get it to a point where it wouldn't just modify the term in a way that would allow you to get a subset of those nouns, but would completely oust the noun from the statute, even though Congress expressly included it, I don't think it violates any rule of grammar to say that the series modifier canon, which is itself, as Justice Scalia said in his treatise, one of the weakest, most contextually sort of influenced canons,

[00:57:44] Speaker 07:
If that gets you to a point where you're going to oust a phrase that Congress expressly put into the statute,

[00:57:51] Speaker 07:
then I think that clause yields.

[00:57:53] Speaker 07:
So the long answer to your question is if you have an application of the series modifier canon that allows the modifier to meaningfully modify other nouns, but it gets to particular nouns and would oust them from the statute creating a huge superfluity problem, then the superfluity canon or the anti-superfluity canon carries the day.

[00:58:17] Speaker 07:
And I think that basic statutory principle is profoundly buttressed by the legislative history.

[00:58:25] Speaker 07:
Not everybody looks at it, I realize.

[00:58:28] Speaker 07:
But the drafting history is very powerful here, because it has been alluded to.

[00:58:33] Speaker 07:
The eligibility clause was in the statute, modifying all the other nouns, including Alaska Native villages, at the point that Congress added the ANCs to the statute.

[00:58:46] Speaker 07:
And one other piece of contextual evidence, and again, not everybody likes to look at house reports, but there is a house report that buttresses, that accompanies the addition of that language.

[00:58:58] Speaker 07:
The government cites it on page 31 of its brief.

[00:59:02] Speaker 07:
And what the House thought it was doing, and it states it very matter of factly, is adding ANCs to the definition of an Indian Trial.

[00:59:11] Speaker 07:
It didn't say it was adding them to the definition on the off chance that at some future point in time, some subset of ANCs might satisfy the eligibility clause.

[00:59:23] Speaker 07:
Congress thought it was definitively adding the ANCs to the definition of an Indian tribe.

[00:59:28] Speaker 07:
So I think that's, Judge Millett has asked a number of questions asking, what was Congress thinking in 1975?

[00:59:34] Speaker 07:
I think that's, for those that look at it, pretty good evidence.

[00:59:39] Speaker 04:
The other thing I think Congress was fully cognizant of- The problem there is that Congress had to use this phrasing at least 16 times before, all of which were termination acts.

[00:59:52] Speaker 04:
which meant it was not just cutting off services, but was definitely cutting off the political dependent status relationship with the tribe.

[01:00:04] Speaker 04:
And so when Congress then picks that same language up and plunks it down here, it must, I think we should presume it had the same meaning.

[01:00:13] Speaker 04:
The only question is whether maybe Congress wasn't clear yet whether ANC's

[01:00:19] Speaker 04:
would have that status in light of the Alaska Native Plains Settlement Act or not.

[01:00:23] Speaker 04:
Not what that language meant, but what the ANC's status would be if someone were to apply that language to them.

[01:00:30] Speaker 07:
So Judge Millett, I'd like to beg to differ.

[01:00:33] Speaker 07:
And I really think there are two kinds of federal statutes.

[01:00:36] Speaker 07:
that address Indian tribes in some loose sense, and some of them that are about providing programs and services to Native Americans, and some of them are about more sovereign matters.

[01:00:50] Speaker 07:
And I don't think you can just mish and mash those together.

[01:00:53] Speaker 07:
I mean, the Alaska Federation of Natives Amicus Grieve, I think, is helpful in just sort of broadly kind of looking at those two baskets of statutes.

[01:01:01] Speaker 07:
And so even if this group.

[01:01:04] Speaker 04:
It's 1975.

[01:01:06] Speaker 04:
At the time Sanders put this in his DIA, none of those other statues, unless I'm wrong, please tell me.

[01:01:13] Speaker 04:
In my research, none of them existed.

[01:01:14] Speaker 04:
The only time this phraseology was used was for termination acts.

[01:01:18] Speaker 04:
And I think that's what I'm trying.

[01:01:21] Speaker 04:
I feel like I need to look at that and not look at the sort of, as you will say, mishmash of statutes that shows up afterwards.

[01:01:27] Speaker 04:
Sometimes they put them in and sometimes they list them separately and sometimes they say they're out.

[01:01:32] Speaker 07:
So two responses, Judge Millett.

[01:01:34] Speaker 07:
See, every one of the termination acts, by definition, is all about sovereignty.

[01:01:40] Speaker 04:
So a reference- Well, it's also about services.

[01:01:41] Speaker 04:
And it uses the services language.

[01:01:43] Speaker 04:
It doesn't use the sovereignty language.

[01:01:46] Speaker 07:
Yeah, but the whole point of the statute is, if it's a termination statute, it's terminated sovereignty.

[01:01:52] Speaker 04:
I know, but that was also terminating its obligation to provide services and programs to this dependent nation.

[01:02:00] Speaker 04:
It terminated both.

