Courthouse Steps Decision Webinar: Yellen v. Confederated Tribes of the Chehalis Reservation

Administrative Law & Regulation Practice Group Teleforum

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The Supreme Court issued its decision in Yellen, Secretary of Treasury v. Confederated Tribes of the Chehalis Reservation on June 25, 2021. In this case, the Coronavirus Aid, Relief, and Economic Security (CARES) Act allotted 8 million dollars to “Tribal governments” defined as the “recognized governing body of an Indian tribe” under the Indian Self-Determination and Education Assistance Act.

Under this definition, Alaska Native Corporations (ANCs) qualified for CARES Act Covid-19 relief. Several other Indian tribes sued, arguing that the money should be reserved for federally recognized tribes. 

The District Court entered summary judgment for the ANCs and the Department of the Treasury, the DC Circuit reversed, and the Supreme Court ultimately held that the ANCs do qualify for COVID-19 relief under the CARES Act.

Featuring:

  • Anthony "AJ" Ferate, Of Counsel, Spencer Fane LLP
  • Jennifer Weddle, Shareholder, GreenbergTraurig

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:   Welcome to The Federalist Society’s virtual event. This afternoon, June 28th, we discuss the Supreme Court’s decision in Yellen v. Confederated Tribes of the Chehalis Reservation. My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today we are fortunate to have with us two experts in the area of Indian law, and I will very briefly introduce them, though much more could be said: Mr. Anthony “AJ” Ferate, Of Counsel at Spencer Fane LLP and Ms. Jennifer Weddle, Shareholder at GreenbergTraurig and co-chair of GreenbergTraurig’s American Indian law practice. After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for that portion of the event. If you do have a question, please enter it into the chat or the Q&A feature at the bottom of your screen. With that, thank you for being with us today. AJ, the floor is yours.

 

Anthony “AJ” Ferate:  Well, thank you very much and it’s great to be back. I actually went through, and this is the eighth time I’ve been with you on a tribal law case in the past year. So I look forward to this one. I hope you enjoy it as well.

 

The first thing I want to talk about is I told Jennifer that I was going to do this as we started right before. But she was correct, and I’ll get into why she was correct. I was partially correct, too. But there was one point in particular when I went back to the podcast from the last one right after oral argument that she made and was a good prediction. So I’ll start out with that.

 

But as I did on the last one, let me give you a little bit of background and history here. I’m going to do it a little more briefly than I did on the previous one. So I want to start with the Alaska Native Claim Settlement Act. The Court actually in the opinion goes back even pre-statehood and even pre-United States ownership of the land -- goes back when Russia owned Alaska.

 

But let’s start with the issue at statehood was how do we deal with the Native American tribes that are in Alaska? In the lower 48 the Crow are, for example, a very well organized band -- the Chickasaws, the Choctaws, the Apache. Those are all very well organized and clear tribes within the lower 48. But there was a difficulty around how to kind of group Native Americans and the tribes of Alaska into tribes, basically.

 

So there was a solution created called the Alaska Native Corporations. And those corporations were really devised really in two ways. One, they were devised on the village level, and then they were devised from a regional level. And each Native American Alaskan has the opportunity to be a shareholder of those. I can’t speak specifically, but a certain number of shares in a village in a regional corporation were issued to Native members at the time of the enactment of the clause -- of the statute.

 

About four years later, there was an act of Congress called the Indian Self-Determination and Education Assistance Act. And in that definition came out to be what is defined -- or what is used across approximately 150 different statutes within federal law -- the definition of Indian tribe. And I want to read that to you because it’s very important, and it really does go to what this case is about. Indian tribe is defined as any Indian tribe, band, nation, or other organized group or community, including any Alaskan Native village or regional or village corporation, as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indian because of their Indian statutes. There’s not a lot of commas in that if you were to actually go read that, but if you do want to read it, it’s at 25 U.S.C. § 5304(e).

