Vixiyo’ ngizrenh | Opinion
A court a continent away denies our communities crucial funding, upends our self-determined system, and exposes divisions in our Indigenous community
BY SAMUEL HIRATSUKA (Aleut/Winnemem Wintu/Navajo)

want to write about a decision just handed down from the District of Columbia’s U.S. Court of Appeals concerning the case Confederated Tribes of the Chehalis Reservation v. Mnuchin. This decision, if upheld, has the potential to disrupt decades of Congressional precedent and completely upend the function of our Alaska Native Corporations (ANCs).

Handed down in September, the opinion of Judge Katsas holds that per definitional language within the Indian Self-Determination and Education Assistance Act of 1975 (ISDA), Alaska Native Corporations are not eligible for the historic $8 billion stimulus funding provided in the CARES Act. Instead, the holding dictates that Alaska Native Corporations will need Tribal consent in order to receive federal funding. In essence, the holding requires an additional layer of bureaucracy be applied to ensure ANCs have access to federal funding intended to support our Alaska Native communities in need. The holding is also not narrowly tailored, meaning that this requirement will be applied to all other future funding measures unless Congress or the Supreme Court intervenes.

If upheld, Judge Katsas’ holding would upend ANC functions by threatening ANC’s abilities to participate in the compacting process —harming some Alaska Natives’ abilities to self-govern in housing, healthcare, and other crucial social programs. Though these programs may be taken up by their respective Tribes over time, the intervening chaos, lost productivity, and lost institutional knowledge poses a substantial risk to Alaska Native lives and livelihoods. The reform is not worth the risk.

Samuel Hiratsuka sitting in a chair
Samuel Hiratsuka (Aleut/Winnemem Wintu/Navajo)
Meanwhile, the system we have chosen to work through has provided countless dividends since its conception in 1971. It is efficient, workable, and, most importantly, a system we have figured out how to maximize. For a court a continent away to upend that system is inconceivable and unjust, not to mention ignorant and short-sighted.

The coronavirus pandemic is an existential threat to our Indigenous communities. History leaves no doubt as to the detrimental effect disease has upon us. Time and again, pandemics have taken away our young ones, our Elders, our mothers and fathers, and our sisters and brothers. Public health crises are nigh a generation removed for Alaska Native communities, whose present housing shortages and infrastructure poor environments present ripe opportunities for communicable diseases like the coronavirus to spread, infect, and kill. There could not be a worst time to impart this decision.

Further frustrating is the dogmatic, apathetic reasoning underlying the court’s decision. Presented in the twelfth page of Judge Katsas’ Opinion of the Court, the holding of the court is predicated upon a strict ideological reading of law promoted by the late Supreme Court Justice Antonin Scalia and lawyer Bryan Garner in their book Reading Law: The Interpretation of Legal Texts (2012). Specifically, Judge Katsas relies upon a passage concerning the clausal order of a text as the basis for his decision. It is hard to picture a reasoning more acute and arcane than this as the basis for a decision with such great ramifications.

For a court a continent away to upend that system is inconceivable and unjust, not to mention ignorant and short-sighted.

Judge Katsas’ Opinion of the Court and Judge Henderson’s tacit approval of it belies decades of Congressional action. In focusing on the tree of ISDA’s clausal structuring, the court willfully ignores the forest of Congressional precedent supporting ANCs’ inclusion in federal funding dedicated to Tribes, as well as the ways ANCs function in conjunction with federally recognized Tribes in their respective regions. The court willfully ignores the unique, beneficial roles ANCs play in disbursing essential services to those in their regions. The court willfully ignored the coronavirus pandemic and the urgent needs of Alaska Natives in forming its decision. Instead, it focused on the clausal order of a definition using a guidebook written in 2012.

A court a continent away from our communities (a) denies our Alaska Native communities the crucial funding they need in order to combat and control the coronavirus, (b) obscures future federal funding from Alaska Native Corporations, and (c) upends our self-determined way of receiving essential services and programs all because of a reading of a guidebook written by a deceased Supreme Court justice in 2012. How is that just?

Without the Supreme Court stepping in to overrule the circuit court’s holding, any change would require Congressional action, agency buy-in, and Tribal consultation. Such an effort would probably cost millions of dollars and years of work. The coronavirus presents a cost which may be measured in human lives. For as long as ANCs are unable to access CARES Act funding, fewer resources are able to reach our Alaska Native communities. Less resources are able to support our essential workers. Less resources are available to help get our communities through the harsh winter. Most importantly, Alaska Native Corporations’ inability to access CARES Act funding may mean fewer people may be around in the spring to help get our communities back on their feet. Less people may be around to carry on our languages. To support our youth. To take care of our Elders.

This holding presents a paradigm shift. And while I do not know the future, I know that now is not the time to restrict access to essential resources. It is not the time to upend a tried and true method of support for our Alaska Native communities. This moment is a time to support all communities, and increase access to scarce resources like PPE and novel vaccines. More than ever, they are needed. We have seen what disease can do to our communities if we do not receive the resources we need. It is not a history worth repeating.

Additionally, as Indigenous peoples, we must not fight one another for access. We must come together. The fact that we are fighting one another in this lawsuit is shameful to me. It hurts me to think that we attack one another this way. Instead of celebrating the historic $8 billion explicit congressional set aside, we’ve given outside powers who do not know our histories, priorities, or legal structures as well as we do the opportunity to marginalize critical allies of our Indigenous communities.

The division shown through this lawsuit within our Indigenous community astounds me. It seems to be the same intra-Indigenous factionalism and divisiveness which for decades allowed the forces of colonialism and imperialism to fundamentally destroy our civilizations. While I understand no single federal policy will be able to adequately address the acute needs present within our societies, surely there must be a better way to work for greater resources for our communities than fighting each other for the limited resources present. Surely, after hundreds of years of attacks on our sovereignty, fracturing Indigenous sovereignty, we would realize that the path towards progress comes not in attacking each other. That progress is not possible through the degradation of institutions which benefit our communities. That, in truth, we hold more power as a collective unit than as an assortment of disparate interests. And that in the long run, we do a disservice to each other by politically isolating our fellow Indigenous organizations, when we could do extraordinary good should we stand united.

As Indigenous peoples… we must come together. The fact that we are fighting one another in this lawsuit is shameful to me.

I hope this decision gets overturned. That Congressional intent and historical precedent be honored, and the needs of our Indigenous communities are met in full during this extreme time of need. I also hope this case may serve as a catalyst for conversations within the Indigenous communities about the necessity of supporting one another. That through this case, we can focus on areas of mutual interest where we can present ourselves as a united front. Above all, I hope we can work together to implement strategies which do not allow for the possibility of outsiders to determine the paths we ought to be able to chart ourselves.

This piece was originally published in the blog A First Alaskan Perspective.

Samuel Hiratsuka (Aleut/Winnemem Wintu/Navajo) from Anchorage with ties to Ekuk, Big Bend Rancheria in California, and Fish Point on the Navajo Nation in Arizona. Samuel recently worked in the DC office of U.S. Sen. Dan Sullivan as the First Alaskans Institute’s Al Adams Young Political Leader Fellow.

Publisher’s Note: The views of this writer are his own and do not represent First Alaskans magazine or First Alaskans Institute. This space is for the sharing of viewpoints, meant to catalyze thinking and deeper dialogue on important issues that impact the Alaska Native community.