[01:02:03] Speaker 07:
Sure.

[01:02:03] Speaker 07:
And I suppose if you're going to terminate sovereignty, you terminate an obligation.

[01:02:09] Speaker 07:
I'll grant you that.

[01:02:12] Speaker 07:
But when you come and you have a statute that's about something else, which is not about sovereignty at all, and you see that reference.

[01:02:19] Speaker 04:
That begs the question of whether that clause is about sovereignty or not.

[01:02:23] Speaker 04:
And so you'd think if they were meant to use something that didn't include the political relationship, they would have used different phraseology.

[01:02:32] Speaker 07:
But here's the other part of my answer to you, Judge Mullit, is that the big thing, I think, with all due respect, your question misses, is the big event happens in 1971.

[01:02:43] Speaker 07:
Congress creates these new, novel, hybrid organizations that they know are going to play a very important role in delivering programs and services to Alaskan natives.

[01:02:56] Speaker 04:
Delivering, but not receiving.

[01:02:57] Speaker 04:
I mean, that's why I can imagine why Congress was confused here.

[01:03:03] Speaker 04:
As I read that language, it's talking about tribes being eligible for services and programs provided by the United States to them and their members, not just that they are eligible to sign a contract to deliver these services to Indians.

[01:03:21] Speaker 07:
But with respect, under ISDIA, and this is very important, under ISDIA, there really isn't any question that the ANC's

[01:03:30] Speaker 07:
are the tribe that receives the fund.

[01:03:33] Speaker 07:
They are the tribe that is eligible.

[01:03:36] Speaker 04:
This will be very helpful to me.

[01:03:38] Speaker 04:
Is there something you can point me to that says the ANC received, not just to administer it to someone else, but received for itself and its members, which I guess would be shareholders, programs or services from the US government?

[01:03:53] Speaker 04:
Does it get health care services?

[01:03:55] Speaker 04:
Does it get educational services?

[01:03:57] Speaker 04:
Does it get any kind of services from the U.S.

[01:04:01] Speaker 04:
government?

[01:04:02] Speaker 07:
What it gets is it, not somebody else designating it as a tribal organization, but the ANC as the tribe enters either a compact or a contract with the United States government to provide the services to Native Americans.

[01:04:19] Speaker 07:
Not to themselves, but to the Native Americans.

[01:04:22] Speaker 04:
They and their members don't receive them.

[01:04:26] Speaker 04:
their shareholders, wherever you want to call them, they don't actually receive these services from the US government.

[01:04:32] Speaker 07:
They receive the money, and then they provide the services.

[01:04:36] Speaker 04:
There's a big difference between being a contractor for the government to provide services to someone else and being someone who's eligible to receive, to do both, both receive those services and, you know what, let's cut out the middle person, we will deliver it to our people.

[01:04:52] Speaker 07:
With all due respect, I mean, the statute doesn't say which is recognized as eligible to receive.

[01:04:57] Speaker 04:
Well, I get that, but it says for the program and services provided by.

[01:05:02] Speaker 07:
And I view that as eligible to participate in.

[01:05:07] Speaker 07:
Everybody's got to add a little bit of language.

[01:05:10] Speaker 04:
I guess if I'm a subcontractor providing vaccines to some local community,

[01:05:22] Speaker 04:
That doesn't mean that I'm eligible for that vaccine myself.

[01:05:26] Speaker 04:
It just means I've been hired as an arm of the federal government to give this to other people here.

[01:05:32] Speaker 04:
Those other people are people who have the status of Indians.

[01:05:36] Speaker 04:
But that doesn't mean I'm eligible to receive it myself.

[01:05:39] Speaker 04:
You had a vaccine that was only for health care workers.

[01:05:42] Speaker 04:
And then they hired non healthcare workers, but really good shot givers to administer it to health to provide this program or service to healthcare workers.

[01:05:51] Speaker 04:
That would not mean that the contractor is itself eligible to get that first vaccine.

[01:05:56] Speaker 04:
It's just administering it to other people.

[01:05:59] Speaker 04:
And that's how I understand ANC is, but maybe I'm wrong.

[01:06:02] Speaker 07:
So I don't read the statute that way.

[01:06:05] Speaker 07:
And I don't think the ANCs are any different from the tribes in this respect.

[01:06:10] Speaker 07:
And I think it's helpful if you read the statute.

[01:06:15] Speaker 07:
I think even under my friends on the other side's position, the witches recognize clause is modifying not the recipients, it's recognizing

[01:06:26] Speaker 07:
any Indian tribe, band, nation, or other group or community, including the village or the village corporation or the region corporation.

[01:06:38] Speaker 07:
All of the relevant programs, all of the relevant special programs and benefits, especially if you understand the context of ISDIA, which is they're essentially kind of moving from the federal government providing all the benefits to the Native Americans directly,

[01:06:54] Speaker 07:
and they're trying to involve the tribal entities as a middle person.