 

So that was the definition that was come up with in the mid-‘70s to define “Indian tribe.” And at that time and still today by many people it’s believed that this language right here includes Alaska Native Corporations. There are certain tribes that did not agree with that in this case, and it came up here last year in Title V of the CARES Act.

 

The CARES Act as you all know issued funds to state governments. It gave to local municipalities. It gave to individuals. It gave to companies to try to get them through this significant downturn that we had as a result of the shutdown that was imposed during COVID -- during the early months of COVID.

 

And so of that $8 billion that was issued in the CARES Act to tribal governments, approximately -- at the time it was about $500 million, and it was lowered to about $450 million as the opinion states. That money was issued -- or was assigned to go to Alaska Native Corporations. There were several tribes that challenged that. The Utes, the Chehalis, and I know I’m going to leave a whole bunch out if I go any further -- but those tribes challenged that concept that the CARES Act borrowed the definition from ISDA. And they claimed that none of the Alaska Native corporations are recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

 

And so they challenged this in the U.S. District Court in Washington, D.C. The Alaska Native Corporations won at that level. At the Eleventh Circuit by a 3-0 decision the Chehalis and the Utes, the lower 48 tribes, were successful in getting that pushed back and reversed. And then it came to the Supreme Court whereby a 6-3 decision—Alito abstained from some sections, and I’ll get into that here in a little bit—the Court ruled that the definition of Indian tribe as defined in ISDA and applied in the CARES Act includes Alaska Native corporations.

 

Really what this case is and involves is statutory interpretation. I see Justice Gorsuch using this in his next book as he analyses where we’re going with statutory interpretation in the future. But as I mentioned, Scalia’s statutory interpretation is front and center. Justice Gorsuch uses the Scalia-Garner book from 2012 in his opinion in the same way that Judge Katsas did in the D.C. Circuit. Interestingly Justice Sotomayor also in the majority uses Bryan Garner book. It’s a different book that was done by Professor Garner without Justice Scalia. But we have this interpretation going back and forth and this challenge over statutory interpretation.

 

The series qualifier canon is really where this discussion goes and is really the basis of where the fight or where the opinion was in the D.C. Circuit as well. So I want to read briefly to you from the opinion at page 19. “The so called series qualifier canon can be a helpful interpretive tool, and it supports the idea that the recognized as eligible clause applies to every type of entity listed in the Indian tribe definition, including the ANCs.”

 

And I’m going to skip down about a sentence here. “As the Court reiterated earlier this term, however, the series qualifier canon gives way when it revealed a contextually implausible outcome --" which is a citation from Facebook Incorporated earlier in the term. No citation number yet. It’s a reference to Justice Alito who said that “Canons are useful tools, but it is important to keep their limitations in mind. This may be especially true with respect to the series qualifier canon.”

 

So they include some conversation on Justice Alito. Alito’s views can be gleaned, I guess, in a couple of ways there, one, from that reference that Justice Sotomayor included in the majority opinion. But we can go back to oral argument when Justice Alito was asking questions about the absurdity that may exist here. Can we just say that Alaska Native Corporations are included because, if we don’t include them, it creates an absurdity of the section rather than trying to address any issues with that?

 

Justice Gorsuch actually is the only one who raises absurdity in the opinion, and he does it in the footnote on page 15 of his dissent right there at the very last page where he pushes back on any concept of an absurdity saying, “This Court does not suggest, for example, that the reading of the statute it rejects would be absurd. Absurdity doctrine does not license courts to improve statutes or rules substantively so that their outcomes accord more closely with what we might think is the preferred result.” And he’s citing Judge Easterbrook at 427 F. 3d 546 for those of you that may be interested -- and then goes on further to talk about absurdity theory as well.

 

Two other things that I wanted to address out of this in particular, Justice Sotomayor goes through a number of statutes passed since ISDA that have included participation from ANCs. You can find that at page 17 of the opinion. The other thing that you can do as you go through is Justice Sotomayor addresses certain statutes that use the ISDA definition but actually exclude Alaska Native Corporations throughout the opinion. So it’s worth considering that, and that was briefed as well prior to argument by the Alaska Native Corporations.

