                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
 _________________________________________
                                           )
CONFEDERATED TRIBES OF THE                 )
CHEHALIS RESERVATION, et al.,              )
                                           )
       Plaintiffs,                         )
                                           )
              v.                           )    Case No. 20-cv-01002 (APM)
                                           )
STEVEN MNUCHIN, in his official capacity   )
as Secretary of the Treasury,              )
                                           )
       Defendant.                          )
_________________________________________ )
CHEYENNE RIVER SIOUX TRIBE, et al.        )
                                          )
       Plaintiffs,                        )
                                          )
              v.                          )             Case No. 20-cv-01059 (APM)
                                          )
STEVEN MNUCHIN, in his official capacity  )
as Secretary of the Treasury,             )
                                          )
       Defendant.                         )
_________________________________________ )
UTE TRIBE OF THE UINTAH AND               )
OURAY RESERVATION,                        )
                                          )
       Plaintiff,                         )
                                          )
              v.                          )             Case No. 20-cv-01070 (APM)
                                          )
STEVEN MNUCHIN, in his official capacity  )
as Secretary of the Treasury,             )
                                          )
       Defendant.                         )
_________________________________________ )

                              MEMORANDUM OPINION

      Under Title V of the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act,

Congress appropriated $8 billion for “Tribal governments” to combat the COVID-19 pandemic.
This consolidated case concerns who qualifies as a “Tribal government” under the CARES Act.

Plaintiffs are a group of federally recognized tribes from the lower 48 states and Alaska; they ask

this court to permanently enjoin the Secretary of the Treasury from making Title V payments to

Alaska Native regional and village corporations, or ANCs. ANCs are not federally recognized

tribes; rather, they are for-profit corporations established by Congress in 1971 under the Alaska

Native Claims Settlement Act and recognized under Alaska law.

       The CARES Act defines “Tribal governments” to mean “the recognized governing body

of an Indian Tribe.” The Act in turn defines “Indian Tribe” by cross-referencing the definition of

that term in another statute: the Indian Self-Determination and Education Assistance Act.

In Plaintiffs’ view, ANCs do not meet the statutory definition of either “Indian Tribe” or “Tribal

government.” The Secretary of the Treasury, whom Congress vested with authority to allocate

Title V funds, on the other hand, reads the CARES Act to allow payment of Title V funds to ANCs.

The court previously agreed with Plaintiffs, at least tentatively, and preliminarily enjoined the

Secretary from distributing CARES Act funds to ANCs. See Confederated Tribes of the Chehalis

Reservation v. Mnuchin, Case No. 20-cv-1002 (APM), 2020 WL 1984297 (D.D.C. April 27, 2020)

(“Confederated Tribes”). In that decision, the court found that Plaintiffs would be irreparably

harmed absent emergency relief, and that they had established a substantial likelihood of success

on the merits.

       The matter is before the court on cross-motions for summary judgment. Although the court

initially determined that Plaintiffs were likely to succeed on the merits of their claim, after

reviewing the parties’ arguments on summary judgment, the court now holds that ANCs are

“Indian Tribes,” and that their boards of directors are “Tribal governments,” for purposes of the




                                                2
CARES Act. Accordingly, ANCs are eligible to receive Title V funds. As a result, the court

dissolves the preliminary injunction and enters judgment in favor of Defendants.

                                                      I.

        A.       Background

        The court begins with a brief overview of the relevant statutes and the history of this case. 1

                 1.      Statutory Background

        Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES

Act”), Pub. L. No. 116-136, 134 Stat. 281 (2020), to respond to the devastating impacts of the

COVID-19 pandemic. Title V of the CARES Act, the title relevant here, appropriates $150 billion

for fiscal year 2020 for “payments to States, Tribal governments, and units of local government.”

42 U.S.C. § 801(a)(1). Of that sum, $8 billion is “reserve[d] . . . for making payments to Tribal

governments.” Id. § 801(a)(2)(B). Congress directed the Secretary of the Treasury (“Secretary”)

to disburse those monies to “Tribal governments” within 30 day of the law’s enactment, or by

April 26, 2020. § 801(b)(1).

        The CARES Act defines “Tribal government” as “the recognized governing body of an

Indian tribe.” Id. § 801(g)(5). The Act further provides that “[t]he term ‘Indian Tribe’ has the

meaning given that term” in section 4(e) of the Indian Self-Determination and Education

Assistance Act, 25 U.S.C. § 5304(e)). Id. § 801(g)(1). The Indian Self-Determination and

Education Assistance Act, or ISDEAA, defines “Indian tribe” as “any Indian tribe, band, nation,

or other organized group or community, including any Alaska Native village or regional or village

corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act




        1
          For a more detailed factual and procedural background, the court directs the reader to its Memorandum
Opinion granting preliminary injunctive relief. See Confederated Tribes, 2020 WL 1984297.

                                                      3
(85 Stat. 688) [43 U.S.C. § 1601 et seq. (“ANCSA”)], which is recognized as eligible for the

special programs and services provided by the United States to Indians because of their status as

Indians.” 25 U.S.C. § 5304(e). The court refers to “Alaska Native . . . regional or village

corporation[s]” in this opinion as ANCs.

       Congress enacted ISDEAA in 1975 “to help Indian tribes assume responsibility for aid

programs that benefit their members.” Menominee Indian Tribes of Wis. v. United States,

136 S. Ct. 750, 753 (2016).      Under ISDEAA, federally recognized Indian tribes, tribal

organizations, and tribal consortiums can choose to have the Bureau of Indian Affairs (BIA)

provide direct services, or they can operate the programs themselves by entering into “self-

determination contracts” with these federal agencies to provide services that otherwise would have

been provided by the federal government, such as education, law enforcement, and health care.

25 U.S.C. § 5321(a)(1); see also Menominee Indian Tribes of Wis., 136 S. Ct. at 753.            A

contracting tribal organization is eligible to receive the amount of money that the federal

government would have otherwise spent on the program, see 25 U.S.C. § 5325(a)(1), as well as

reimbursement for reasonable “contract support costs,” which include administrative and overhead

costs associated with carrying out the contracted programs, id. § 5325(a)(2), (3)(A). ISDEAA was

amended in 1988, 1994, and 2000, and now includes health care programs administered by the

Indian Health Service. See Pub. L. 100-472 (Oct. 5, 1988); Pub. L. 103-413 (Oct. 25, 1994); Pub.

L. 106-260 (Aug. 18, 2000).

               2.     Factual and Procedural Background

       Congress instructed the Secretary to distribute Title V funding quickly—within 30 days of

the law’s enactment. So, on April 13, 2020, shortly after the CARES Act became law, the

Secretary published on the Treasury Department’s website a form titled “Certification for



                                                4
Requested Tribal Data,” which sought certain data to effectuate disbursement of CARES Act

funds. See Confederated Tribes of the Chehalis Pls.’ Mot. for TRO & Prelim. Inj., ECF No. 3,

Decl. of Riyaz Kanji, Ex. 2, ECF No. 3-8 [hereinafter Certification], at 15–16. The Certification

identified metrics specific to ANCs. ANCs are not federally recognized Indian tribes but are for-

profit corporations established by Congress under the Alaska Native Claims Settlement Act. See

43 U.S.C. §§ 1606, 1607. The metrics specific to ANCs identified by the Secretary included

“shareholders” as of January 1, 2020, and total land base, which expressly included lands “selected

pursuant to the Alaska Native Claims Settlement Act.” Certification.

        The Certification’s posting prompted three groups of Tribes to bring suit against the

Secretary under the Administrative Procedure Act (“APA”), challenging the Secretary’s

anticipated treatment of ANCs as eligible for Title V funding. Id. On April 17, 2020, the

Confederated Tribes of the Chehalis Reservation, the Tulalip Tribes, the Houlton Band of Maliseet

Indians, the Akiak Native Community, the Asa’carsarmiut Tribe, and the Aleut Community of

St. Paul Island (collectively, “Confederated Tribes Plaintiffs”) filed an action against the Secretary.

Confederated Tribes Compl., ECF No. 1. 2 Shortly afterward, Plaintiffs Cheyenne River Sioux

Tribe, Oglala Sioux Tribe, and Rosebud Sioux Tribe filed their suit, see Cheyenne River Sioux

Compl., ECF No. 1, and Plaintiff Ute Indian Tribe of the Uintah and Ouray Reservation filed a

third lawsuit the next day, see Ute Compl., ECF No. 1. The court consolidated all three cases.

See Docket 20-cv-1070, Minute Order, April 24, 2020; Docket 20-cv-1059, Minute Order, April

23, 2020.




        2
          The Confederated Tribes Plaintiffs filed an amended complaint, which added the Navajo Nation; Quinault
Indian Tribe; Pueblo of Picuris; Elk Valley Rancheria, California; and San Carlos Apache Tribe as plaintiffs.
See Am. Confederated Tribes Compl., ECF No. 7. Plaintiffs again brought the same single count for violations of the
APA. Id. ¶¶ 117–23.

                                                        5
         On April 23, 2020, the Treasury Department formally announced its position that it

intended to distribute Title V funds to ANCs: “After consultation with the Department of the

Interior, Treasury has concluded that Alaska Native regional and village corporations as defined

in or established pursuant to the Alaska Native Claims Settlement Act are eligible to receive

payments from the Fund in the amounts to be determined by the Secretary of the Treasury.”

