Appeals court rules no relief funds for Alaska Native Corporations

WASHINGTON – In the most recent about-face on CARES Act funding for Alaska Native Corporations, a federal appeals court panel ruled Sept. 25 that they are not eligible for any of the $8 billion in pandemic relief Congress earmarked for tribal governments.

The decision responds to the consolidated cases of dozens of plaintiff American Indian tribes, including Alaska Native villages, which maintain that the corporations are for-profit state-chartered businesses and have no government-to-government trust relationship with the United States that would qualify them to administer the funding.

The tribes prevented the disbursement to the corporations early this year, suing the U.S. Treasury Department for its interpretation of Congressional intent in the March allocation to tribal and local governments provided by Title V in the Coronavirus Aid, Relief and Economic Security (CARES) Act.

Treasury Secretary Steven Mnuchin opted to include the corporations at the recommendation of Assistant Interior Secretary for Indian Affairs Tara Sweeney, an Alaska Native Corporation shareholder.

District of Columbia Federal Judge Ahmet P. Mehta ruled them eligible in July but barred disbursement of their share pending the appeal that led to the most recent decision — reversing his.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, thanked Mehta for his opinions in the cases, saying: “In considering the difficult legal question now before us, we have benefitted greatly from the district court’s two thoughtful opinions, rendered under severe time constraints, which carefully assess the arguments on both sides.”

The unanimous higher court decision hinged on the 1975 Indian Self Determination and Educational Assistance Act. Under it, “Because no Alaska Native Corporation has been federally recognized as an Indian tribe,” Circuit Judge Gregory G.  Katsas wrote, “We hold that Alaska Native Corporations are not eligible for funding under Title V of the CARES Act.”

Big Fire Law and Policy Group, which represented the Cheyenne River Sioux Tribe in the case, called the decision an “excellent result for sovereign tribal governments.”

The Alaska Regional Association and the Alaska Native Village Corporation Association lamented, “This ruling is a devastating blow to Alaska Native communities facing an alarming increase in Covid-19.”

Noting that data shows Alaska Native people suffer from a disproportionate number of infections, hospitalizations and deaths, the organization issued a statement saying, “We fear this deeply flawed ruling will only make things worse by keeping critical health services and economic relief from reaching our remote communities and villages who are most at risk.”

Circuit Judge Karen LeCraft Henderson concurred with Katsus’ opinion but also acknowledged their plight. “This decision is an unfortunate and unintended consequence of high-stakes, time-sensitive legislative drafting,” she said.

“It is indisputable that the services Alaska Native Corporations provide to Alaska Native communities—including healthcare, elder care, educational support and housing assistance—have been made only more vital due to the pandemic.”

However, Katsas, noted, “We are confident that, if there are Alaska Natives uncared for because they are not enrolled in any recognized village, either the State of Alaska or the Department of Health and Human Services will be able to fill the void.”

Alaska has 229 native tribal governments, more than a third of the U.S. total 574, but only 106,660 Alaskan Natives, or 1.5 percent of the U.S. indigenous population.

The 13 Alaska Native regional corporations and some 200 village corporations came about due to 1971 Congressional enabling legislation in the Alaska Native Claims Settlement Act.

The Title V ruling may have occurred in the nick of time, since at least 10 percent of tribal CARES Act funds were withheld due to the conflicting interpretations, and any financing not distributed by Sept. 30 was scheduled to lapse.

Yet, more than pandemic relief money was at stake, as plaintiffs sought to assure a precedent in their favor.

A number of associations joined in the fray to file a friends-of-the-court brief on the side of plaintiffs: the National Congress of American Indians; Counsel for Affiliated Tribes of Northwest Indians; All Pueblo Council of Governors; California Tribal Chairpersons’ Association; Great Plains Tribal Chairmen’s Association, Inc.; Midwest Alliance of Sovereign Tribes; United South and Eastern Tribes Sovereignty Protection Fund; National Indian Gaming Association; Arizona Indian Gaming Association; and California Nations Indian Gaming Association.

“They each have an interest in this case because it involves important matters of tribal sovereignty, and the allocation of desperately needed relief funds to assist tribal governments in dealing with the Covid-19 pandemic,” they submitted.

The common mission of the intervenors “is to protect the sovereign, governmental authority of federally recognized Indian tribes, and this includes Alaska Native villages,” they said in their brief, adding:

“They do so in this case in the face of private corporations striving to cloak themselves with the mantle of tribal sovereignty, professing noble intentions. Tribal governmental status, however, is unique. And it is here reserved for federally recognized Indian tribes. It cannot, and should not, be so easily usurped.”

The importance of establishing a legal precedent in the use of language pertaining to tribal government rights could be measured by the sheer numbers of plaintiffs in the case — ranging from the tiny Picuris Pueblo in New Mexico, represented by attorney Richard Hughes, to the Rosebud Sioux Tribe in South Dakota, represented by Native American Rights Fund.

In addition to the Confederated Tribes of the Chehalis Reservation, for which the case is named, plaintiffs in the appeal are Ute Indian Tribe of the Uintah and Ouray Reservation, Cheyenne River Sioux Tribe, Rosebud Sioux Tribe, Nondalton Tribal Council, Arctic Village Council, and Native Village of Venetie Tribal Government, Confederated Tribes of the Chehalis Reservation, Tulalip Tribe, Houlton Band of Maliseet Indians, Akiak Native Community, Asa’carsarmiut Tribe, Aleut Community of St. Paul Island, Navajo Nation, Pueblo of Picuris, Quinault Indian Tribe, Elk Valley Rancheria, and San Carlos Apache Tribe.

The Oglala Sioux Tribe was a plaintiff in the lower court lawsuit.

 

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

The post Appeals court rules no relief funds for Alaska Native Corporations first appeared on Native Sun News Today.

Visit Original Source