 

The last thing I want to address that seems to be the hot topic out of this case other than the exciting world of statutory interpretation is ceviche. I don’t know how many of you that are watching or listening have had ceviche, but I have had ceviche. It is great. I encourage you to do it if you enjoy seafood.

 

But let me say this about it. I have read opinions and briefs of attorneys in the past where food examples are attempted to be used as illustrative. I will give Justice Sotomayor a whole lot of credit because I think that what she did was probably the best example of using a food allegory in her work. However, it seems to have been panned by the community at large.

 

I’m generally, like I said, not a fan of these. But this was one of the best ones I’ve seen. But the community at large doesn’t seem to be a fan. I hope that you will be a fan of ceviche when you try it though, however. With that, those are kind of my initial thoughts, and, Jenn, by all means. I look forward to you and I having some ceviche one of these times.

 

Jennifer Weddle:  I’m all for in-person ceviche. Thanks so much, AJ. Largely some similar reflections and I think much less dramatic reflections than some of you may be reading about across the legal media and especially the Indian Country legal media.

 

This was a very hard fought, very emotional, very fractious case in Indian Country, creating significant splits within national intertribal organizations and frankly amongst friends and family. As AJ noted, there were 17 petitioner -- or respondent tribes, rather, who had initially petitioned the district court in D.C. to enjoin distribution by the Department of the Treasury of any of the coronavirus relief fund monies to Alaska Native Corporations. They first won on that issue at the district court before losing on that issue at the district court, then winning on that issue at the D.C. Circuit, and then losing on that issue on Friday at the U.S. Supreme Court.

 

This is a really hard case trying to figure out what Congress meant with its use of language, reference to a specific federal statute including ANCs in its definition, and perhaps one of the most unfortunate placements of a comma in the history of the U.S. Congress. As we talked about in the oral argument review that we did, all of this was kind of boiled down by Judge Henderson in her concurring opinion at the D.C. Circuit where she said, essentially, what Congress said in the plain text is readily apparent, and it bears no relationship to what we all understand they were trying to do, which was to include Alaska Native Corporations in the entities available to receive the relief dollars and disburse them in Indian Country.

 

As AJ mentioned, that’s pretty standard fare. Since 1971, ANCs have been vehicles to hold lands and to foster economic development in Alaska for Alaska Natives. And they’ve been very successful in that mission. And resultantly, they’ve become major players for the delivery of services in Alaska, including in housing, in healthcare, and in many other areas, ANCs are a critical part.

 

And that was at all times the unique posture that Alaska brought forward, both in the Alaska Native village filings that Paul Clement represented at the Court and the filings from the Alaska delegation and from the Alaska Federation of Natives and other organizations that all had chimed in with the Court. And the essential issue, as AJ outlined, was just whether the proper interpretation of the CARES Act was that Congress meant ANCs should get the money or ANCs should get the money only if they were sovereigns in a political sense having been officially recognized under the federal legal mechanism to establish a government to government relationship with the United States.

 

The 17 respondent tribes had of course disagreed and said ANCs are not sovereigns in any sense of the word. They don’t exercise any executive, legislative, or judicial power. Everyone agrees they’re absolutely not sovereigns.

 

But the ANCs countered that by saying, “We’re not sovereigns, but we are the mechanism by which Alaska Natives exercise their rights of self-determination, which is the enduring policy of the United States for Native people to be able to have more of a voice over their own affairs,” which is expressly why ANCs were included in ISDEA, or here referred to by the Court and many of the parties as ISDA. It’s the Indian Self-Determination Education and Assistance Act of 1975, which somewhere along the line everyone decided to shrink the acronym to ISDA.

 

But if you say ISDA in Indian Country, no one has any idea what you’re talking about. So I’ll routinely fall back on ISDEA. But it’s the same thing. That’s what this is about.