U.S. TREASURY DEP’T, Coronavirus Relief Fund Payments to Tribal Governments (April 23,

2020) (footnote omitted). 3

         All Plaintiffs moved for preliminary injunctive relief, which this court granted on April 27,

2020. See Confederated Tribes, 2020 WL 1984297. In granting that relief, the court rejected the

Secretary’s threshold contention that the Treasury Department’s legal determination that ANCs

are eligible for Title V funds is a presumptively unreviewable discretionary action under the APA.

See id. at *5–6. The court concluded that, “while the Secretary’s decisions as to how much to

disburse might not be reviewable, his decisions to whom to disburse those funds most certainly

is.” Id. at *5 (footnote omitted). As for the injunction factors, the court evaluated them on a sliding

scale and found that they weighed in favor of granting relief. See id. at *7–15. In particular, on

the merits of the APA claim, the court preliminarily agreed with Plaintiffs that no ANC satisfied

the CARES Act’s definition of “Tribal government” and therefore no ANC was eligible for Title

V funds. Id. at *10. The court declined, however, to grant the full relief that Plaintiffs sought.

Instead of compelling the Secretary to distribute all $8 billion in Title V funds only to federally

recognized Indian tribes, the court entered a “more limited remedy,” id. at *16, which enjoined the


         3
            Available at https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-Payments-to-Tribal-
Governments.pdf. The Confederated Tribes and the Cheyenne River Sioux Plaintiffs both amended their complaints
a second time following summary judgment briefing to include an additional allegation regarding the Secretary’s April
23, 2020 statement, which was not issued until after the date of the Confederated Tribes Plaintiffs’ first amended
complaint. See Confederated Tribes Second Am. Compl., ECF No. 93; Cheyenne River Sioux Second Am. Compl.,
ECF No. 96.

                                                         6
Secretary from disbursing Title V funds to any ANC pending entry of a final judgment in the case,

see Order, ECF No. 37.

        On May 5, 2020, the Treasury Department began distributing 60 percent, or $4.8 billion,

of the $8 billion in Title V funds designated for Tribal governments. The Secretary allocated that

sum based not on any information collected through the Certification, but rather on pre-existing

tribal population data maintained by the U.S. Department of Housing and Urban Development

(“HUD”).      See U.S. DEP’T       OF   TREASURY, Coronavirus Relief Fund Allocations to Tribal

Governments (May 5, 2020), at 2. 4 Based on the HUD data, the Secretary determined that ANCs

would receive $162.3 million in Title V funds but withheld that amount to comply with the

preliminary injunction. See Agua Caliente Band of Cahuilla Indians v. Mnuchin, No. 20-cv-01136

(APM) [hereinafter Agua Caliente Band], 5/8/2020 Hr’g Tr., ECF No. 30, at 18.

        The Secretary began disbursing the balance of the Title V funds on June 17, 2020.

See Notice, Agua Caliente Band, ECF No. 43 [hereinafter Notice]. This second tranche of

emergency relief was distributed based on employment and expenditure data submitted by Tribal

governments, including ANCs. See Def.’s Status Report, Agua Caliente Band, ECF No. 39. The

Secretary once again allocated Title V funds to ANCs but withheld making payments per the

court’s order, see Notice, and he has not publicly announced the exact amount withheld for ANCs

in this second tranche of funding.

        Meanwhile, a number of ANCs and ANC associations filed motions to intervene as

defendants in this case, 5 which the court granted. See Minute Order, May 13, 2020; Order, ECF



       4
         Available at https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-Tribal-Allocation-
Methodology.pdf.
        5
          See Mot. of Ahtna, Inc. to Intervene as Defendant & Incorporated Mem. of Law, ECF No. 43; Mot. of
Alaska Native Village Corp. Ass’n, Inc. & Ass’n of ANCSA Regional Corp. Presidents/CEO’s, Inc. to Intervene and
Mem. of P. & A., ECF No. 45; Mot. to Intervene as Defendants & Supp. Mem. of Law, ECF No. 46.

                                                       7
No. 70. Summary judgment briefing concluded on June 9, 2020, and the court heard argument on

the parties’ cross-motions on June 12, 2020. See Minute Entry, June 12, 2020.

                                                 II.

       Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when the

moving party demonstrates that “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, in cases such as this

one involving review of a final agency action, the standard set forth in Rule 56 does not apply.

See AFL-CIO v. Chao, 496 F. Supp. 2d 76, 81 (D.D.C. 2007). The court’s role in an APA action

“is to determine whether or not as a matter of law the evidence in the administrative record

permitted the agency to make the decision it did.” Charter Operators of Ala. v. Blank, 844 F. Supp.

2d 122, 127 (D.D.C. 2012) (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.

1985)). Summary judgment “serves as a mechanism for deciding, as a matter of law, whether the

agency action is supported by the administrative record and is otherwise consistent with the APA

standard of review.” Id.

                                                III.

       The Secretary renews the jurisdictional argument that the court rejected at the preliminary

injunction stage, which is that “Congress did not intend for emergency relief payments to be

subject to judicial review.” Def.’s Mot for Summ. J., ECF No. 79, Def.’s Mem of Law in Supp.

of its Mot. for Summ. J., ECF No. 79-1 [hereinafter Def.’s Mot.], at 11. The Secretary points to

two features of the CARES Act that he contends evince such congressional intent. First, he points

to the short statutory, 30-day timeline to distribute funds. Id. at 11–12. Second, he argues that the

statutory scheme, which does not require Treasury to publish to “whom it will be paying, its

methodology or the payment amounts” prior to disbursing the funds, makes clear Congress’s intent



                                                 8
that the Secretary’s decisions be insulated from review. Id. at 12. These arguments are refinements

of the Secretary’s prior assertion of judicial non-reviewability, but they fare no better.

       There is a “strong presumption that Congress intends judicial review of administrative

action.” Council for Urological Interests v. Sebelius, 668 F.3d 704, 708 (D.C. Cir. 2011) (quoting

Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)). That presumption can be

overcome if “congressional intent to preclude judicial review is fairly discernible from the

statutory scheme.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 390 (1984). But such a showing

entails a “heavy burden,” which must be carried by “clear and convincing evidence.” Dunlop v.

Bachowski, 421 U.S. 560, 567 (1975) (citation omitted), overruled on other grounds by Furniture

& Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers v. Crowley, 467

U.S. 526 (1984).

       A tight statutory deadline by itself is not sufficient to overcome the strong presumption in

favor of judicial review. See id. at 562 n.2 & 567 (holding that a decision by the Secretary of

Labor subject to a 60-day deadline is reviewable); In re FTC Corp. Patterns Report Litig., 432

F. Supp. 274, 289–90 (D.D.C. 1977) (rejecting argument that 45-day timeline for agency action

evinced Congress’[s] intent to preclude judicial review, and reasoning that “[a]t best, a court could

indirectly imply from Congress’s obvious desire to prevent undue delays an intent to protect the

[Secretary’s] actions from judicial scrutiny. This tenuous link, however, does not constitute clear

and convincing evidence of Congressional intent to preclude judicial review.”). The cases

Defendant cites to the contrary are easily distinguishable. In Morris v. Gressette, 432 U.S. 491

(1977), for example, the Court pointed to numerous features of the statute, including “the potential

severity of the . . . remedy, the statutory language, and the legislative history,” from which

“nonreviewability [could] fairly be inferred.” Id. at 501, 504 (citation omitted). No such additional



                                                  9
indicia are present here. Dalton v. Specter also is inapposite. There, four concurring Justices

found that a series of “tight and rigid deadlines” prescribed in a statutory scheme for military base

closings was an indication that Congress did not intend for judicial review of an individual closing

determination. 511 U.S. 462, 479 (1994) (Souter, J., concurring, joined by Blackmun, Stevens,

Ginsburg, JJ.). But there was also more at play in Dalton: the Justices observed that “the Act’s

text and intricate structure . . . plainly express congressional intent that action on a base-closing

package be quick and final, or no action be taken at all.” Id. That included not only a series of

“unbending” time deadlines, but also the speed with which the base closures were to occur if

approved and the disbanding of the base-closing Commission at the end of each decision round,

and its eventual automatic termination. See id. at 480–81. Here, in sharp contrast, Congress did

not tie the 30-day distribution period to any other deadline for congressional or agency action; and

there is no impending automatic expiration of authority to distribute the funds. 6 Nor can it be said

that the deadline is “unbending,” as the Secretary—independent of any litigation—did not begin

distributing the second tranche of funds until June 12, 2020, 47 days past the 30-day deadline, see

Def.’s Status Report, Agua Caliente Band, ECF No. 39; 42 U.S.C. § 801(b)(1). A stand-alone

deadline, even one of a mere 30 days, cannot without more overcome the strong presumption in

favor of agency review.

         Nor does the fact that Congress did not require the Secretary to identify aid recipients

before making payments indicate an intent to foreclose judicial review. The Secretary points to

no evidence that Congress even considered such a pre-publication requirement, let alone

consciously elected not to adopt one. The court cannot draw any inference of non-reviewability



         6
            At most, Title V mandates payment of funds for “fiscal year 2020,” which expires September 30, 2020.
42 U.S.C. § 801(b). That leaves sufficient time to litigate this matter to its conclusion, including possible expedited
appellate review.