[01:06:59] Speaker 07:
So I think if you understand that context, it's clear that they're not talking about not just ANCs, but the tribe or any of these other groups being the ultimate recipient of the shot in the arm of the vaccine.

[01:07:13] Speaker 07:
They're saying in the context where previously the federal government would do the vaccinations themselves through the Indian Health Service,

[01:07:22] Speaker 04:
Which always has an antecedent, right?

[01:07:25] Speaker 04:
Which has to refer backwards, not forwards to Indians.

[01:07:28] Speaker 04:
It has to refer backwards to Indian tribe, band, nation, organized group, community.

[01:07:34] Speaker 04:
So that's the thing that has to be eligible.

[01:07:37] Speaker 07:
Exactly.

[01:07:38] Speaker 07:
But since those are all entities, those are all groups, then I think you read the whole phrase, which is recognized as eligible,

[01:07:48] Speaker 07:
I think you do essentially say recognize as eligible as middle people because that's the role under these programs all of the entities perform.

[01:07:59] Speaker 07:
And then you keep reading and it says for the special programs and services provided by the United States to Indians because of their status as Indians.

[01:08:07] Speaker 07:
So the rest of the clause is talking about the recipients and the nature of the programs.

[01:08:11] Speaker 07:
But of course, we fit those to a T. The progress.

[01:08:15] Speaker 04:
This is ambiguous, this eligibility clause.

[01:08:17] Speaker 04:
Not the prior clause, but the eligibility clause.

[01:08:22] Speaker 04:
Don't we have to give Chevron deference to Interior on that, which says you don't meet it?

[01:08:28] Speaker 07:
No, I don't think so.

[01:08:30] Speaker 07:
I don't think they've asked for Chevron deference at all.

[01:08:33] Speaker 04:
Well, they haven't asked for it on whether that clause applies to ANCs.

[01:08:40] Speaker 04:
You don't think that they would claim Chevron deference to what the eligibility clause means?

[01:08:46] Speaker 07:
I don't think so.

[01:08:47] Speaker 07:
I mean, I think that, you know, they've been quite candid, I think, in asking for Skidmore Deference in nothing more.

[01:08:53] Speaker 07:
It's not my experience that the government is shy about asking for Chevron Deference when they think they're entitled to it.

[01:08:59] Speaker 04:
I think this is, they've asked for Skidmore Deference on whether the eligibility clause applies to ANCs.

[01:09:04] Speaker 04:
I mean, they can, I guess, tell us later in a letter if they want whether they claim Chevron Deference for what the eligibility clause means, which is a separate legal question.

[01:09:14] Speaker 07:
Sure, but they haven't claimed it at this late date.

[01:09:18] Speaker 07:
It seems a little late, Your Honor, with all due respect.

[01:09:20] Speaker 07:
And I don't think, but I think just it helps to take a step back because we know from the House report, we know from the drafting history that Congress thought that it was including ANCs in the statute.

[01:09:32] Speaker 07:
And it seems to me there's two paths to that result.

[01:09:35] Speaker 07:
They either thought that because they simply read

[01:09:39] Speaker 07:
the eligibility clause as plain English and said, yeah, the ANC satisfied.

[01:09:44] Speaker 07:
We know that.

[01:09:44] Speaker 07:
We just created them.

[01:09:46] Speaker 07:
And we just created them under the Indian Commerce Clause.

[01:09:50] Speaker 07:
And we gave them all sorts of land and all sorts of money that were available only to Native American entities.

[01:09:57] Speaker 07:
So if you read it, and it's plain language, it seems like the most obvious thing in the world that Congress thought, yeah, of course the ANCs, which we just added, are not excluded by the eligibility clause.

[01:10:08] Speaker 07:
Conversely.

[01:10:09] Speaker 07:
You can read it in this term of art way that says, yeah, that's sovereignty.

[01:10:14] Speaker 07:
Doesn't say the word sovereign.

[01:10:16] Speaker 07:
Certainly doesn't cross-reference the List Act, which isn't passed for 20 years.

[01:10:20] Speaker 07:
But if you want to read it that way, okay, nobody in 1975 thought the ANCs were sovereign.

[01:10:29] Speaker 07:
They might have thought, there might have been like a jump ball question is exactly how much money the ANCs were gonna ultimately get when things played out and interior had all the T's crossed and all the I's dotted.

[01:10:40] Speaker 07:
But nobody in 1975 thought that if the eligibility clause meant sovereignty, that the ANCs were sovereign.

[01:10:49] Speaker 06:
Why is that so obvious, right?

[01:10:55] Speaker 06:
You make a very nice,

[01:10:58] Speaker 06:
thematic point that the Claim Settlement Act and the arrangements in Alaska are sui generis.

[01:11:11] Speaker 06:
And ANCs are this new kind of entity that's set up in part to perform government-like services that in the lower 48 would be performed by tribes.