 

I think really the human concerns informed a lot of what the Court was doing here. At oral argument we heard really pressing questions from Justice Breyer and Justice Sotomayor and particularly from Justice Kavanaugh and Justice Barrett wondering about why the -- as Justice Kavanaugh put it to counsel for one of the respondents , “Why are you treating Alaska as second class?” wondering about why Alaska Natives wouldn’t be eligible to receive these funds via the same bodies by which they receive so many other federal monies and services and wanting to know that they were going to be okay. And I think it was really refreshing to hear that kind of care and concern from the Court.

 

One of Justice Sotomayor’s questions to Mr. Guarnieri who argued for the United States was, “What’s the narrowest possible ground on which you could lose without us messing up the 150 statutes that AJ had mentioned?” Justice Breyer pressed counsel multiple times on, “Well, have you read the other 150 statutes. If we do something here, what’s the ripple effect of that across all these other statutes?”

 

And I think that really led the Court to have a narrow ruling cabined to the confines of the coronavirus relief fund, holding that under their reading it’s plain that Congress intended to include the ANCs as eligible. That wasn’t merely superfluous. It wasn’t absurd. Congress didn’t use that definition to achieve nothing. They did it to achieve something.

 

And it’s that part of the majority opinion in which Justice Alito joins, but he declined to join in those parts of the opinion saying that tribes met that “recognized as eligible” portion as well. He said it’s enough that Congress used the ISDEA definition, and he didn’t need to look any further.

 

I think another interesting thing to note is that what are the practical consequences of this decision? And we talked a little bit about this on our oral argument review. There were some high stakes procedural antics leading right up to the Friday before the argument where Mr. Rasmussen, who was the oralist for the respondents, got that by having his name drawn out of a hat in the clerk’s office on 16-1 odds and had no idea that he was going to be doing this argument less than some 72 hours later.

 

After the oral argument, five letters to the court were submitted which is very unusual procedurally to see so much post argument filing happening at the Court. I think that showed, again, just how hotly this was contested, how not unified the respondents were in their legal arguments. And I think that also drove the Court toward, again, this continuing frame of reference of what are the practical consequences?

 

Justice Kavanaugh had read aloud from the Alaska delegation’s brief at oral argument. And it was a very powerful brief, which he referred to multiple times at the oral argument. It has that great Appendix B that lists out the 150 statutes that AJ mentioned.

 

And the question that Justice Kavanaugh asked that I keep coming back to is he says, “The amicus briefs from Senators Murkowski and Sullivan and Congressman Young from the Alaska Federation of Natives, from the State of Alaska, from Cook Inlet, they used terms like ‘stunning,’ ‘egregious,’ ‘destabilizing,’ ‘staggering’ in terms of the effects that an affirmance would have on this program but also so many other programs.” And he went on to say they know Alaska.

 

And I think from a separation of powers perspective the majority’s view is that they are deferring to Congress’ power in this area, that the Alaska delegation knows what they’re doing. They secured this ISDEA definition and a willingness on the part of the Court, even if the drafting was inartful to defer to what seemed to everyone to be the obvious intent of Congress and to take very seriously the dire warnings coming from the Alaska delegation and Natives. Conversely, you see Justice Gorsuch who has previously been a skeptic of dire warnings, for example, in the McGirt case, who had his own set of concern about dire unintended consequences from a ruling that held that ANCs were tribal governments when, again, they plainly are not in that they exercise no executive, legislative, or judicial functions. So it’s an interesting mix, and I think both sides plainly think they’re right.

 

On the ceviche controversy, I would say I think it’s part of a growing trend at the Court to make their writing more accessible. And Justice Sotomayor used several kind of personal examples, including the example about a warning to diabetics. And of course, she is diabetic -- an example of ceviche, a popular Puerto Rican food, and in the countering that example, Justice Gorsuch cited to the St. Louis Dispatch, which I think is probably not the most authoritative source on ceviche. But I don’t want to offend anyone from St. Louis is a connoisseur of ceviche.

