Should Alaska Native Corps get COVID-19 funds intended for tribes? Answer hinges on comma, lawyers say

The Barrett Prettyman Court House is home to the U.S. Court of Appeals for the D.C. Circuit. (Wikimedia Commons)

Attorneys for tribes argued in a federal appeals court Friday that Alaska Native Corporations deserve no share of the money Congress reserved for tribes in the CARES Act. 

At stake is perhaps hundreds of millions of dollars, but at times the arguments in the Court of Appeals for the District of Columbia turned on an age-old grammatical puzzle.

Let’s put the grammar question this way: If I say ‘We ate salty pretzels, cake and candy’ does that mean the cake and candy were salty, too? 

In other words, can a modifier placed next to a list apply to only some items on that list?

The question is relevant because, in the CARES Act, Congress set aside $8 billion to help tribes fight the coronavirus, and for a definition of what a “tribe” is, it referred to a 1975 law. In that law, Congress included Alaska Native corporations in a list, and then followed the list with an eligibility clause, and —at least according to some of the attorneys — that eligibility clause excludes the ANCs. 

Department of Justice Attorney Adam Jed argued that Congress would not have included Native Corporations in a list, only to exclude them by the end of the sentence. He said people just make grammatical mistakes sometimes, and you have to go by what Congress meant. 

And then Jed made an argument only an English major could love:  

“We actually cite a couple of grammar guides where we point out that this issue — I think one guide called it an extraposed modifier — is viewed by many as a common grammatical error but is actually viewed by others as permissible,” he said.

RELATED: Tribes want to exclude Alaska Native Corporations from $8 billion coronavirus fund

The tribes trying to exclude Alaska Native Corporations comprise a dozen from the Lower 48 and a handful from Alaska. Arguing for them, attorney Riyaz Kanji said Congress put other money in the CARES Act for the corporations, and for Native people who aren’t affiliated with a tribe.

“Nobody, of course, wants anybody left out in the cold, and that would not happen to Alaska Natives in the urban areas or Alaska Natives in the villages,” he said.

It’s not clear how the Treasury Department would distribute the money it is reserving for ANCs if the corporations lose the case — whether it would go to Alaska tribes or to tribes around the country.

RELATED: What ANCs are doing to help Alaska Native communities cope with the pandemic

More than a piece of the pie, tribes say they are standing up for the principle of sovereignty. Tribes have governmental powers, and they want it clear that corporations aren’t the same thing.

The corporations say they are also spending resources to help their shareholders combat COVID-19.