[01:11:28] Speaker 06:
It's like the tribal equivalent of HHS.

[01:11:33] Speaker 06:
And recognition seems to have been much less clear at the time than it is now.

[01:11:45] Speaker 06:
So why isn't the solution to my problem of which canon do I offend?

[01:11:54] Speaker 06:
is to say everything hangs together because even though it turns out ANCs weren't recognized as sovereign, that was an open question at the time.

[01:12:11] Speaker 07:
So, Your Honor, first of all, to be clear, if you're going to look at all of the legislative history, you have to confront the fact... Well, I'm not looking at legislative history.

[01:12:21] Speaker 07:
Okay, but let's say some of your colleagues are.

[01:12:24] Speaker 07:
then they're gonna have to confront the reality that Congress was not adding those ANCs that may later be determined to be sovereign.

[01:12:32] Speaker 07:
And if they're not determined to be sovereign, we don't care.

[01:12:35] Speaker 07:
They thought they were adding the ANCs.

[01:12:38] Speaker 07:
The second point, Your Honor, is in 1971, the Congress that had a lot of the same members as 1975, not that that's outcome determinative, but they just created these special entities as

[01:12:53] Speaker 07:
federally dictated state chartered corporations.

[01:12:58] Speaker 07:
Now, I don't think anybody is going to tell you that a newly created novel enterprise that is at bottom a state corporation, but the voting patterns of which are dictated by federal law is sovereign.

[01:13:14] Speaker 07:
I just- I mean, who knows, right?

[01:13:16] Speaker 06:
I mean, there's a whole line of jurisprudence on whether Amtrak is sovereign or not.

[01:13:23] Speaker 06:
structured as a corporation.

[01:13:25] Speaker 07:
But here's the other thing, Judge Katz, which I think buttresses my point, is that they knew they were creating these new corporations as something novel that were in addition to the Alaskan native villages.

[01:13:40] Speaker 07:
And they understood that those were sovereign.

[01:13:44] Speaker 07:
And so they create a new novel thing that they understand is going to overlap with them and our corporate entities.

[01:13:51] Speaker 07:
I just think it really beggars belief that they really thought those were sovereign.

[01:13:56] Speaker 07:
And here's the other thing, Judge Katz, is if you're gonna give any sort of kind of meaningful sort of consistent interpretation to these statutes, you do have to realize that over time, Congress keeps on using the ISDEA definition long after all of this is settled, long after nobody thinks the ANCs can be truly sovereign.

[01:14:19] Speaker 07:
It keeps on using the definition

[01:14:21] Speaker 07:
in ways where it makes textually clear that it thinks it's including the ANCs.

[01:14:28] Speaker 07:
Now, it wouldn't be surprising that they thought that, because that's the administration's unbroken position.

[01:14:34] Speaker 07:
That's the Ninth Circuit's position, which is the circuit where all of these tribes are located.

[01:14:40] Speaker 07:
But in addition, you really see this.

[01:14:42] Speaker 07:
We cite this 2018 statute, the biomass demonstration amendment,

[01:14:49] Speaker 07:
It may not be the most important statute in this whole sort of corpus of statutes, but it's crystal clear Congress wants to provide these demonstration projects to federally recognized tribes and ANCs.

[01:15:02] Speaker 07:
And it does it using the ASEA definition.

[01:15:06] Speaker 07:
So it seems to me that's confirmatory of the idea that Congress went all the way back to 1975, but consistently in statute after statute up to and including the CARES Act,

[01:15:18] Speaker 07:
understands the ANCs are novel.

[01:15:21] Speaker 07:
They are an important part of the solution of getting funds to individuals in Alaska, Native individuals in Alaska, but they are not sovereign.

[01:15:31] Speaker 07:
I know over my time, if I could say one thing about the 1997 act, because my friend brought it up and I do think it's important not to misunderstand that act.

[01:15:41] Speaker 07:
The 1997 act is doing something that is important, actually confirms our position,

[01:15:48] Speaker 07:
but does not support the appellants.

[01:15:49] Speaker 07:
What happens is, if you look at Izdia, in the definition of tribal organization, there is a proviso, the last part of that definition.

[01:16:00] Speaker 07:
The proviso makes a lot of sense.

[01:16:02] Speaker 07:
The proviso says that if a tribe or a tribal organization is providing services for members of multiple tribes, it has to get the assent of all of those tribal entities.

[01:16:15] Speaker 07:
So what happened

[01:16:16] Speaker 07:
right before 1997, it wasn't just like a continuous pattern of things that had always happened, that Syria had participated in Izdia before 1997, but a few years before 1997, an existing Alaskan health service that had been run by the federal government directly in Anchorage and was serving all sorts of natives from all sorts of different tribes was handed over to Syria to run.