                                                         10
from Congress’s failure to enact a provision that it did not even consider. The presumption of

reviewability therefore applies, and the Secretary has failed to defeat it.

                                                 IV.

       The court turns now to the merits. Recall, the CARES Act grants $8 billion in emergency

aid to “Tribal governments,” which the Act defines as “the recognized governing body of an Indian

Tribe.” 42 U.S.C. § 801(g)(5). “Indian Tribe,” in turn, “has the meaning given that term” under

ISDEAA. Id. § 801(g)(1). ISDEAA defines “Indian tribe” as:

               [A]ny Indian tribe, band, nation, or other organized group or
               community, including any Alaska Native village or regional or
               village corporation as defined in or established pursuant to the
               Alaska Native Claims Settlement Act (85 Stat. 688), which is
               recognized as eligible for the special programs and services
               provided by the United States to Indians because of their status as
               Indians.

25 U.S.C. § 5304(e). Plaintiffs argue that ANCs do not qualify for Title V funds for two reasons:

(1) ANCs do not meet ISDEAA’s definition of “Indian Tribe,” and (2) ANCs are not a “recognized

governing body” of an Indian tribe, nor do they have such a body. Though these arguments seem

straightforward at first blush, the parties have staked out varied approaches in addressing them.

       Whether ANCs are “Indian Tribes” under ISDEAA turns on how one reads the dependent

clause that appears at the end of the ISDEAA definition—“which is recognized as eligible for the

special programs and services provided by the United States to Indians because of their status as

Indians.” The court refers to this as the “eligibility clause.” According to the Confederated Tribes

Plaintiffs, the eligibility clause applies to each listed entity that comes before it, including most

critically “Alaska Native . . . regional or village corporations”—ANCs. See Confederated Tribes

Mot. for Summ. J. and Mem. of P. & A., ECF No. 77 [hereinafter Confederated Tribes Mot.], at




                                                 11
13 (citing 25 U.S.C. § 5304(e)). Because no ANC presently satisfies the eligibility clause, those

Plaintiffs say, none qualifies for CARES Act funds. Id. at 13–14.

       The Confederated Tribes Plaintiffs, however, are the only Plaintiffs that press this

interpretation. The Cheyenne River Sioux and Ute Plaintiffs (collectively, “Cheyenne River Sioux

Plaintiffs”) acknowledge that “ANCs can be treated as ‘Indian tribe[s]’ for limited purposes” under

ISDEAA. See Pls. Cheyenne River Sioux Tribe’s, Rosebud Sioux Tribe’s, Oglala Sioux Tribe’s,

Nondalton Tribal Council’s Arctic Village Council’s Native Village of Venetie Tribal

Government’s, Navajo Nation’s, & Ute Indian of the Uintah & Ouray Indian Reservation’s Mem.

in Supp. of Jt. Mot. for Summ. J., ECF No. 76-2 [hereinafter Cheyenne River Sioux Mot.], at 4.

Thus, there is a split among Plaintiffs as to whether ANCs qualify as “Indian Tribes” for purposes

of the CARES Act.

       Ironically, the Secretary agrees with the Confederated Tribe Plaintiffs that ANCs do not

satisfy, and never have satisfied, the eligibility clause; and yet he contends that ANCs qualify for

CARES Act funding as “Indian Tribes” under ISDEAA. Def.’s Mot. at 1. The Secretary asserts

that the ISDEAA definition must be read to, in effect, exempt ANCs from satisfying the eligibility

clause. That interpretation, the Secretary claims, is faithful to congressional design, because the

Confederated Tribes’ alternative reading, if accepted, would render the listing of ANCs in the

ISDEAA definition surplusage and defeat Congress’s intent to make ANCs eligible for ISDEAA

self-determination contracts. The ANC-Intervenors, by contrast, take a “heads-I-win, tails-I-win”

approach to reading the ISDEAA definition. They say that ANCs do satisfy the ordinary meaning

of the eligibility clause, because they are “eligible for the special programs and services provided

by the United States to Indians because of their status as Indians.” Mem. of P. & A. in Supp. of

Intervenor-Defs.’ Mot. for Summ. J., ECF No. 78-1 [hereinafter Intervenors’ Mot.], at 47;



                                                12
Intervenor-Defs.’ Resp. in Opp’n to Pls.’ Cross-Mots. for Summ. J., ECF No. 86 [hereinafter

Intervenors’ Opp’n], at 5. The Secretary expressly rejects this reading, contending that the

eligibility clause conveys the principle of federal recognition of Indian tribes, which ANCs as

corporations cannot satisfy (the Confederated Tribe Plaintiffs agree). See Def.’s Combined Opp’n

& Reply in Supp. of Mot. for Summ. J., ECF No. 88 [hereinafter Def.’s Opp’n], at 4 n.3;

Confederated Tribes Mot. at 14; Confederated Tribes Pls.’ Reply in Supp. of its Mot. for Summ.

J. & Resp. in Opp’n to Defs.’ Mots. for Summ. J., ECF No. 87 [hereinafter Confederated Tribes

Opp’n], at 7–8. No matter, say the ANC-Intervenors. If their primary reading is incorrect, they

then embrace the Secretary’s reading, which exempts ANCs from the eligibility clause.

See 6/12/2020 Hr’g Tr., ECF No. 94, at 88–89. Either way, according to the ANC-Intervenors,

they qualify as “Indian Tribes” under ISDEAA and therefore are eligible for Title V funds. Id.

       There is greater alignment among the parties on the second question: whether an ANC

qualifies as a “Tribal government” for the purposes of the CARES Act. The Cheyenne River Sioux

Plaintiffs urge the court not to get bogged down in the morass of whether ANCs qualify as “Indian

Tribes” because, in their view, “ANCs are not Tribal governments under any measure.” Cheyenne

River Sioux Mot. at 2. The Confederated Tribes Plaintiffs agree, though this is their secondary

position. Confederated Tribes Mot. at 12–13. The Secretary and the ANC-Intervenors see eye-

to-eye on this question, too. They agree that an ANC’s board of directors qualifies as a “recognized

governing body of an Indian tribe” for purposes of the CARES Act. Def.’s Mot. at 34; Intervenors’

Mot. at 38–39. Their argument, as will be seen below, relies on a similar definitional phrase

contained in ISDEAA, “tribal organization,” that appears nearly verbatim as the CARES Act’s

definition of “Tribal government,” compare 25 U.S.C. § 5304(l) (defining “tribal organization” to

mean in part “the recognized governing body of any Indian tribe”) with 42 U.S.C. § 801(g)(5)



                                                13
(defining “Tribal government” to mean “the recognized governing body of an Indian Tribe”),

which they assert encompasses an ANC’s board of directors for ISDEAA contracting purposes.

Def.’s Mot. at 30–31, 33; Intervenors’ Mot. at 38–39.

       As the above summation shows, this case does not present easy, straightforward questions

of statutory interpretation. The court has wrestled with them. Each side has marshaled an

impressive array of textual, historical, and practical evidence, all of which must be viewed against

the unique treatment of Native Alaskans by Congress and Executive Branch agencies. Though the

court ruled at the preliminary injunction stage that ANCs likely did not qualify for CARES Act

funds, as explained below, the court now concludes otherwise: ANCs qualify as “Indian Tribes,”

and their boards of directors are “recognized governing bod[ies],” for purposes of the CARES Act.

Accordingly, the court holds that ANCs are eligible for Title V funding.

       A.      “Indian Tribe” under ISDEAA

       The parties agree that, as a matter of pure grammar, the eligibility clause contained in the

definition of “Indian Tribe” in ISDEAA and the CARES Act applies to ANCs. See Hr’g Tr. at

54–55; Intervenors’ Opp’n at 4–5; Confederated Tribes Mot. at 13–14. The eligibility clause

plainly modifies each of the nouns that precedes it, including ANCs. The parties diverge, however,

on whether that grammatical structure both begins and ends the statutory interpretation debate.

       Each side comes armed with its own preferred canon of statutory construction. The

Confederated Tribes Plaintiffs contend that the series-qualifier canon of statutory interpretation

settles this case. See Confederated Tribes Mot. at 13–14. Under that canon, “‘[w]hen there is a

straightforward, parallel construction that involves all nouns or verbs in a series,’ a modifier at the

end of the list ‘normally applies to the entire series,’” Lockhart v. United States, 136 S. Ct. 958,

970 (2016) (Kagan, J., dissenting) (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING



                                                  14
LAW: THE INTERPRETATION OF LEGAL TEXTS 147 (2012) (SCALIA & GARNER)). Relatedly, under

the last antecedent rule, “a limiting clause or phrase . . . should ordinarily be read as modifying

only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003).

Applying either of these canons dictates that “any Alaska Native village or regional or village

corporation” qualifies as an “Indian tribe” only if it is “recognized as eligible for the special

programs and services provided by the United States to Indians because of their status as Indians,”

25 U.S.C. § 5304(e); see also Confederated Tribes Mot. at 13 n.8. Because no ANC is so

recognized as eligible for the special programs and services provided by the United States, the

argument goes, no ANC is an “Indian tribe” under ISDEAA.

