Though the primary use of the corporate form is to create business entities, the concepts and statuses that underlie the corporate relationship have been employed in other contexts.[1] A currently pending Supreme Court case illustrates one such unusual use, Yellen v. Confederated Tribes of the Chehalis Reservation.[2]
Oral arguments for Yellen are scheduled for April 19, 2021.[3] The case centers on Alaska Native Corporations (“ANCs”) and whether they qualify for certain Coronavirus Aid, Relief, and Economic Security (CARES) Act payments.[4] The questioned payments were assigned to “tribal governments.”[5] The Treasury Department determined that ANCs qualified as tribal governments for the CARES fund and published a form in April 2020 to seek tribal data to apportion the funds.[6] That month, three separate groups of Native American tribes, including six tribes in Alaska and twelve tribes in the conterminous United States, filed lawsuits challenging the Treasury Department’s determination.[7] The district court consolidated the cases and granted an injunction stopping the distribution of the funds.[8] A group of ANCs and ANC associations then intervened as defendants, agreeing with the government that they should receive a portion of the allocated funds.[9] The district court granted summary judgment to the defendants, but was reversed on appeal in the D.C. Circuit Court.[10]
The ANCs were established in 1971 by the Alaska Native Claims Settlement Act (“ANCSA”).[11] The Act resolved outstanding land claims between Alaska Natives and the federal government.[12] Instead of recognizing Native Alaskan ownership and control over a large portion of land, the ANCSA removed native claims to land, water, hunting, and fishing rights in Alaska.[13] It conveyed about ten percent of the state’s land to Alaska Natives, thirty percent to the State of Alaska, and sixty to the federal government.[14] The Act then divided the land into twelve regional corporations, grouping Alaska Natives with “a common heritage and sharing common interests” and a thirteenth corporation for Alaska Natives not currently residing in Alaska.[15] It also created a fund used to seed the ANCs.[16] Under the ANCSA, every Alaska Native becomes a shareholder in a regional corporation and a “native village corporation” based on their residence or origin.[17] Every Alaska Native alive at the passing of the Act was entitled to 100 shares of the corporation’s stock representing the area they live in.[18]
Unlike the typical process of establishing a corporation, where a group organizes itself to capitalize on an economic opportunity, ANCs were created and funded with no business plan. They were only urged to find or create economic opportunities after the statute was passed.[19] The ANCs initially floundered, often because they were forced under the leadership of people with no experience or familiarity with the corporate structure.[20] Though the federal government had determined that the corporate form would be effective in protecting the financial success and territorial rights of Alaska Native people, no substantive accounting was made because running a corporation is a specialized task, distinct from the normal responsibilities of owning or controlling property. In 1984 Janie Leask, president of the Alaska Federation of Natives, described the task as “a legal and administrative burden so overwhelming that in many ways implementing ANCSA has become an end itself.”[21]
Over the fifty years since the ANCs were established, they have become more stable and profitable, both due to Alaska Native directors and shareholders’ work and education efforts and by adjusting the ANCs’ federal classifications. Unlike other corporations, Congress included ANCs in the definition of “Indian tribe” under the Indian Self-Determination and Education Assistance Act of 1975.[22] This classification, along with other allowances and classifications, aimed to give ANCs and their shareholders more support in becoming profitable and more supportive of Alaska Native social improvement, fulfilling the ostensible goal of the ANCSA.[23]
There has been considerable advocacy, negotiation, and legislation surrounding the implementation of ANCs.[24] Confederated Tribes addresses the issues present at the passing of the ANCSA: what happens when the United States designates corporations to represent, lead, and provide for Alaska’s indigenous populations, and how these corporations should be treated in relation to other federally-recognized native groups. This CARES Act litigation offers the Supreme Court a chance to reckon with the continuing effects of the United States’ territorial expansion and what type of care it owes and has promised the Native populations on that territory, all while considering this unique use of the corporate form.
[1] See generally Tyler Halloran, A Brief History of the Corporate Form and Why it Matters, Fordham J. Corp. & Fin. L. Blog (Nov. 18, 2018), https://news.law.fordham.edu/jcfl/2018/11/18/a-brief-history-of-the-corporate-form-and-why-it-matters/.
[2] 976 F.3d 15 (D.C. Cir. 2020)
[3] 976 F.3d 15 (D.C. Cir. 2020) (No. 20-543); Monthly Argument Calendar for April 2021, Sup. Ct. (March 19, 2021), https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalApril2021.pdf.
[4] See Petition for Writ of Certiorari at 2, Mnuchin v. Confederated Tribes of the Chehalis Reservation, __ U.S. __ (2021) (No. 20-543) (consolidated and renamed Yellen v. Confederated Tribes of the Chehalis Reservation when Janet Yellen became Secretary of the Treasury and replaced Steven Mnuchin as Appellee).
[5] 42 U.S.C. 801(g)(1).
[6] See Confederated Tribes v. Mnuchin, 976 F.3d 15, 20 (D.C. Cir. 2020).
[7] Id.
[8] See id.
[9] Id.
[10] Id. at 20, 29.
[11] 43 U.S.C. § 1606.
[12] Christian G. Vazquez, A Business Entity by Any Other Name: Corporation, Community, and Kinship, 33 Alaska L. R. 353, 354 (2016).
[13] Catherine Lynn Allison, Alaska Native Corporations: Reclaiming the Namesake; Effectuating the Purpose, 42 Pub. Cont. L.J. 869, 872 (2013).
[14] Id.
[15] Id.
[16] Id.
[17] 43 U.S.C. § 1606(a).
[18] 43 U.S.C. § 1606(g)(1)(A).
[19] Vazquez, supra note 11, at 356.
[20] Allison, supra note 12, at 874.
[21] Vazquez, supra note 11, at 361 (citing H.R. Rep. No. 100-31, at 4).
[22] Allison, supra note 12, at 875.
[23] Id.
[24] See generally Vazquez, supra note 11.