[01:16:43] Speaker 07:
And the question that arose was, wow, there's like,

[01:16:47] Speaker 07:
Native Americans from like 200 different villages and regional corporations that are served by this entity.

[01:16:54] Speaker 07:
Does Syria really have to get the approval of 200 different tribes and ANCs?

[01:17:00] Speaker 07:
And that was what the litigation in that 1997 case was about.

[01:17:04] Speaker 07:
Congress passed a statute that said essentially for this facility, like facility specific legislation, you don't need to get the approval of all of

[01:17:15] Speaker 07:
the villages and regional corporations and village corporations.

[01:17:21] Speaker 07:
And the important part about that is Congress itself waived the requirement to get the approval of the ANCs themselves, and you only need their approval under the statute if they are tribes.

[01:17:35] Speaker 07:
So the 1997 statute is of pretty limited focus.

[01:17:40] Speaker 07:
It doesn't sort of change the whole world, but

[01:17:43] Speaker 07:
Everything about it supports the position that ANCs are eligible to participate in ISDEA and are covered by the definition.

[01:17:52] Speaker 04:
Can I ask one quick question?

[01:17:53] Speaker 04:
Were ANCs, regional or local, eligible to apply for relief under the CARES Act under the PPP provisions as businesses business concerns?

[01:18:09] Speaker 07:
Some of them.

[01:18:10] Speaker 04:
Some of them.

[01:18:11] Speaker 07:
So some of them may have been, Your Honor.

[01:18:14] Speaker 07:
I don't think there's anything that expressly excludes them.

[01:18:16] Speaker 07:
But the same thing is true of lower 48 tribal corporations.

[01:18:21] Speaker 04:
So there's some provisions that an entity with a tribal affiliation, whether it's some organization that's sub- My assumption is that lower 48 tribal corporations cannot seek funds as a tribal government.

[01:18:37] Speaker 04:
No one thinks they can do that.

[01:18:39] Speaker 04:
No, no, but I may have missed- Whether the folks that are seeking money here could also, and it's sort of different uses of money.

[01:18:46] Speaker 04:
I'm just asking whether any could have, or if you're aware, any of your clients have sought PPP funds.

[01:18:54] Speaker 07:
So if I'm understanding, we're talking about PPP funds that are outside of Title V, is that right?

[01:19:00] Speaker 04:
I don't know if I got my titles right.

[01:19:01] Speaker 04:
Just the ones that are available to nonprofits or business concerns.

[01:19:05] Speaker 07:
Yes.

[01:19:07] Speaker 07:
It is my understanding, Judge Millett, but I can try to confirm this and send you a letter, is that both some ANC sub-entities and some tribal corporations have sought those funds.

[01:19:21] Speaker 04:
So some ANCs have?

[01:19:23] Speaker 07:
And some lower 48 tribal corporations.

[01:19:25] Speaker 04:
I understand you're talking about them because they're totally different.

[01:19:28] Speaker 04:
They're very different, because they don't.

[01:19:30] Speaker 07:
Oh, I'm sorry.

[01:19:31] Speaker 04:
With all due respect, I don't think they are any different.

[01:19:33] Speaker 04:
Well, maybe not PPP, but they can't.

[01:19:35] Speaker 04:
The question here is whether someone could be both a business concern for PPP purposes and a tribal government for these purposes.

[01:19:45] Speaker 04:
And maybe you can do both, because these things have kind of a unique status.

[01:19:50] Speaker 07:
Yeah, and as I'm sitting here, I don't know if the entity that applied for the PPP funds was the ANC itself or a sub-organization.

[01:19:58] Speaker 07:
But the point is, nobody's questioned, as far as I know, the eligibility of a tribal-related corporation to seek some PPE funds as a corporation, whether lower 48 or an Alaskan-affiliated thing.

[01:20:15] Speaker 07:
If I could just maybe finish on this point, though, the one thing that I think is crystal clear is, you know, Mr. Kanju may be right.

[01:20:23] Speaker 07:
My friend may be right that, like, you don't know exactly how the funds are going to be allocated here.

[01:20:29] Speaker 07:
if we lose, but I do think in the AFN brief, I think there's a nice job of making this point.

[01:20:35] Speaker 07:
Given the reality on the ground, given the reality that lots and lots of people in Anchorage, for example, who are Native Americans, are getting their medical services through Siri, that lots of individuals in other regions are getting their housing assistance through regional corporations through NAHASTA,

[01:20:58] Speaker 07:
If you exclude the ANCs from this statute, Alaskan Natives will be systematically undercounted in the allocation of funds.

[01:21:08] Speaker 04:
Even if they are represented, even if they are members of a native village?

[01:21:15] Speaker 04:
Are you talking about people not in native villages?

[01:21:18] Speaker 07:
Yes, because the allocation funds that Interior and Treasury have used, they're a little complicated.

[01:21:26] Speaker 07:
Part of them is population.

[01:21:27] Speaker 07:
But one big important part of them is employees.