 

It may not have been super successful, but I think, again, it is part of the Court’s overall desire to make their writing accessible, to make it understandable, to use real world examples, which I do think is helpful if not very satisfying to some of the elite legal intelligencia out there who are all eager to write the definitive law review article about that particular colloquy. And then in terms of practical results, it started this case was about $530 million were reserved to ANCs -- slated to be allocated to ANCs by the Trump administration Treasury. The Biden administration Treasury has reallocated about $80 million of that amount to correct another litigation issue that is still ongoing where the Trump Treasury had used an odd choice of population data that the D.C. Circuit has ruled in another opinion was arbitrary and capricious.

 

That decision had resulted in 33 tribes being zeroed out as if they had no population, which of course is absurd. So in order to get those tribes something, the Biden Treasury took $80 million out of this pot. It’s now down to about $450 million that perhaps Treasury will distribute to ANCs. And I say perhaps because their formula methodology may be evolving, and they have discretion to do that. I also note that the CARES Act money at issue in this case must be spent by December 31st, 2021. That’s a very short window for anybody in Alaska to do anything considering the construction window closes in about six weeks. AJ, back to you.

 

Anthony “AJ” Ferate:  Yeah. Thank you. Just a few things that you said. You mentioned McGirt and you mentioned Gorsuch. And I think that it’s important to consider that Gorsuch really did kind of stick to that same application that he did in McGirt. And that is, “I’m going to look at this. Don’t give me your consequences. I’m going to look at this the way that it needs to be looked at.”

 

The other thing, too, that I just kind of want to highlight briefly and don’t want to dive into -- but another reason -- I mean, obviously a very important issue but another reason that this came to the Court is because there’s a circuit split as a result of the D.C. Circuit opinion. The Ninth Circuit had treated this question of whether ANCs were tribes for -- correct me if I’m wrong -- but decades saying that ANCs are of course tribes. And it was that position that the D.C. Circuit disagreed with and is perhaps yet another reason beyond trying to figure this out quickly for financial purposes -- for allocation purposes -- but another reason why the Court took this so quickly and gave it a decision.

 

The one thing that I wish that I had mentioned—and I’m glad that Jennifer did—is out of Judge Henderson’s opinion -- and I had intended to read that, and I will read it for you. She said, “Although I join my colleagues in full, I write separately to express my view that this decision is an unfortunate and unintended consequence of high stakes, time sensitive legislative drafting.” And I think one of the things that Jenn mentioned when we were discussing this earlier is that this really is kind of a problem, right, at times when the legislative drafting process, whether it be at the state or the federal level, gets rushed. A comma is misplaced, or a statement is kind of rigged to solve the problem quickly but doesn’t solve the problem quickly and leads to other unintended consequences.

 

It’s for that reason that I think that this case perhaps more than in the tribal law realm going forward will probably be most useful to students that are in a legal analysis course, perhaps in their first year of law school as they’re trying to learn about that, or in a legislative course. I took a legislation course my third year of law school. And so it’s for those reasons that I think that students will be reading this. 

 

And to your point as well the accessibility of it is so important. And that’s why Justice Scalia’s opinions were so read in law schools over years, and there were many people that enjoyed them. Some of that accessibility that Justice Gorsuch and Justice Sotomayor provide in this opinion are the sort of things that I think we’re really going to see going forward and I hope we see going forward because that accessibility not only to the public at large but to students as they’re trying to understand these complex issues, this will only be beneficial to them.

 

Jennifer Weddle:  So I come back to something that Paul Clement said at oral argument, which was you’re either a textualist or you’re not. And this statute said “recognized as eligible for services,” not “recognized as a sovereign government.” And it’s interesting to see how that played out and which camp of 6-3 is the true textualists.

 

I think the lesson might be that equally devoted textualists can still get to different ends looking at the exact same text. And I do think this look at the human consequences is helpful and impactful. And I think the increasing awareness on the Court will cause them to be increasingly needing to be very certain before they announce new rules or different interpretations in Indian law cases.

