High Court Grapples With Virus Aid for Tribes

The implications of denying aid to private entities that serve Native peoples in Alaska could reach far beyond the Covid-19 pandemic.

A woman walks before dawn in Toksook Bay, Alaska, a mostly Yuip’ik village on the edge of the Bering Sea, on Jan. 20, 2020. (AP Photo/Gregory Bull, File)

WASHINGTON (CN) —  Millions of dollars in relief funding are on the line as the U.S. Supreme Court decides which Native populations are entitled to coronavirus aid. In oral arguments Monday, however, the justices seemed concerned with the complications that could reach far beyond the Covid-19 pandemic. 

“The potential ramifications would be staggering: destabilizing the entire tribal health and social services system in Alaska,” Justice Neil Gorsuch said during oral arguments.

The case stems from the distribution of CARES Act funding in March 2020, when the Treasury Department designated $8 billion for tribal governments but included 229 entities known as Alaskan Native Corporations as recipients. Established by Congress in 1971, such businesses serve tribal areas by managing land, funds and other rights on behalf of Native villages.

They operate for profit, however, spurring a federal complaint from six tribes that said diversion of the funds to ANCs would deprived tribes of basic needs. Government officials brought the case to the Supreme Court this year after the D.C. Circuit ruled that an Alaska Native Corporation cannot qualify as an Indian tribe unless “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 

“The D.C. Circuit here really decided the case on the broadest possible ground,” Matthew Guarnieri, assistant to the U.S. solicitor general, told the justices Monday, saying the determination about tribal status went against “decades of practice to the contrary.”

Much of oral arguments were dedicated to dissecting a 1975 definition for tribe under the Indian Self-Determination and Education Assistance Act, or ISDEA. Representing the Ute Reservation, Patterson Earnhart attorney Jeffrey Scott Rasmussen said the law clearly excludes ANCs.

Many justices seemed more concerned, however, with the long-term effects of excluding ANCs from funding, as Guarnieri told justices that the government has “grave concerns” about what this could mean for federal programs for Native Alaskans. 

“Why are you treating Alaska Natives as kind of second class?” Justice Brett Kavanaugh asked.

Justice Elena Sotomayor even asked the Guarnieri how the justices could rule in a narrow way that affects only the CARES Act and not the many other laws that the case implicates. 

“There are Alaskan natives who are not enrolled members of a village who receive significant services from ANCs — services which are directly impacted by the Covid pandemic,” said Chief Justice John Roberts Jr. “Tens of thousands of people fit that description.”

ANCs say that if they are no longer eligible to provide access to housing, education, health and economic support, then no other organization can fill the need. 

“We hold strong our belief that Alaska Native people should not be punished for this unique system that Congress established for us 50 years ago,” the ANCSA (Alaska Native Claims Settlement Act) Regional Association said in a statement following oral arguments. 

A ruling from the justices is due by the end of June. 

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