[01:21:33] Speaker 07:
And so the lower 48 tribes can count all of their employees in the tribal headquarters.

[01:21:38] Speaker 07:
And I believe they can count even the ones in the casino.

[01:21:42] Speaker 07:
Those all count as their employees.

[01:21:44] Speaker 07:
Now, the Alaskan native villages, because they rely on the regional ANCs and the village ANCs for the delivery of a lot of services, and not because

[01:21:55] Speaker 07:
They're lazy or they're weird, but because that's the way Congress set it up in Alaska in 1971, they had very few employees.

[01:22:03] Speaker 07:
Their budgets are much smaller than an analogous lower 48 tribe.

[01:22:07] Speaker 07:
And that's because a bunch of the employees that are discharging the kind of roles that lower 48 tribes discharge in Alaska are situated in the ANCs.

[01:22:18] Speaker 07:
A lot of the budget for some of that is situated in the ANCs.

[01:22:23] Speaker 07:
So if you say they're not included in the statute, you will systematically under count Alaska, under fund Alaska, which presumably explains why the delegation is here, why the Alaskan Federation of Natives that represents everybody in Alaska, including the tribes.

[01:22:42] Speaker 04:
Aren't they also providing services to individuals who are not members of Alaska Native villages?

[01:22:50] Speaker 07:
There may be a few, but not in any way that's different from the lower 48 crops.

[01:22:55] Speaker 04:
Your brief said that ANCs step in when there is no... Oh, I'm sorry.

[01:23:02] Speaker 07:
I misunderstood your question.

[01:23:04] Speaker 07:
So there is a big chunk of what regional ANCs do that provides benefits to Native Americans who are not the member of any village.

[01:23:15] Speaker 07:
And that I think is particularly true

[01:23:19] Speaker 07:
It may not be true very much of every regional corporation, but as a population matter, I think it is very true because a disproportionate number of services are provided by Syria to individuals in the Anchorage area, because that's where the population is, and a disproportionate number of the Native Americans in Anchorage don't have a village tribal affiliation.

[01:23:47] Speaker 07:
So there really is, from a population standpoint.

[01:23:50] Speaker 07:
They're not members of a recognized native village.

[01:23:54] Speaker 07:
They're not members of a native village.

[01:23:56] Speaker 07:
They may be shareholders of either Syria or one of the other regional corporations.

[01:24:00] Speaker 07:
They may even, and this is where it gets a little complicated, but this is where it is the same as the lower 48.

[01:24:06] Speaker 07:
You do have the possibility that some of Syria's organizations are providing services to a member of the Cherokee tribe who happens to be up in Anchorage.

[01:24:16] Speaker 07:
But that also happens in the lower 48, too.

[01:24:18] Speaker 07:
So I don't think anything turns on that.

[01:24:20] Speaker 07:
But in terms of a unique undercounting problem, there is a unique undercounting problem in Alaska, not just because of the not counting the budgets and the employees, but because of what you put your finger on, which is there's a disproportionate number of Native Americans, particularly in the Anchorage area.

[01:24:35] Speaker 07:
They're not a member of a federally recognized problem.

[01:24:40] Speaker 00:
All right.

[01:24:41] Speaker 00:
Thank you, Mr. Clement.

[01:24:44] Speaker 00:
Mr. Kanji, why don't you take two minutes?

[01:24:48] Speaker 05:
Thank you, Judge Henderson.

[01:24:49] Speaker 05:
I'd like to make four points if I can.

[01:24:51] Speaker 05:
The first has to do with text and surpluses, Judge Katz's question.

[01:24:56] Speaker 05:
This court has answered that question several times, then Judge Roberts' opinion in the Amico case more recently in

[01:25:03] Speaker 05:
And I think it's important to note that when you're reading Mercy Hospital versus Azar, that where you have a natural reading, a grammatical reading of a statute, the rule against surplusage cannot trump that, that it only applies where readings are unclear.

[01:25:18] Speaker 05:
there is no surplusage here.

[01:25:21] Speaker 05:
The fact, under the ANC position, you could never have a named statutory entity and a condition attached to that entity, because if the condition isn't satisfied, you would have surplusage, and that is simply not how surplusage is understood.

[01:25:35] Speaker 05:
Mr. Clement mentioned many statutes since his dia that name ANCs.

[01:25:41] Speaker 05:
Those statutes actually prove our point because many of those statutes clearly do not apply to ANCs.

[01:25:47] Speaker 05:
They only apply to sovereign governments.

[01:25:49] Speaker 05:
I'll give a couple of examples.

[01:25:50] Speaker 05:
Law enforcement statutes like the Missing Americans Alert Act 25 USC 1262.3, that has no application to ANCs, but they are specified in there.

[01:26:00] Speaker 05:
That would not fit Mr. Clement's approach to statutory interpretation.