       The Secretary, on the other hand, urges the court to look beyond the statute’s grammatical

structure. He argues that a blind application of the series-qualifier canon would violate the

“‘cardinal principle’ of statutory interpretation”—that is, “to adopt a reading that gives effect to

every term in the statute.” Def.’s Opp’n at 7 (quoting Parker Drilling Mgmt. Servs., Ltd. v.

Newton, 139 S. Ct. 1881, 1890 (2019)). Here, according to the Secretary, Congress expressly

inserted ANCs into the statutory text, despite knowing that ANCs could not satisfy the eligibility

clause because of their status as for-profit corporations. Subjecting ANCs to the eligibility clause

therefore would negate their addition, rendering the inclusion of “Alaska Native [ ] regional or

village corporation” surplusage.

       Although a close question, the court is now convinced that, in 2020 when Congress passed

the CARES Act, it could not have intended the eligibility clause to apply ANCs. Several

considerations lead the court to this result. First, while the Confederated Tribes Plaintiffs

emphasize the importance of the series-qualifier canon, the court’s proper role is not to apply a

single canon of statutory construction—“canons of construction are no more than rules of thumb



                                                15
that help courts determine the meaning of legislation,” Conn. Nat’l Bank v. Germain, 503 U.S.

249, 253 (1992). The court must interpret the statute as whole to give effect to congressional

intent. Parker Drilling, 139 S. Ct. at 1890. Consequently, the court cannot simply disregard the

inclusion of ANCs in the definition that Congress chose for purposes of the CARES Act. Second,

the court’s interpretation is consistent with ISDEAA’s legislative history, which reveals that

Congress took pains to include ANCs in the ISDEAA definition. Third, to the extent the competing

canons of construction give rise to ambiguity, Skidmore deference to the BIA’s interpretation of

ISDEAA is warranted, given the reasonableness of the agency’s approach and its longstanding

adherence to it. The court discusses each of these reasons below. Because the court reads the

eligibility clause as inapplicable to ANCs, the court does not address the ANC’s alternative

argument that they satisfy the ordinary meaning of the eligibility clause.

                                                 1.

       Applying the series-qualifier canon in this case does not resolve the statutory interpretation

debate. “[A]s with any canon of statutory interpretation,” the series-qualifier canon “‘is not an

absolute and can assuredly be overcome by other indicia of meaning.’” Lockhart, 136 S. Ct. at

963, 965 (quoting Barnhart, 540 U.S. at 26). Indeed, as the Tenth Circuit has observed, the series-

qualifier canon, “perhaps more than most canons, is subject to defeasance by other canons—that

is, it is perhaps more prone than most to have its effect nullified by other canons.” Jordan v.

Maxim Healthcare Servs., Inc., 950 F.3d 724, 745 (10th Cir. 2020) (cleaned up); see also SCALIA

& GARNER at 150 (“Perhaps more than most of the other canons, [the series-qualifier canon] is

highly sensitive to context.”).

       Such is the case here, where the series-qualifier canon runs headlong into another canon of

interpretation: the rule against superfluity. It is “the ‘cardinal principle’ of interpretation that



                                                16
courts ‘must give effect, if possible, to every clause and word of a statute.’” Parker Drilling, 139

S. Ct. at 1890 (quoting Loughrin v. United States, 573 U. S. 351, 358 (2014)). As a result, courts

are “reluctant to treat statutory terms as surplusage in any setting.” Duncan v. Walker, 533 U.S.

167, 174 (2001) (cleaned up). Such reluctance is particularly apt here, where adopting Plaintiffs’

construction would render Congress’s purposeful inclusion of ANCs in the ISDEAA definition

“wholly superfluous.”     Id. at 174.    ANCs would become “wholly superfluous” under the

Confederated Tribes’ preferred reading, because all agree (except the ANCs themselves) that

ANCs never have, and almost certainly never will, satisfy the eligibility clause. ANCs cannot be

recognized “as eligible for the special programs and services provided by the United States to

Indians because of their status as Indians.” 25 U.S.C. § 5304(e) (emphasis added). ANCs, after

all, are for-profit corporations established by Congress and recognized under Alaska law, and thus

do not enjoy “status as Indians.” Indeed, under the Alaska Native Claims Settlement Act, the

statute that established ANCs by extinguishing all aboriginal claims to Alaska land, the transfer of

land to the new, state-chartered private business corporations “was without any restraints on

alienation or significant use restrictions” precisely because Congress intended to avoid “‘any

permanent racially defined institutions, rights, privileges, or obligations.’” Alaska v. Native Vill.

of Venetie Tribal Gov’t, 522 U.S. 520, 532–33 (1998) (quoting 43 U.S.C. § 1601(b)). Thus, while

the first ANC shareholders were required to be Alaska Natives, the corporations could immediately

convey former reservation lands and ANC stock to non-Natives. Id. at 533; 43 U.S.C. § 1606(h).

It cannot be said, then, that ANCs enjoy “status as Indians.”

       Moreover, both the Secretary and the Confederated Tribes read the eligibility clause as

conveying the principle of federal recognition, which confers upon tribes a distinct political and

legal status in relation to the United States. See 6/12/2020 Hr’g Tr. at 60; Confederated Tribes



                                                 17
Mot. at 14–15. The Confederated Tribes contend that ISDEAA’s eligibility clause must be read

in pari materia with the nearly identical language in the Federally Recognized Indian Tribe List

Act of 1994, Pub. L. No. 103-454, 108 Stat. 4791, or List Act, which directs the Secretary of

Interior to publish a “list of all Indian tribes that the Secretary recognizes to be eligible for the

special programs and services provided by the United States to Indians because of their status as

Indians” (quoting 25 U.S.C. § 5131(a))). No ANC has ever been federally recognized by the United

States as an Indian tribe under the List Act because no ANC is “recognize[d] to be eligible for the

special programs and services provided by the United States to Indians because of [its] status as

Indians.” The court agrees that the nearly identically worded eligibility clauses in both statutes

are terms of art that convey the principle of federal recognition, and thus reading the eligibility

clause to apply to ANCs would render as surplusage their listing in the ISDEAA definition of

“Indian tribe.”

         The Confederated Tribes Plaintiffs attempt to sidestep this superfluity problem by asserting

there is no such problem to begin with. They contend that the disjunctive nature of the clause in

which ANCs appear—which they refer to as the “Alaska clause”—“means that the clause has

effect as long as ‘any Alaska Native village or regional or village corporation’ satisfies the terms

of the eligibility clause, and according to the Secretary of the Interior’s own listing there are 229

Native villages[7] that do.” Confederated Tribes Opp’n at 8. The court expressed a similar logic

in its preliminary injunction opinion, writing that “[t]he possibility that ANCs might not qualify

under the eligibility clause is hardly fatal to carrying out Congress’s purpose under ISDEAA . . .

[because] [Alaska Native villages] are also in the statute [and] [t]hey can and do satisfy the


         7
           Alaska Native villages are not corporations. They are sovereign, political entities exercising governmental
authority, much like “‘Indian tribes,’ as that term is commonly used to refer to Indian entities in the contiguous
48 states.” See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian
Affairs, 58 Fed. Reg. 54,364, 54,365 1993 WL 420646 (October 21, 1993).

                                                         18
eligibility clause.” Confederated Tribes, 2020 WL 1984297 at *11. The court is no longer

convinced of this rationale. ISDEAA says that “‘Indian tribe’ means any . . . organized group or

community, including any Alaska Native [1] village or [2] regional [corporation] or [3] village

corporation as defined in or established pursuant to [ANCSA].” 25 U.S.C. § 5304(e) (emphasis

added). Congress thus intended for any of the nouns in the Alaska clause to satisfy the definition,

and subjecting any of those nouns to a requirement that it cannot meet—as Plaintiffs seek to do—

would still turn that noun into surplusage. The series-qualifier canon therefore must give way in

this case to the rule against superfluity. 8

         Plaintiffs’ cited authorities are not to the contrary. Plaintiffs rely on Chickasaw Nation v.

United States, 534 U.S. 84 (2001), and King v. Burwell, 135 S. Ct. 2480 (2015), for the proposition

that “the canon against surplusage should [not] be elevated to Holy Grail status and operate to

subvert the plain meaning of the statutory text.” Confederated Tribes Opp’n at 10. But these cases

are readily distinguishable. Chickasaw Nation concerned a provision of the Indian Gaming

Regulatory Act that, like ISDEAA, featured an “including” clause (akin to the Alaska clause)

followed by a limiting clause (akin to the eligibility clause). 534 U.S. at 86–87. The Court there

rejected the plaintiffs’ reliance on the canon against surplusage and instead found that the limiting

clause applied to the words before it—to find otherwise would “seriously rewrit[e] the language

of the rest of the statute.” Id. at 89. But critical to that conclusion was the Court’s reasoning that

the troublesome language in the statute—a cross-reference to another chapter of the Internal

Revenue Code—was “simply a drafting mistake, a failure to delete an inappropriate cross-

reference in the bill that Congress later enacted into law.” Id. at 91.


