13 Alaska Native Corporations to garner almost half of all tribal pandemic relief

WASHINGTON – The National Congress of American Indians criticized a June 26 court decision clearing the way for Alaska Native Corporations to receive almost half of the $8 million that the U.S. Congress provided tribal governments through the Coronavirus Aid, Relief and Economic Security (CARES) Act.

The Confederated Tribes of the Chehalis Reservation, three Lakota tribes and numerous other tribal governments in the lower 48 United States had filed suits to prevent the 13 Alaska Native Corporations from receiving the $3.2 billion share of Title 5 emergency pandemic relief the Treasury Department allocated to the for-profit northern neighbor entities after CARES Act approval March 27.

“The National Congress of American Indians (NCAI) is extremely disappointed in today’s decision by the D.C. District Court in Confederated Tribes of the Chehalis Reservation v. Mnuchin,” said the non-profit, which calls itself “the oldest, largest and most representative American Indian and Alaska Native organization.”

U.S. Treasury Secretary Steven Mnuchin said he had elected to include the Alaska Native Corporations, or ANCs, in the allocation of CARES Act Title 5 funds, based on advice from U.S. Interior Department Assistant Secretary of Indian Affairs Tara Sweeney, an Alaska Native with close ties to the corporations.

NCAI said the court decision backing Mnuchin and Sweeney amounts to “critical congressional funding intended for Indian tribal governments being diverted to state chartered corporate entities with no governance authority and no governmental duties to tribal citizens in Alaska.”

In writing his opinion, District of Columbia U.S. Judge Amit P. Mehta interpreted Congress’ CARES Act wording to mean that ANCs should be deemed among eligible recipients to provide programmatic relief to the approximately 106,660 Alaskan Natives, 1.5 percent of the U.S. indigenous population, represented by 229 federally recognized Alaskan tribal governments.

Stressing that the ANCs are not the same as federally recognized tribal governments in terms of sovereign and treaty rights to jurisdiction and benefits, Mehta nonetheless noted that it is common practice for federal agencies to distribute native program money through the corporations.

The 1971 Alaska Native Claims Settlement Act established the regional corporations solely to administer land and financial claims filed by tribes and members in the largest U.S. state, not to govern in other aspects reserved to the total 574 federally recognized tribal governments.

“The court addresses plaintiffs’ concern that deeming ANCs eligible for Title 5 funding will enact a sea-change in tribal law,” Mehta’s opinion reads.

“The court’s ruling in no way elevates ANCs to ‘super-tribal status,’ as the Confederated Tribes plaintiffs maintain, nor does it allow ANCs to ‘compete’ with federally recognized tribes in any other context, as the Cheyenne River Sioux plaintiffs fear,” Mehta said.

“The court’s decision simply recognizes that ANCs are eligible for CARES Act funds, as Congress intended—no more, no less.” He ruled earlier that the court cannot control a department’s discretional allocation formula.

His latest ruling covers three consolidated cases that groups of tribes filed against Mnuchin under the Administrative Procedure Act.

On April 17, the Confederated Tribes of the Chehalis Reservation, the Tulalip Tribes, and the Houlton Band of Maliseet Indians, the Akiak Native Community, the Asa’carsarmiut Tribe, and the Aleut Community of St. Paul Island filed the first action.

Shortly afterward, the Cheyenne River Sioux Tribe, Oglala Sioux Tribe, and Rosebud Sioux Tribe filed their suit. The Ute Indian Tribe of the Uintah and Ouray Reservation filed a lawsuit the next day.

Other tribes that joined in the complaint are Tulalip, Houlton Band of Maliseet Indians, Nondalton Tribal Council, Arctic Village Council, and Native Village of Venetie, Navajo Nation, Quinault Indian Nation, Pueblo of Picuris, Elk Valley Rancheria, and San Carlos Apache Tribe.

Judge Mehta initially determined that for the purposes of a preliminary injunction, the court was persuaded that “no Alaska Native Corporation satisfies the definition of ‘tribal government’ under the CARES Act and therefore no ANC is eligible for any share of the $8 billion allocated by Congress for tribal governments.”

However, the judge did not rule out the potential for new evidence leading to his later finding that the ANCs are eligible for funding set aside for tribes in this particular case.

He also noted that the ruling temporarily blocking the ANC disbursement meant tribes could see fewer funds in the short term, if Mnuchin “decides to award some money to ANCs and withholds those payments to comply with the court’s order.

“But at least such funds will remain available for later disbursement to federally recognized tribes for coronavirus-related public services, if the court ultimately enters a final judgment in plaintiffs’ favor,” he stated.

Another suit by tribes forced Treasury to begin releasing the Title 5 money after the April 27 deadline for its delivery had come and gone with no disbursement.

Even then, the Department withheld millions from the $4.8 billion it had allocated to tribal governments.

The reason was that on June 8, the Kansas-based Prairie Band Potawatomi Nation sued the Administration over the allocation formula, seeking to block payout of money remaining from the $4.8 billion on the grounds that failure to respect the enrollment numbers would short the tribe $7.65 million of its share.

Yet another tribal complaint ensued, resulting in the judge’s order for release of the $7.65 million, and the Treasury’s announcement of compliance.

Lawmakers have called for an investigation into Sweeney’s role and potential improprieties in the allocation process.

Meanwhile, tribes and tribal members are receiving emergency relief through additional federal channels outside Title 5.

 

(Contact Talli Nauman at talli.nauman@gmail.com

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