[01:26:03] Speaker 05:
The Trust Fund Management Reform Act, an incredibly important act from 1994,

[01:26:08] Speaker 05:
Citing the Syriamicus brief, they admit that it doesn't apply to ANCs, yet the ANCs are there specified.

[01:26:15] Speaker 05:
By contrast, Congress has many times since then when it has expressly wanted to include

[01:26:20] Speaker 05:
ANCs has mentioned them after the eligibility clause or has mentioned them without an eligibility clause at all.

[01:26:27] Speaker 05:
We cite several examples in our reply brief.

[01:26:30] Speaker 05:
Congress knows how to do this.

[01:26:32] Speaker 05:
The legislative history does not help on the surplusage argument at all.

[01:26:37] Speaker 05:
All Congress did was bring ANCs to the same baseline, put them on the same footing,

[01:26:42] Speaker 05:
as all the other listed entities in the statute, which are subject to the eligibility clause.

[01:26:47] Speaker 05:
We can't psychoanalyze Congress.

[01:26:49] Speaker 05:
There may be disputes as to what was in its mind, but there is no dispute as to the text.

[01:26:55] Speaker 05:
Congress placed the ANCs before the eligibility clause, and as I said earlier, it would be passing strains for the one entity that Congress had textually

[01:27:04] Speaker 05:
stated could be non-native within 20 years for Congress not to apply the dynamic principle of the eligibility clause to those entities.

[01:27:15] Speaker 05:
The questions about the historic understanding, I think, are exactly on point.

[01:27:20] Speaker 05:
First, Judge Millett, your questions.

[01:27:22] Speaker 05:
Yes, the eligibility language is the mirror

[01:27:25] Speaker 05:
of what was used in the termination statutes, it was clearly understood to apply to tribal status.

[01:27:32] Speaker 05:
The term that the ANCs ignore is the term at the end of it because of one status as Indians.

[01:27:40] Speaker 05:
One was eligible for programs and services.

[01:27:42] Speaker 05:
That was understood to mean that if you had tribal status, the trust responsibility attached, you were eligible for the full panoply of programs and services

[01:27:52] Speaker 05:
that the government has to provide on a non-discriminatory basis to recognize governments.

[01:27:59] Speaker 05:
The Interior Department actually suggested the inclusion of that language in ISDIA.

[01:28:05] Speaker 05:
There had been a more colloquial language that sort of approximated what the ANCs are talking about, but Interior expressly referencing the termination statute said, no, we should use this formulation and add a well-understood meaning.

[01:28:17] Speaker 05:
And Judge Katz is exactly right at that time

[01:28:20] Speaker 05:
It is ahistorical for the United States to look back with hindsight and say there was no chance in 1975 that the ANCs were not going to be recognized in that way.

[01:28:31] Speaker 05:
It was a period of tremendous flux.

[01:28:33] Speaker 05:
All one has to do is read Solicitor's Statutes and Opinion.

[01:28:36] Speaker 05:
It does a very good job of conveying that state of flux.

[01:28:40] Speaker 05:
Congress itself, the joint conference report we cite from 1971 said, we're creating these institutions.

[01:28:46] Speaker 05:
We honestly have a lot of disagreements and understandings about what the exact nature of these institutions are.

[01:28:52] Speaker 05:
We're going to push this down the road.

[01:28:54] Speaker 05:
We'll decide later.

[01:28:55] Speaker 05:
So it's ahistorical to say that in 1975, everyone understood from the get-go that the ANCs were ineligible for recognition that would have brought them within

[01:29:06] Speaker 05:
the eligibility clause, the ANCs themselves in 1977, and we have to assume they did this in good faith, were telling the Interior Department when it was considering its acknowledgement regulations, we should qualify, don't close the door to us.

[01:29:18] Speaker 05:
It was in 1978 that Interior closed the door to tribal acknowledgement through its regulatory process, though, as you said, Judge Millett, that clearly did not shut the door on Congress's ability, as it did with the Franks landing community.

[01:29:31] Speaker 05:
to deem the ANC's eligible under the eligibility clause.

[01:29:36] Speaker 05:
Finally.

[01:29:37] Speaker 00:
All right.

[01:29:38] Speaker 00:
All right.

[01:29:38] Speaker 00:
No, that's it.

[01:29:39] Speaker 00:
That's it.

[01:29:40] Speaker 05:
OK.

[01:29:41] Speaker 00:
Thank you, Justice.

[01:29:41] Speaker 00:
Let me give two minutes to Mr. Ross Mooson.

[01:29:47] Speaker 01:
Thank you, Your Honor.

[01:29:49] Speaker 01:
The one point that Mr. Kanji was just making about tribes and sovereignty

[01:29:56] Speaker 01:
and what recognition means is important.

[01:30:00] Speaker 01:
Again, recognize tribes means something, recognize members of tribes means something.