 

I think again and again in recent years the Court has benefited from a lot of briefing outlining just how problematic the Court’s history is in just making it up in the Indian law field. And that’s something that Justice Thomas has written about extensively over the years that the Court has really just made up Indian law whole cloth in many instances and created a lot of one-size-fits-all rules that are inconsistent, that have flip-flopped with the social morays of the time, with the federal executive and legislative policies of the time. And it’s created, as Justice Kavanaugh quoted at the Cooley oral argument, an indefensible morass.

 

And we see in the majority opinion here Justice Sotomayor citing twice to the Sturgeon case, the hovercraft case, citing twice to this proposition that Alaska is different. And I think the Court knows that Alaska is different, and they didn’t want to do anything to screw that up or to create all sorts of collateral damage. So they took the narrowest view on this coronavirus relief fund eligibility and tried not to create that collateral damage by staying their hand where they might have done much more.

 

I do think -- and I’m happy to be right about Justice Thomas. I’m going for that Nate Silver of Indian law opinions hashtag. But I think I expected him to be firmly convinced by the unanimous opinion of the D.C. Circuit that included Judge Katsas and Judge Millet, who herself had an extensive career in Indian law and Indian law at the U.S. Supreme Court as well, and Judge Henderson, who are devoted textualists in that they’re willing to look at the text with blinders on to everything else. And I think there are four on the Court who are much more concerned about, “Well, we want to look at the text, but we also want to worry about what’s on the side. We don’t want to have blinders on.” And there’s Justice Alito who doesn’t want to ever ascribe absurdity to Congress.

 

Anthony “AJ” Ferate:  Evelyn, do we have any questions by chance?

 

Evelyn Hildebrand:  We do not have any questions at this time. If you would like to continue discussing the case between yourselves, or we can certainly close a little bit early. It’s up to you.

 

Jennifer Weddle:  I guess I might chime in as people are thinking about any questions with this what happens next. It’s a short window on remand, as I say, to spend the money. And that’s certainly just within the four corners of this litigation.

 

There’s still other CARES Act litigation playing itself out -- two tribes that are still in active litigation with Treasury over their use of that housing block grant dataset as opposed to certified tribal enrollment. And Treasury’s now in the middle of deploying much larger allocation to Indian Country from the American Rescue Plan, $20 billion under the ARPA as opposed to the $8 billion under the CARES Act. We’re not done with relief aid, recovery aid legislation yet. I’m sure there will be more.

 

And then I think the other takeaway from the case is to look for much closer attention on the Hill in what definitions get used in federal statutes. Where ISDEA is used you’re going to see groups violently, vehemently opposing the use of the ISDEA definition. And I think you’re going to see Alaska groups fighting very vigorously for ISDEA’s inclusion. And it’s going to be just an increasing focus as any legislative efforts go forward.

 

Anthony “AJ” Ferate:  The other thing that I’ll add there— and you prompted it with one of your mentions —I think that the senators from Alaska are going to have to work very hard. As you know, Senator Murkowski recently joined the infrastructure proposal that President Biden has out there. And the group of 10 that got together to -- I believe it was five Republicans and five Democrats that joined in a deal on infrastructure.

 

That infrastructure deal is arranged in such a way that the funding for it will not raise taxes or is intended not to raise taxes but reincorporates or reuses some of the unspent funds out of the CARES Act. And so because of the fact that we are so far along in this, I hope it doesn’t happen certainly, but I could see a scenario where the senators are going to have to fight very hard from Alaska to retain those funds for their constituents on the potential that they could be reincorporated into an infrastructure plan.

 

Jennifer Weddle:  They will, but the Alaska delegation is eminently capable as Senator Murkowski is the co-chair of the Senate Committee on Indian Affairs and an appropriator. So I think she will be heard on these issues, and I think the Alaska delegation has been very effective in working for their constituents and reaching across the aisle and working to heal some of the riffs caused by this litigation. And I think that they’ll get there, and Indian Country collectively can come together on these issues to find a good healing path forward and hopefully in the future focus on better comma placement at 12:30 a.m. when Congress is passing major relief bills.