         8
           The Confederated Tribes Plaintiffs also suggest that applying the eligibility clause to ANCs does not render
them superfluous under ISDEAA, because in 1975, when Congress passed the statute, it was an open question whether
ANCs could satisfy the eligibility clause. Confederated Tribes Mot. at 31. The court addresses this argument in the
following section.

                                                         19
       The Court struck a similar chord in King v. Burwell. That case involved the Affordable

Care Act, which the Court observed “contains more than a few examples of inartful drafting” and,

by virtue of how the legislation was enacted, “does not reflect the type of care and deliberation

that one might expect of such significant legislation.” 135 S. Ct. at 2492. In light of these

shortcomings, the Court found “specifically with respect to this Act, rigorous application of the

[surplusage] canon does not seem a particularly useful guide to a fair construction of the statute.”

Id.

       The reasons for discounting the surplusage canon that were present in Chicksaw Nation

and King v. Burwell simply are not present here. There is nothing to suggest that Congress’s

inclusion of ANCs in the ISDEAA definition of “Indian tribe” was a drafting error; nor is there

any reason to question the Legislative Branch’s diligence in drafting the definition. To the

contrary, as discussed4 further below, the definition’s legislative history reflects a conscious

decision on the part of Congress to make ANCs eligible to contract with the United States to deliver

public services to Alaska Native populations. Thus, while the “preference for avoiding surplusage

constructions is not absolute,” Lamie v. United States Trustee, 540 U.S. 526, 536 (2004), there is

no good reason to abandon it here.

       Admittedly, reading the ISDEAA definition as the Secretary posits gives rise to an odd

grammatical result. No one disputes that an “Alaska Native village”—the first entity listed in the

Alaska clause—must satisfy the eligibility clause to qualify as an “Indian tribe” under ISDEAA.

See Confederated Tribes, 2020 WL 1984297 at *11. An Alaska Native village that is not

“recognized as eligible for the special programs and services provided by the United States to

Indians because of their status as Indians” cannot contract with a federal agency under ISDEAA.

That reading, however, creates the strange result that the eligibility clause modifies the first in the



                                                  20
series of three nouns that comprises the Alaska clause, but not the last two. That is an unnatural

reading, to be sure. The court’s primary goal, however, is to discern the “intent embodied in the

statute Congress wrote.” Chicksaw Nation, 534 U.S. at 94. Treating ANCs as not subject to the

eligibility clause achieves that purpose. Congress expressly included ANCs in the definition of

“Indian tribe” under ISDEAA to make them eligible to enter into self-determination contracts with

federal agencies. By incorporating wholesale ISDEAA’s definition of “Indian Tribes” into the

CARES Act, Congress declared ANCs to be eligible for Title V emergency relief funds.

                                                 2.

       ISDEAA’s drafting history lends support to this conclusion. Neither the Senate’s nor the

House of Representative’s initial versions of the ISDEAA definition of “Indian tribe” included

ANCs, though each included the eligibility clause. See H.R. 6372, § 450b(b), 93rd Cong., 1st

Sess. (1973); S. 1017, 93d Cong., 2d Sess. (1974), 120 Cong. Rec. 2813-19; see also Cook Inlet

Native Ass’n v. Bowen, 810 F.2d 1471, 1474–75 (9th Cir. 1987) (discussing ISDEAA’s legislative

history). The House Committee on Interior and Insular Affairs, to whom the Senate bill was

referred, “amended the definition of ‘Indian tribe’ to include regional and village corporations

established by the Alaska Native Claims Settlement Act.” H.R. Rep. 93-1600; 120 Cong. Rec.

40252 (Dec. 16, 1974). The amended definition that became law, and remains the same today,

thus reads, “including any Alaska Native village or regional or village corporation as defined in or

established pursuant to the Alaska Native Claims Settlement Act.” See Pub. L. 93-638 § 4(b), 88

Stat. 2203, 2204 (1975) (codified at 25 U.S.C. § 5304(e)). Importantly, not only did the amended

definition expressly include ANCs, the latter portion of the clause—“established pursuant to

[ANCSA]”—applies only to ANCs. As the Secretary points out, while “native villages” are

defined in ANCSA, only Alaska regional and village corporations are “established” by it. See



                                                21
Def.’s Opp’n at 5 & n.5 (citing H.R. Rep. 93-1600; 120 Cong. Rec. 40252 (Dec. 16, 1974)). That

Congress went out of its way to add ANCs to the statutory definition of “Indian tribe” is compelling

evidence that Congress intended ANCs to meet that definition. It would be an odd result indeed

for Congress to include ANCs in one breath only to negate their inclusion in the very next breath

through the eligibility clause.

       The Confederated Tribes Plaintiffs endeavor to explain this ostensible statutory

contradiction by positing that Congress “left the door open” for ANCs to satisfy the eligibility

clause in ISDEAA, and only “over time” has the Secretary of the Interior declared that ANCs are

not eligible for the special programs and services provided by the United States to Indians because

of their status as Indians. Confederated Tribes Mot. at 31. In support, Plaintiffs point to two

comments submitted in 1977—two years after Congress passed ISDEAA—to proposed BIA

regulations regarding the development of uniform procedures for the recognition of Indian tribes.

Confederated Tribes Opp’n at 20–21.         These comments, submitted by two Alaska Native

corporations, suggest some uncertainty as to whether ANCs could satisfy the eligibility clause.

See id. But these isolated comments, from private enterprises, have little to no probative value in

determining whether Congress in fact “left the door open” for ANCs to satisfy the eligibility clause

when it passed ISDEAA. There is simply no legislative history before the court to support the

notion that Congress in 1975 believed ANCs could ever meet the eligibility clause.

       Moreover, whether ANC eligibility remained an unsettled question in 1975 is ultimately a

distraction. The issue before the court is whether Congress meant for ANCs to be eligible for

CARES Act relief in 2020. The Confederated Tribes Plaintiffs concede that by 1978, when the

BIA proposed revised regulations regarding the recognition of Indian tribes that expressly

excluded ANCs, “the door was closed on [the] possibility” that ANCs could meet the eligibility



                                                22
clause. Confederated Tribes Opp’n at 21–22; 6/12/2020 Hr’g Tr. at 21. And certainly by 2020,

Congress understood that no ANC could satisfy the eligibility clause, as none had done so since

ISDEAA’s inception. 6/12/20202 Hr’g Tr. at 59–60. Thus, by incorporating the ISDEAA

definition into the CARES Act, Congress must have known that it had selected a definition of

“Indian Tribe” that expressly encompasses ANCs, notwithstanding their falling outside the

definition’s eligibility clause. 9 Congress therefore intended to make Title V funds available to

ANCs.

                                                           3.

         The court also concludes that, to the extent there is ambiguity in the definition of “Indian

tribe,” the Secretary’s position is entitled to Skidmore deference. Under Skidmore v. Swift & Co.,

the weight a court affords to an agency interpretation “will depend upon the thoroughness evident


         9
            The parties tussle over what inference can be drawn, if any, from Congress’s selection of the ISDEAA
definition of “Indian tribe,” as opposed to some other statutory definition of “Indian tribe” appearing in the U.S. Code.
See Intervenors’ Mot. at 28; Confederated Tribes’ Opp’n 12. The answer is none. As the parties point out, the
U.S. Code contains multiple different definitions of “Indian tribe.” Some of those definitions expressly include ANCs.
See, e.g., 20 U.S.C. § 1401(13) (defining “Indian tribe” as “any Federal or State Indian tribe, band, rancheria, pueblo,
colony, or community, including any Alaska Native village or regional village corporation (as defined in or established
under the Alaska Native Claims Settlement Act. . . .)”). Some do not. See, e.g., 25 U.S.C. § 5130(2) (“The term
‘Indian Tribe’ means any Indian or Alaska Native tribe, band, nation, pueblo, village or community that the Secretary
of the Interior acknowledges to exist as an Indian Tribe.”). Some expressly exclude ANCs. See, e.g., 25 U.S.C. §
3501(4)(B) (“For the purpose of paragraph (12) and sections 3503(b)(1)(C) and 3504 of this title, the term ‘Indian
Tribe’ does not include any Native Corporation.”). Some expressly include them. Of those definitions that expressly
include ANCs, some incorporate a similarly worded eligibility clause. See, e.g., 25 U.S.C. § 4103(13)(B) (defining
“federally recognized tribe” as “any Indian tribe, band, nation, or other organized group or community of Indians,
including any Alaska Native village or regional or village corporation as defined in or established pursuant to the
Alaska Native Claims Settlement Act, that is recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians pursuant to the Indian Self-Determination and Education
Assistance Act”). Others do not. See, e.g., 16 U.S.C. § 470bb(5) (defining “Indian tribe” as “any Indian tribe, band,
nation, or other organized group or community, including any Alaska Native village or regional or village corporation
as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. §§ 1601-
1629h]”).
          All this proves is that Congress, when it passed the CARES Act, had other statutory definitions available to
it that could have provided greater clarity about the eligibility of ANCs. Unfortunately, this availability sheds no
useful light on the dispute at hand. The Alaska Federation of Natives amicus suggest a neat dichotomy among the
various statutory definitions: Congress includes ANCs within the definition of “Indian tribe” when the statute concerns
economic legislation, but not when it concerns tribal self-governance, and the CARES Act falls into the former
category. Amicus Br. of the Alaska Federation of Natives, ECF No. 81, at 13–14. The court need not pass on the
merits of these proposed groupings, as the ordinary tools of statutory construction suffice to reach an answer.