[01:30:06] Speaker 01:
And as he discusses, we go back and what we're initially starting with is this idea that they have this trust responsibility to these specific Native American people and these Native Americans that have entered into treaties with the United States.

[01:30:20] Speaker 01:
The tribes entered into the treaty, the membership of the tribe

[01:30:24] Speaker 01:
has, the United States has a trust responsibility to the members of those tribes.

[01:30:30] Speaker 01:
And obviously, we all respect Mr. Clement, but where he really makes a huge mistake here is to assert that we should interpret this statute based upon race.

[01:30:40] Speaker 01:
And Indian definition is not based upon race.

[01:30:43] Speaker 01:
It is based upon people.

[01:30:44] Speaker 04:
I didn't hear him say that at all, honestly.

[01:30:47] Speaker 04:
But what I'd like to ask you is,

[01:30:52] Speaker 04:
What is your answer to the underfunding argument?

[01:30:57] Speaker 04:
And the fact that, at the end of the day, if it's just a distinct status, Congress did something novel and very different in ANSA.

[01:31:09] Speaker 04:
But it still meant to insure services to Alaska Natives on the same terms as American Indians in the lower 48.

[01:31:21] Speaker 04:
And it sounds like with the definition you're proposing, although you're doing it through the tribal government, ineligibility here would result in a big difference in coverage.

[01:31:32] Speaker 01:
Well, no, we disagree with that.

[01:31:34] Speaker 01:
What we've got is that the Treasury Department developed criteria for how it would allocate money.

[01:31:41] Speaker 01:
But for every tribe, and there's over 200 tribes in Alaska.

[01:31:46] Speaker 01:
Every tribe, every member who is a member of that tribe

[01:31:50] Speaker 01:
gets, there was an allocation for that member, every single one of them.

[01:31:55] Speaker 04:
But they can lower the allocation because there's fewer employees, if I understand the system, and maybe I don't.

[01:32:01] Speaker 01:
There was an allocation made to employees, related to employees as well.

[01:32:06] Speaker 01:
But again, that's the allocation standards that the United States chose.

[01:32:10] Speaker 01:
And if it had chose a different allocation standard, then Mr. Clement's problem would go away.

[01:32:15] Speaker 01:
If they'd solely done it based upon population, for example,

[01:32:19] Speaker 01:
There wouldn't be this.

[01:32:20] Speaker 01:
That's the allocation issue that the United States has correctly asserted is solely within their discretion.

[01:32:26] Speaker 01:
It's not.

[01:32:27] Speaker 04:
And so they're in their view of the statute.

[01:32:30] Speaker 04:
It doesn't leave the doesn't create the undercounting problem that your view of the statute does and they may not, you know, undercounting the cares act, but probably in a lot of other programs where there's references to

[01:32:40] Speaker 04:
where they adopt the ISDEA definition.

[01:32:44] Speaker 01:
Right.

[01:32:45] Speaker 01:
And we have concerns about that, but we also – Mr. Clement's argument would dramatically overcount, because it would bring all of those large multinational corporation employees within that count.

[01:32:59] Speaker 01:
So yeah, there's not – this is where the United States developed these criteria, but

[01:33:04] Speaker 01:
there would be a much more important overcount problem.

[01:33:08] Speaker 04:
Are you saying a lot of ANC employees are not Alaska Natives at all?

[01:33:15] Speaker 01:
As we use the term Alaska Natives for Indian law, no, they're not.

[01:33:19] Speaker 01:
Because we're using the term to mean people who have the political relationship with the United States.

[01:33:24] Speaker 01:
If they have that political relationship, then their regional or their tribe got money for them.

[01:33:33] Speaker 01:
because they have that political relationship with the United States.

[01:33:37] Speaker 01:
And that's where we can't give money.

[01:33:39] Speaker 01:
The United States can't give money based upon the racial category.

[01:33:43] Speaker 01:
It can only do it based upon the political relationship.

[01:33:46] Speaker 01:
So if those people who might not be in mold went and got in mold, they would then be counted.

[01:33:53] Speaker 01:
But many of them are not in mold.

[01:33:55] Speaker 01:
And we have the same thing in the lower 48, where there are many Indians who are mostly Indian blood,

[01:34:02] Speaker 01:
who are not enrolled in a tribe.

[01:34:05] Speaker 01:
And that's not different than it is in Alaska.

[01:34:08] Speaker 01:
And so there is an undercount in that way as well for all of the tribes.

[01:34:12] Speaker 01:
So the allocation formula, though, is what the United States came up with.

[01:34:16] Speaker 01:
And that's not something that we can discuss really on appeal, because that is something they had the discretion on and creates an unappealable issue.

[01:34:27] Speaker 00:
All right.

[01:34:29] Speaker 00:
Judge Casas, any questions?

[01:34:33] Speaker 00:
All right.

[01:34:34] Speaker 00:
Then, Council, the case is submitted.

[01:34:37] Speaker 01:
Thank you, Honors.