 

Anthony “AJ” Ferate:  I agree with you there. Let’s place better commas. I believe it was you. You sent me a great email on Friday after the opinion that said, “Let’s eat, Grandma, not let’s eat Grandma.”

 

Jennifer Weddle:  There’s a great t-shirt that’s “Commas save lives.” And I should pull it up and share screen as we’re talking.

 

Evelyn Hildebrand:  Let me ask you a question while you’re pulling that up from Tom Ghetti (sp). He asks, “Will this outcome play a role in future examination of differences between tribes as governments and incorporated tribes as Section 17 corporations for jurisdictional purposes, i.e. the difference between tribes in their governmental versus their proprietary character?”

 

Jennifer Weddle:  So thank you Tom Ghetti (sp) for that question. I think not. As somebody who represents a lot of lower 48 tribes and their Section 17 corporations, I think it would be great to see Section 17 corporations taking more prominent roles and being more empowered. But I don’t think that’s going to result from this decision. If anything, I think there will be pushback to have much more use and reference to the Federally Recognized Tribes List Act rather than anything else. AJ, you might have a different thought.

 

Anthony “AJ” Ferate:  No, I think you’re right. I really do view this really as a matter not really involving tribal corporations outside of Alaska. I’m just not sure that we’re going to see any use of that. It would be interesting I will say that if the List Act is what is used going forward in future legislation, I think that’s a completely different fight and argument that we’re going to have going forward. I look forward to that piece of litigation when we’re fighting over whether the List Act is the correct path or not -- the lobbying fights on that as well.

 

Jennifer Weddle:  I need you to enable screen sharing, Evelyn.

 

Evelyn Hildebrand:  Perfect.

 

Jennifer Weddle:  The Federalist Society members do not want to miss this high quality humor that is happening now. So “Commas save lives,” and so does I think a little good old fashion empathy that we saw from the majority of the Court in this decision. So I think if there’s any other questions, Evelyn, we’re happy to answer those. Or we can leave it there on this poignant ending.

 

Evelyn Hildebrand:  I think perhaps that’s a good place to end it because we don’t have any other additional questions. So if you would like to make a final comment or perhaps you’ve covered it, I’ll leave it up to you.

 

Anthony “AJ” Ferate:  No, I think I will leave it on the statement I made just a short bit ago as I think this is the sort of piece that legislation professors and legal analysis professors can use this case very handily as they are teaching their classes for years to come. This is a prime example of maybe getting away with one when in so many instances poorly drafted legislation just cannot survive on something like this. And so this one will find its way into a textbook somewhere I have no doubt.

 

Jennifer Weddle:  And I think as all those law professors are teaching this case they can remind their students of the context that the Senate passed this literally after 1:00 a.m. in the morning. The tribal provisions were among the very last to be negotiated and included in the bill. And Senator Murkowski was in those rooms making that happen. So I think there’s, again, a fair amount of recent memory that informs the Court’s decision in this particular case.

 

And then more broadly in terms of concluding thoughts about what this means in their Indian law jurisprudence I think they keep getting better and better. And we’re going to see them moving away from perhaps the less informed decisions of the past, and that’s not to say that stare decisis will suddenly not matter in the Indian law context. I think it will.

 

But I think they’re also going to give a lot more weight to the federal officers who are responsible for various -- who have responsibility for various functions in Indian Country like the Alaska delegation here or like former United States Attorneys in the McGirt case and the Cooley case. They’re going to be looking to subject matter experts to tell them how not to make a problem worse. And I think that’s a great take away from all of these decisions is that temperance, that self-control not to try to redo the whole thing every time but to let Congress do their job in a contemplative way when they can balance all these interests and bring all the stakeholders to the table.

 

Evelyn Hildebrand:  Great. Thank you. Well, on behalf of The Federalist Society I want to thank our experts for the benefit of their valuable time and expertise today, and I want to thank our audience for participating. We welcome listener feedback by email at info@fed-soc.org. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.