                                                          23
in its consideration, the validity of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to persuade, if lacking power to

control.” 323 U.S. 134, 140 (1944). Ultimately, a court upholds an agency determination under

Skidmore to the extent is has “power to persuade.” Christensen v. Harris Cty., 529 U.S. 576, 587

(2000) (internal quotation marks and citation omitted); see also Davis v. United States, 495 U.S.

472, 484 (1990) (“[W]e give an agency’s interpretations . . . considerable weight where they

involve the contemporaneous construction of a statute and where they have been in long use.”).

        The position that the Secretary advances in this case is neither new nor cut from whole

cloth. The Department of Interior, which administers the federal government’s affairs with Indian

tribes, has long taken the position that ANCs qualify as “Indian Tribes” for purposes of ISDEAA

and therefore are permitted to contract with federal agencies. In 1976, the year after ISDEAA was

enacted, the Assistant Solicitor for Indian Affairs, Charles M. Soller, issued a memorandum to the

Commissioner of Indian Affairs that evaluated whether ANCs meet the ISDEAA definition of

“Indian tribe.”    J.A., ECF No. 90-1, at 610–13 [hereinafter Soller Mem.] at 611.                  The

Commissioner had asked Soller to address “whether [Alaska Native] village and regional

corporations are within the scope of” ISDEAA. Id. at 610. The question arose due to the

“qualifying language” in the statute’s definition of “Indian tribe,” i.e., the eligibility clause. Id. at

611. Soller concluded that, “[s]ince both regional and village corporations find express mention

in the definition, customary rules of statutory construction would indicate that they should be

regarded as Indian tribes for purposes of application of this Act.” Id. at 610. Soller acknowledged

that the eligibility clause added “qualifying language,” and he observed that “profit-making

regional and village corporations have not heretofore been recognized as eligible for [Bureau of




                                                   24
Indian Affairs] programs and services which are not provided for by the terms of the Settlement

Act.” Id. at 611. But, Soller concluded,

                  if the quoted language operates to disqualify [ANCs] from the
                  benefits of [ISDEAA], then their very mention in section 4(b) is
                  superfluous. Therefore, we think the better view is that Congress
                  intended the qualifying language not to apply to regional and village
                  corporations but to pertain only to that part of the paragraph which
                  comes before the word “including.” Accordingly, regional and
                  village corporations are within the scope of the Act.

Id. 10

         Thus, the argument against surplusage that the Secretary advances in this litigation has a

long historical antecedent. It has been the position of the agency in charge of Indian affairs for

nearly 45 years. Although the analysis is brief, Soller recognized the interpretive challenge

presented by Congress’s drafting of the ISDEAA definition, identified the competing canons of

statutory construction, and evaluated those canons in light of contemporaneous understandings of

the statutory terms used and Congress’s intent. The Soller Memorandum therefore has the “power

to persuade.” Christensen, 529 U.S. at 587 (citation omitted).

         The Confederated Tribes Plaintiffs seek to undermine the force of the Soller Memorandum

by faulting its failure to consider the disjunctive nature of the Alaska clause. See Confederated

Tribes Opp’n at 18. But, as explained, the use of the disjunctive does nothing to save the clause

from superfluity. Soller’s ultimate reading of the statute is reasonable. This was the conclusion

of the only appellate court to have considered whether ANCs qualify as “Indian Tribes” for

purposes of ISDEAA. See Bowen, 810 F.2d at 1471. Although a single appellate decision cannot

amount to a judicial consensus that the court can presume Congress knew of and endorsed when


         10
             Soller appears to have misspoken in one respect. To apply the eligibility clause only to those words that
appear “before the word ‘including’” would mean that the eligibility clause does not apply to “Alaska Native
village[s].” But no one then, or now, takes the position that an Alaska Native village can contract under ISDEAA
unless it satisfies the eligibility clause. See Confederated Tribes, 2020 WL 1984297 at *11.

                                                         25
it incorporated the ISDEAA definition into the CARES Act, see Confederated Tribes, 2020 WL

1984297, at *12, Bowen lends additional persuasive force to the agency’s longstanding view that

ANCs are “Indian tribes” under ISDEAA. Thus, to the extent that the ISDEAA definition of

“Indian tribe” contains any ambiguity, Skidmore counsels affording deference to the agency’s

interpretation.

         The Confederated Tribes Plaintiffs go to great lengths to cast the Department of Interior’s

position on ANCs under ISDEAA as inconsistent and lacking clarity. See Confederated Tribes

Opp’n at 19–25. The court need not take on this complex history. For present purposes, it suffices

to say that the Confederated Tribes have identified no point in time in last four decades in which

the Department of Interior has not treated ANCs as “Indian Tribes” for purposes of ISDEAA. 11


           11
              The most interesting evidence of different agency treatment of ANCs is that, for a short period of time,
from 1988 to 1994, the Department of Interior actually identified ANCs alongside federally recognized tribes on its
list of “Indian Entities Recognized and Eligible to Receive Services from [BIA].” Confederated Tribes Mot. at 39
(citing 53 Fed. Reg. 52,829–02, 52,832–33 (Dec. 29, 1988)). The BIA removed ANCs from the 1994 version of the
list but in so doing reaffirmed ANCs’ status as “Indian tribes” for purposes of ISDEAA. The BIA observed that “a
number of non-tribal Native entities in Alaska that currently contract with or receive services from the Bureau of
Indian Affairs pursuant to specific statutory authority, including ANCSA village and regional corporations and various
tribal organizations,” were no longer on the list, but that their non-inclusion on the list “does not affect the continued
eligibility of the entities for contracts and services.” Indian Entities Recognized and Eligible to Receive Services from
the United States Bureau of Indian Affairs, 58 FR 54,364, 54,366, 1993 WL 420646 (October 21, 1993) (emphasis
added). ANC’s on-and-off-again status on the BIA’s list, then, only indicates that the BIA struggled with how to
properly characterize Alaska entities, but has always acknowledged their continued eligibility for certain contracts,
including under ISDEAA.
          This understanding comports with the 1977 Report submitted to Congress by the American Indian Policy
Review Commission. The 1977 Report made clear that while Alaska Native village and regional corporations are not
“repositories of tribal sovereignty,” they should not “be excluded from the benefits of existing and future legislation
and programs designed to promote the development of Native peoples.” Def.’s Mot., Ex. 1, ECF No. 79-2, at 495.
While the Confederated Tribes Plaintiffs discount the 1977 Report as simply one report submitted to Congress, with
“no indication that Congress ever agreed with these cursory and erroneous conclusions or has taken any action in
reliance on them,” Confederated Tribes Opp’n at 20, the court notes that the Report’s author, the American Indian
Policy Review Commission, was established through Congressional resolution and was composed of three senators,
three members of the House of Representatives, and five Indian leaders. American Indian Policy Review Commission,
Final Report (May 17, 1977) (Appendix A (“How the Commission Did Its Work”) at 3, available at
https://catalog.hathitrust.org/Record/011340209. Further, the investigations that contributed to the Report were
conducted by eleven task forces “each composed of three members selected from among the leading authorities in
their respective fields of expertise in Indian affairs.” Id. The Commission’s Report, “a product of Indian participation,
represent[s] ‘a compendium of information on a scale heretofore unavailable to the Federal Government’” and
“represent[s] the most comprehensive review of Indian policies and programs ever conducted.” Id. at 4. See also
Cheyenne River Sioux Mot. at 16 n.14 (explaining that the Department of the Interior “still relies [on] this [1977]


                                                           26
        As noted at the outset of this discussion, the Cheyenne River Sioux Plaintiffs do not dispute

that ANCs qualify as “Indian tribes” under ISDEAA. But they do seek to diminish their role and

status, explaining that ANCs have “limited tribal status” under certain narrow circumstances.

See Cheyenne River Sioux Mot. at 14–17. Relying on agency contracting priority policies, they

contend that “ANCs may qualify under ISDEAA’s definition of ‘Indian tribe’ only as a stop-gap

to ensure critical services are provided to Alaska Natives in regions where there are no actual

federally recognized Tribal governments, or where Tribal governments choose to compact with

ANCs to provide services under ISDEAA.” Id. at 14. The court has no reason to doubt the

accuracy of that characterization. But ANCs’ status as a contracting partner of “last resort” only

underscores that ANCs are nevertheless eligible for ISDEAA contracts. For definitional purposes,

ANCs are not considered “Indian tribes” only as a last resort under ISDEAA; they are always

“Indian tribes.” The same thus holds true under the CARES Act.

                                                        4.

        Before moving on, the court must address some of the reasons it set forth in its preliminary

injunction opinion when ruling that Plaintiffs were likely to succeed on the merits. Of course, the

“findings of fact and conclusions of law made by a court granting a preliminary injunction are not

binding at trial on the merits,” see Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981), and the

additional briefing in this case has convinced the court to change its mind.

        First, the court described the Secretary’s reading of ISDEAA as “counter-textual.”

