Native Tribes Challenge Alaska Native Corporations Over Coronavirus Aid

This 2015 aerial image shows the island village of Kivalina, an Alaska Native community of 400 people. (AP photo/Andrew Harnik)

WASHINGTON (CN) — More than a dozen Native American tribes pleaded with a federal judge Friday to keep $8 billion in coronavirus emergency funds out of the pockets of Alaska Native corporations.

The court battle for Covid-19 relief funds raged in a two-hour video conference hearing with the plaintiffs arguing that the Treasury Department should only disburse the CARES Act money to the 574 tribes that have a government-to-government relationship with the United States.

Direct payments to state and local governments have already begun reinforcing pandemic response efforts across the country, but tribes suffering due to severe shortages in medical equipment and other critical supplies are still waiting on relief from the $2.2 trillion package.

U.S. District Court Judge Amit Mehta said he plans to issue a decision by Monday on whether to block the Treasury Department on Tuesday from sending coronavirus relief funds to Alaska Native corporations.

The definition of “Indian Tribe” is the fault line in Congress’ effort to shore up Native communities financially crippled by the closing of casinos, tourism operations, fishing and farming enterprises and more during the pandemic.

The Alaska Native corporations argue they are included as recipients under the CARES Act, and provide essential support to more than 230 Alaska Native villages through employment, scholarships, land management and other forms of economic drivers.

But attorney Riyaz Kanji, representing the Confederated Tribes of the Chehalis Reservation, argued Friday that none of the corporations are listed as Indian tribes in the Federal Register.

“ANCs are not on equal footing with tribal governments,” Kanji argued.

Attorney Nicole Ducheneaux, representing three South Dakota tribes, explained that as a last resort the corporations have been treated as tribes, but only by means of a tribal government resolution.

“It’s a stopgap effort to make sure that Alaska Natives can get the services that they need,” Ducheneaux said.

“I don’t think there’s any lack of clarity,” Kanji later said, responding to the government’s claim that the plaintiffs do not contest that the corporations can be recognized under the Federally Recognized Indian Tribe List Act of 1994. The attorney also noted there is no consistent agency definition of Indian tribe that Congress could have looked to when drafting the CARES Act.

With the federal government holding Native American lands in trust, the tribal governments had no property taxes to fall back on as the Covid-19 outbreak shuttered business on reservations from coast to coast.

Many tribes, including the Akiak Native Community in Alaska, told the court that without relief from Washington, their governments will be unable to continue providing desperately needed services.

Judge Mehta pressed the Justice Department to explain how the funding distribution could be reversed if the Court of Appeals for the D.C. Circuit overturns his ruling.

“Because it seems to me that once the allocation is made, you’re out of luck,” Mehta said.

Referring to a recoupment function in the coronavirus relief bill, Justice Department attorney Jason Lynch admitted “I’m not sure mechanically how that would work.”

Offering a brief history lesson on the confusion that encircled the definition of “Indian Tribe,” after the Indian Self Determination and Education Assistance Act passed in 1975, Lynch assured the judge and opposing counsel over the video call: “We here this afternoon are not the first to wrestle with this definition.”

Judge Mehta made a concerted effort to drill down into the statutory language underpinning the emergency aid dispute, but said taking up the tribes’ argument would “require some gymnastics.”

“It’s an odd way of Congress to exclude the ANCs,” he added, later saying that the parties did seem to agree that corporations can qualify as tribal government “in a very limited set of circumstances” so any relief should be applied similarly.

The judge questioned whether the Treasury Department could agree to only distribute CARES funding to tribal organizations with self-determination contracts, or “638” contracts, with the Bureau of Indian Affairs and the Indian Health Service.

The Barack Obama-appointed judge said the solution could prevent the congressional relief package from becoming a “grab bag” for Native corporations.

But neither the Justice Department nor the tribes could give an example of a Native corporation that currently holds such a contract.

“We could find that with more time,” Lynch said, exhibiting the speed with which both parties filed briefs over the last week, as the original Sunday deadline to distribute CARES Act funds to tribal governments bore down.

The tribes that have sued are from Alaska, Arizona, California, New Mexico, Main, South Dakota, Utah and Washington state.

Assuring the judge that the tribal governments hailing from outside Alaska do not seek to deprive the state’s Native communities of much-needed aid, Kanji said without a temporary restraining order nothing would stop the Treasury Department from allocating billions in relief to the Alaska Native corporations.

The tribal governments would be left with no avenue to challenge the disbursement, the attorney stressed, adding: “It seems impossible to fathom that that was Congress’ intent.”

As the long-running arguments drew to a close, Christine Williams — the only attorney representing Alaska Native corporations on the video call fraught with technical snags and poor sound quality — implored Mehta for time to counter what she said was misinformation about her clients. The judge assured the attorney he had read the corporations’ amicus briefs.

After several demands to be heard, the attorney assured the judge she did not want to argue with the court.

“Well you’re beginning to do that,” Mehta said, before concluding the hearing abruptly.

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