Reflections on the Pending Supreme Court Challenge to the Affordable Care Act in California v. Texas: Part One in a Series

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this first of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone examine the stare decisis effects of the Supreme Court’s initial blockbuster decision involving the ACA. The authors demonstrate several, perhaps surprising, ways that the earlier decision should shape how the Court views the present challenge.

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United States v. Abouselman

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-2164

Opinion Date: September 29, 2020

Judge: David M. Ebel

Areas of Law: Government & Administrative Law, Native American Law, Zoning, Planning & Land Use

The Pueblos of Jemez, Santa Ana, and Zia resided along the Jemez River at a time when their lands passed from Spanish to Mexican sovereignty, and finally to the United States. In 1983, the United States initiated a water-rights adjudication for the Jemez River Basin, claiming water rights on behalf of the Pueblos. The issue this case presented for the Tenth Circuit's review centered on whether the Pueblos' aboriginal water rights were extinguished by the imposition of Spanish authority "without any affirmative adverse act." No matter the method used, the sovereign’s intent to extinguish must be clear and unambiguous; “an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” Moreover, “if there is doubt whether aboriginal title has been validly extinguished by the United States, any 'doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of’ the Indians.” The Tenth Circuit reversed the district court, finding that while "All conquering sovereigns possess authority over their land and resources ... not until the sovereign exercises this authority through clear and adverse affirmative action may it extinguish aboriginal rights."

Confederated Tribes of the Chehalis Reservation v. Mnuchin

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 20-5204

Opinion Date: September 25, 2020

Judge: Katsas

Areas of Law: Government & Administrative Law, Native American Law

Title V of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) makes certain funds available to the recognized governing bodies of any "Indian Tribe" as that term is defined in the Indian Self-Determination and Education Assistance Act (ISDA). The DC Circuit held that Alaska Native Corporations (ANCs), state-chartered corporations established by Congress to receive land and money provided to Alaska Natives in settlement of aboriginal land claims, do not qualify as Indian Tribes under the CARES Act and ISDA. Therefore, ANCs are not eligible for funding under Title V of the CARES Act. The court stated that an ANC cannot qualify as an "Indian tribe" under ISDA unless it has been "recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;" because no ANC has been federally "recognized" as an Indian tribe, as the recognition clause requires, no ANC satisfies the ISDA definition; although ANCs cannot be recognized as Indian tribes under current regulations, it was highly unsettled in 1975, when ISDA was enacted, whether Native villages or Native corporations would ultimately be recognized; and the Alaska clause does meaningful work by extending ISDA's definition of Indian tribes to whatever Native entities ultimately were recognized—even though, as things later turned out, no ANCs were recognized. Accordingly, the court reversed the district court's grant of summary judgment to the government and the intervenors, as well as the district court's denial of summary judgment to the plaintiff tribes.