Confederated Tribes, 2020 WL 1984297, at *11. The court no longer ascribes to that view for the

reasons already discussed.           Second, the court deemed inconsistent and unexplained the



Report”). Thus, the court has no reason to doubt the accuracy of the 1977 Report generally and considers the Report
as providing some evidence that, close to the time of IDEAA’s enactment, Congress understood ISDEAA to treat
ANCs as “eligible” Indian tribes.

                                                        27
government’s position taken in other cases, but not here, that “the definition of ‘Indian tribe’ in

various federal statutes must be read in conjunction with the List Act. In other words, unless the

entity or group appears on the Interior Secretary’s List, it does not qualify as an ‘Indian tribe.’”

Id. at *12–13 (citing Wyandot Nation of Kan. v. United States, 858 F.3d 1392, 1396, 1397–98

(Fed. Cir. 2017); Slockish v. U.S. Fed. Highway Admin., 682 F. Supp. 2d 1178, 1202 (D. Or.

2010)). As the Secretary now points out, Wyandot and Slockish were cases that did not involve

ANCs but entities claiming tribal status even though not federally recognized. Def.’s Mot. at 19–

20. It was therefore appropriate in those cases for the government to insist on identification on the

Interior Department’s List, whereas the same insistence is not necessary here, because ANCs are

already treated as “Indian tribes” for purposes of ISDEAA. Finally, the court reasoned that

“Congress’s adoption of the ISDEAA definition cannot be divorced from actual agency practice

under ISDEAA, which seemingly is to contract with ANCs only, if at all, with tribal consent or as

a last resort.” Id. at *13. The flaw in that logic is now apparent. Even if actual agency practice is

to rarely contract with ANCs to deliver services under ISDEAA, the fact remains that ANCs are

“Indian tribes” for purposes of ISDEAA contracting eligibility.                        By importing ISDEAA’s

definition into the CARES Act, Congress carried forward that same treatment. 12

                                                       * * *

         Accordingly, the court holds that Alaska Native village and regional corporations meet

ISDEAA’s definition of “Indian tribe,” and therefore ANCs qualify as “Indian tribes” for the

purposes of CARES Act funding.



         12
             The decision whether to award ANCs Title V funds in proportion to their status as a service provider of
“last resort” is an allocation determination that rests squarely within the broad discretion that Congress vested in the
Secretary. See generally Prairie Band Potawatomi Nation v. Mnuchin, No. 20-cv-1491 (APM), 2020 WL 3402298,
at *1–2 (D.D.C. June 11, 2020) (holding that the Secretary’s selected allocation method under Title V of the CARES
Act is an unreviewable discretionary agency action under the APA).

                                                          28
       B.      “Recognized Governing Bodies” under ISDEAA

       Having concluded that ANCs qualify as “Indian tribes” under ISDEAA, the court now

turns to the second question: Are ANCs “recognized governing bod[ies],” or do they have such

bodies? Remember, Title V provides that the Secretary shall make payments only to “the

recognized governing bod[ies]” of Indian Tribes. See 42 U.S.C. § 801(g)(5). The parties dispute

whether “recognized” is a legal term of art meaning “federally recognized”—in which case, only

federally recognized tribes, and not ANCs, meet the definition—or whether it carries an ordinary

meaning. Confederated Tribes Mot. at 19; Cheyenne River Sioux Opp’n at 7–8; Def.’s Opp’n at

31–32; Intervenors’ Opp’n. at 16–17. They also dispute whether “governing body” refers to

“government status or attributes of sovereignty,” see Cheyenne River Sioux Mot. at 4, or whether

it “simply references the entity or individuals authorized to govern the organization in its charter

or other organizing documents,” Intervenors’ Opp’n at 15.

       In evaluating the parties’ arguments, ISDEAA once more serves as the starting point.

ISDEAA authorizes the federal government to contract not with an Indian tribe, but with a tribal

organization, to deliver public services. 25 U.S.C. § 5321. ISDEAA defines “tribal organization”

in two ways: (1) “the recognized governing body of any Indian tribe”; and

               (2) any legally established organization of Indians which is
               controlled, sanctioned, or chartered by such governing body or
               which is democratically elected by the adult members of the Indian
               community to be served by such organization and which includes
               the maximum participation of Indians in all phases of its activities:
               Provided, That in any case where a contract is let or grant made to
               an organization to perform services benefiting more than one Indian
               tribe, the approval of each such Indian tribe shall be a prerequisite
               to the letting or making of such contract or grant.

25 U.S.C. § 5304(l). The first definition of “tribal organization” should ring familiar as Congress

used almost the same exact words to define “Tribal government” for purposes of the CARES Act.



                                                29
Compare id. with 42 U.S.C. § 801(g)(5) (“The term ‘Tribal government’ means the recognized

governing body of an Indian Tribe.”). The ISDEAA definition of “tribal organization” is therefore

instructive in understanding the term “Tribal government” under the CARES Act. See Branch v.

Smith, 538 U.S. 254, 281 (2003) (explaining that “courts do not interpret statutes in isolation, but

in the context of the corpus juris of which they are a part”).

       All parties, even the Confederated Tribe Plaintiffs, concede that ANCs may enter into

ISDEAA contracts. See Confederated Tribes Mot. at 36 (describing ANC contracting under

ISDEAA as occurring in “exceptional” or “narrow” circumstances). Thus, to enjoy such status,

ANCs, or some constituent part of them, necessarily must meet at least one of ISDEAA’s two

definitions of “Tribal organization,” because only a “tribal organization” may enter into an

ISDEAA contract, see 25 U.S.C. § 5321(a)(1). The Plaintiffs part ways on which of the two

definitions apply. The Cheyenne River Sioux Plaintiffs say that ANCs satisfy the first definition

of “tribal organization”—“the recognized governing body of any Indian tribe”; yet they resist the

logical next step that ANCs also are, or have, a “recognized governing body” for purposes of the

CARES Act, even though the two statutes use the exact same terms. The Confederated Tribes

Plaintiffs attempt to dodge this trap. They argue that ANCs fall into the second, longer definition

of “tribal organization,” which Congress did not incorporate into the CARES Act. See id. at 35.

In their view, ANCs qualify as “tribal organization[s]” only because they are a “legally established

organizations of Indians . . . sanctioned by” the governing body of an Indian tribe, in this case, “a

Native village.” 6/12/2020 Hr’g Tr. at 14. This reading, in their view, harmonizes how ANCs are

not, or do not have, a “recognized governing body,” but still can enter into ISDEAA contracts as

a “tribal organization.” Id. The court takes Plaintiffs’ arguments in reverse order.




                                                 30
         The Confederated Tribes’ reading cannot be squared with ISDEAA’s text. ANCs are not

“controlled, sanctioned, or chartered” by the governing body of an Indian Tribe. 13 ANCs are

corporate entities established by Congress and chartered under Alaska state law. See generally 43

U.S.C. § 1601 et seq. Though the ISDEAA definition of “tribal organization” uses the word

“sanctioned,” it does not use that term in the sense of tribal approval of ISDEAA contracts. The

term “sanction” in the definition of “tribal organization” is entirely disconnected from contract

approval. It is true, as the Confederated Tribes Plaintiffs point out, that ANCs ordinarily obtain

the approval of governing bodies of Native Villages as a condition of ISDEAA contracts. But that

requirement stems not from the word “sanctioned,” but rather from the “Provided” clause found

later in the definition: “in any case where a contract is let or grant made to an organization to

perform services benefiting more than one Indian tribe, the approval of each such Indian tribe

shall be a prerequisite to the letting or making of such contract or grant.” 25 U.S.C. § 5304(l)

(emphasis added). Thus, if an ANC seeks to enter into a contract that benefits a Native Village, it

must logically obtain the approval of that Native Village’s governing body as a condition of doing

so. 14

         This interpretation of ISDEAA is consistent with the longstanding view of the Department

of Interior. As the Soller Memorandum explains, ANCs as “Indian tribes” under ISDEAA can

seek self-determination contracts on their own behalf, and their boards of directors qualify as the


         13
           Nor do they satisfy the second half of the second “tribal organization” definition: ANCs are not
“democratically elected by the adult members of the Indian community to be served by such organization.” 25 U.S.C.
§ 5304(l).
         14
            Plaintiffs make the point that, absent specific approval from a Tribal government, an ANC can receive an
ISDEAA contract “[o]nly if a Tribal government does not exist for a specific area.” Cheyenne River Sioux Mot. at
17; 6/12/2020 Hr’g Tr. at 40; see also Confederated Tribes Mot. at 36. This fact only underscores that ANCs must fit
under the first category of “tribal organization,” because in these circumstances—limited though they may be—there
is no Tribe to “sanction” the ISDEAA contract. That such ISDEAA contracts arise only as a “last resort” or in
“exceptional circumstances” is of no moment. Nothing in the text of the statute limits ANCs’ functioning as, or
having, “recognized governing bodies” only to these “last resort” circumstances.

