Supreme Court overrules tribes

 

By Talli Nauman

Native Sun News Today Health & Environment Editor

 

WASHINGTON, D.C. – A June 25 U.S. Supreme Court opinion moved Alaska Native Corporations one step closer to collecting a share of the $8 billion that Congress set aside for Indian tribes in the first Coronavirus pandemic relief act more than a year ago.

The High Court decision overturned a unanimous September ruling that held the corporations are not eligible for the funding since they are for-profit enterprises that lack the requisite status of federally recognized tribal governments.

On remand from SCOTUS, the District of Columbia Circuit Court now must act regarding disbursal of $530 million the U.S. Treasury originally slotted for the ANCs under Title 5 of the March 27, 2020, CARES Act, or Coronavirus Aid, Relief and Economic Security Act.

“The question presented is whether ANCs are ‘Indian tribes’ under the Indian Self-Determination and Education Assistance Act and are therefore eligible to receive the CARES Act relief set aside by the Treasury Department. The court holds that they are,” wrote Supreme Court Justice Sonia Sotomayor.

Four of the other justices on the panel agreed fully with her justifications, one agreed in part, and three dissented.

On behalf of the dissenting panelists, Justice Neil Gorsuch wrote, “Everyone agrees that ANCs are entitled to some CARES Act relief.” However, he noted, “Already, they have received benefits Congress allocated to corporations, like the Paycheck Protection Program. Congress also accounted for ANC shareholders, and all Alaskans, when it directed over $2 billion to the state. In fact, Alaska received more money per capita than all but two other states,” he said.

“The Alaska Native Villages received hundreds of millions of those dollars because everyone agrees they qualify as tribal governments for purposes of the CARES Act. This suit concerns only the ANCs’ claim of entitlement to additional funds statutorily reserved for tribal governments,” he emphasized.

Alaska has 229 tribal governments in native villages, which account for more than a third of the total 574 federally-recognized U.S. tribes. However, the state is home to only 106,660 Alaskan Natives, or 1.5 percent of the national indigenous population.

The 13 Alaska Native regional corporations and some 200 village corporations are the result of 1971   enabling legislation in the Alaska Native Claims Settlement Act. Pursuant to the 1975 Indian Self-Determination and Education Assistance Act, or ISDA, the Federally Recognized Indian Tribe List Act of 1994 includes none of the corporations.

This was the argument in the lawsuits filed by the Cheyenne River, Oglala, and Rosebud Sioux tribes to freeze distribution to ANCs. The National Congress of American Indians and dozens of other tribes joined in the fray. The consolidation of their complaints was called The Confederated Tribes of the Chehalis Reservation v. U.S. Treasury Secretary Steven Mnuchin.

Mnuchin said he had elected to include the Alaska Native Corporations 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. While investigations of Sweeney were looming on the Hill, a new presidential administration transferred Mnuchin’s job to Janet Yellen.

Secretary Yellen inherited Treasury’s commitment to appeal to the Supreme Court where the Alaska Native Village Corp. Association also was appealing the same ruling. That association and another welcomed the court decision holding that the corporations should be recognized under the Indian Self Determination and Education Assistance Act’s definition of tribes in the case that is now Yellen v. Confederated Tribes of the Chehalis Reservation.

The associations noted that the decision affirmed “what the federal government has maintained for almost half a century: ANCs are Indian tribes under the Indian Self-Determination and Education Assistance Act.”

National Congress of American Indians President Fawn Sharp  responded with a conciliator note, saying “We must continue to all work together with the United States to actively support strong nation-to-nation relationships.”

Navajo Nation President Jonathan Nez clarified, “We have a strong coalition of tribes that are disappointed in the Supreme Court’s ruling. This case was never about the funds. Instead, it was about upholding tribal sovereignty and the status of federally-recognized tribes.”

The Navajo Nation was among the many that sued to prevent allocations to the corporations, because “many tribal nations have had to fight hard over the course of many years to gain federal recognition to be eligible for programs and services that ultimately benefit our people across Indian country. The ruling undermines federally-recognized tribes and will have consequences far beyond the allocation of CARES Act dollars.”

However, he said, “We as federally-recognized tribes will continue to stand strong and advocate for our tribal nations. I recommend that Congress clarify that Alaska Native Corporations are not federally recognized tribes under the Indian Self-Determination and Education Assistance Act to avoid this issue in the future,” he added.

The most recent pandemic aid pact, known as the American Rescue Plan Act, excludes ANCs from tribal funding, targeting only the governments on the Federally Recognized Indian Tribe List Act of 1994, which does not cover corporate for-profit enterprises chartered by a state.

The BIA is in charge of a $900-million disbursement plan addressing all of the program activities by Congress stipulated in the act:

Potable Water Delivery – $20 million

Housing Improvement – $100 million

Tribal payments and direct service for Tribal Government, Social Services, Public Safety and Justice, Indian Child Welfare, and other related expenses – $772.5 million. These funds will be allocated as follows:

$700 million through the Aid to Tribal Government funding line, thereby allowing tribes to reprogram across Tribal Priority Allocation (TPA) lines, as necessary.  Funding will be allocated to tribes listed in the BIA’s Federal Register notice.  Allocations will be based on tribal enrollment data, using a distribution approach that groups tribes by enrollment size.

$30 million for law enforcement and detentions funding.

$30 million for tribes in Public Law 83-280, also known as P.L. 280, states through the Social Services line.  The majority of tribes in these states do not receive law enforcement support from the BIA.  To address their unique needs, these funds can be used for tribal safety needs that fall outside of a formal law enforcement program.  The tribe can determine whether to reprogram them as necessary to other areas like tribal courts.  In addition, tribes can provide funding to BIA regional or agency offices for direct support services, if necessary.

$12.5 million will be held centrally to allocate for unexpected exigencies, as necessary.

Administrative and Oversight Costs – $7.5 million: These funds will be managed centrally to support maintaining public health capabilities to have an informed Indian Affairs response to COVID-19, IT surge needs, adaptations for COVID safety requirements, Personal Protective Equipment (PPE), staff surge needs, and project management.

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

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