                                                        31
“governing body” for such purposes. See Soller Mem. at 611 (stating that “regional and village

corporations may request to contract for the provision of BIA services under section 102 of the

Act”). The Memorandum further recognizes that, as a practical matter, ANCs almost always must

obtain tribal consent because such self-determination contracts are likely in some way to be for

the benefit of one or more Native Villages, rather than the corporation itself. Id. at 612 (“[T]he

language of the Act is unambiguous. If a contract or grant benefits more than one village or village

corporation, the approval of each must be obtained.”); id. (“Indeed, it is not clear to us what it

means for a contract to ‘benefit’ a village corporation, as opposed to the Native village. . . .

However, it does seem clear that if a contract is let to a regional tribal organization for the purpose

of providing services in a given village, some governing body in that village must approve that

contract.”). 15 Thus, under a straightforward reading of “tribal organization,” ANCs must be

eligible for contracting under the first definition of “tribal organization”—“the recognized

governing body of any Indian tribe.” 25 U.S.C. § 5304(l). 16 And by the terms of that definition,

they must have a “recognized governing body” for purposes of ISDEAA. If ANCs have a

“recognized governing body” for purposes of ISDEAA, it stands to reason that Congress brought

that same meaning forward in the CARES Act, as the first definition of “tribal organization” in


         15
             The sole case that the Confederated Tribes Plaintiffs cite, Ukpeagvik Inupiat Corp. (“UIC”) v. U.S. Dep’t
of Health and Human Svcs, No. 3:13-cv-00073-TMB, 2013 WL 12119576 (D. Alaska May 20, 2013), at *2–3), does
not help them. There, an ANC obtained a contract to provide services at a hospital. Of the approvals it obtained, two
were from other ANCs and one was from the contracting ANC itself. 2013 WL 12119576 at *1 & n.5 (listing, in
addition to UIC (the contracting ANC), Atqasuk Village Corporation and Kuukpik Village Corporation). This case
thus supports the understanding that ANCs are “Indian Tribes.” Otherwise, the ANCs’ “approvals” would not have
been required under the proviso in ISDEAA’s definition of “tribal organization.” See 25 U.S.C. § 5304(l) (“[I]n any
case where a contract is let or grant made to an organization to perform services benefitting more than one Indian
tribe, the approval of each such Indian tribe shall be a prerequisite.”) (emphasis added).
         16
            ANCs plainly fall under the first definition for another reason. If, as the Confederated Tribes Plaintiffs
contend, they fall under the second definition of “Tribal organization,” there would have been no need to expressly
include them in the definition of “Indian Tribe,” see 25 U.S.C. § 5304(e), because ANCs could simply contract under
the second definition, see id. § 5304(l). Accepting the Confederated Tribes Plaintiffs’ position would thus render
ANCs’ inclusion in the “Indian Tribe” definition surplusage twice over.

                                                         32
ISDEAA and the definition of “Tribal government” in the CARES Act are essentially identical.

See Branch, 538 U.S. at 281.

       Plaintiffs resist this logic. They contend that Congress’s use of the word “recognized” was

intended as a term of art, meant to convey the unique political and legal status afforded to federally

recognized tribes. See Confederated Tribes Mot. at 21–23; Cheyenne River Sioux Opp’n at 6–8.

The Confederated Tribes Plaintiffs, for example, point to a federal regulation that defines

“[r]ecognized governing body” as “the tribe’s governing body recognized by the Bureau [of Indian

Affairs] for the purposes of government-to-government relations.” Confederated Tribes Mot. at

21 (quoting 25 C.F.R. § 81.4). But that regulation by its own terms “applies only to federally

recognized tribes,” id. § 81.2, because the regulation concerns election procedures to “adopt,

amend, or revoke tribal governing documents” and charters, id. § 81.1. It is unsurprising, then,

that ANCs would not be included in such a regulation. Likewise, the Cheyenne River Sioux

Plaintiffs point to a slew of cases holding that ANCs are not “governing bodies” or “tribal

governments.” See Cheyenne River Sioux Mot. at 11–12 (collecting cases); Cheyenne River Sioux

Opp’n at 6–8; see also Confederated Tribes Mot. at 22–23 (same). Not only are these cases from

non-ISDEAA contexts, they concern a proposition that is simply not at issue here; no one disputes

that ANCs are not Tribal governments in the traditional sense. This case concerns the entirely

separate question whether ANCs have “recognized governing bodies” for purposes of the CARES

Act. See Mohamad v. Palestinian Auth., 566 U.S. 449, 455 (2012) (“Congress remains free, as

always, to give [a] word a broader or different meaning” than the one suggested by the word’s

plain meaning.).

       On this question, while the court agreed with Plaintiffs’ argument at the preliminary

injunction stage, see Confederated Tribes, 2020 WL 1984297, at *10, upon further reflection the



                                                 33
court now concludes the opposite—“recognized” standing alone, as it is used in the CARES Act’s

definition of “Tribal government,” does not convey federal recognition of an Indian tribe. The

best evidence of this reading is that Congress used nearly the exact same words, “recognized

governing body of any Indian tribe,” found in the first definition of “tribal organization” in

ISDEAA, 25 U.S.C. § 5304(l). While the Cheyenne River Sioux Plaintiffs point out that the

CARES Act incorporated only ISDEAA’s definition of “Indian Tribe” and did not import ISDEAA

“whole cloth,” 6/12/2020 Hr’g Tr. at 120, ISDEAA nevertheless demonstrates that when Congress

uses the word “recognized,” or even “recognized governing body,” it does not a fortiori mean

“federally recognized.” “Recognition” is not used as a term of art in the IDEAA definition of

“tribal organization”; 17 it follows that the same is true under the CARES Act.

         Another interpretive clue leads to this conclusion. The Cheyenne River Sioux’s reading,

if accepted, would produce the result that Congress expressly granted eligibility in one definition

under the CARES Act—by incorporating the ISDEAA definition of “Indian tribe”—but silently

took it away in another—by excluding ANCs from the definition of “Tribal government.” It would

be passing strange to exclude ANCs so obliquely, and the court cannot presume that Congress

intended such a result.

         Finally, and contrary to what the court previously concluded, see Confederated Tribes,

2020 WL 1984297, at *10, Plaintiffs’ appeal to statutory context is ultimately not convincing.

Specifically, they contend that the statute’s “definition of ‘Tribal government’ must be read in

th[e] context” of Title V of the CARES Act, which they argue is “directed to sovereign



         17
             Relevant agencies have long understood this. Under the 1981 guidelines promulgated by Interior and
HHS, for example, ANCs can be “recognize[d] as the village governing body” for “the purposes of contracting under
Pub. L. 93-628 [ISDEAA].” 46 Fed. Reg. 27,178-02, 27,179 (May 18, 1981). And the 1988 list of Tribes published
by Interior described ANCs as “Alaska entities which are recognized and eligible to receive funding and services from
the Bureau of Indian Affairs.” 53 Fed. Reg. at 52,832 (emphasis added).

                                                        34
governments and their political subdivisions.” Confederated Tribes Mot. at 24; see also Cheyenne

River Sioux Mot. at 2 (emphasizing that the CARES Act uses the term “Tribal governments”

“15 times in just over three pages”). But there is nothing inconsistent with treating ANCs

alongside tribal governments for these limited purposes.            ISDEAA is aimed at providing

government services—including health care—to Indians by partnering with Tribal organizations,

including, at times, ANCs. It stands to reason that Congress, in its effort to distribute emergency

funds quickly to Indians under the CARES Act, intended to get those dollars in the hands of the

same entities that deliver public services to Indians. In the lower 48 states, those entities are largely

Tribal governments in the traditional sense, but in Alaska, those entities include Alaska Native

village and regional corporations. See Intervenors’ Mot. at 14–18. ANCs’ inclusion in Title V

alongside other types of traditional governments is therefore not incongruous with Congress’s

purpose of appropriating emergency funds for “governments” to deliver public services to address

and manage a national health emergency. In the end, the question before the court is whether

ANCs are “Tribal governments” for the limited purpose of delivering public services to combat

the COVID-19 pandemic. For all the foregoing reasons, they are.

                                                * * *

        Before concluding, the court addresses Plaintiffs’ concern that deeming ANCs eligible for

Title V funding will enact a sea-change in Tribal law. See, e.g., 6/12/2020 Hr’g Tr. at 42–43.

Not so. The court does no more than opine on the status of ANCs under ISDEAA and the CARES

Act, and it reaches a holding that is consistent with longstanding treatment of ANCs under

ISDEAA by the federal government. The court’s ruling in no way elevates ANCs to “super-tribal

status” as the Confederated Tribes Plaintiffs maintain, Confederated Tribes Opp’n at 10; nor does

it allow ANCs to “compete” with federally recognized tribes in any other context as the Cheyenne



                                                   35
River Sioux Plaintiffs fear, Cheyenne River Sioux Mot. at 12. The court’s decision simply

recognizes that ANCs are eligible for CARES Act funds, as Congress intended—no more, no less.

                                            IV.
       For the foregoing reasons, the court grants the Secretary’s and Defendant-Intervenors’

Motions for Summary Judgment, ECF Nos. 78 and 79, and denies Plaintiffs’ Motions for Summary

Judgment, ECF Nos. 76 and 77. A final, appealable Order accompanies this Memorandum

Opinion.




Dated: June 26, 2020                                     Amit P. Mehta
                                                  United States District Court Judge




                                             36
