Tribes Dispute Whether Native Corporations Qualify for Virus-Relief Funding

A woman walks before dawn in Toksook Bay, Alaska, on Jan. 20, 2020. (AP Photo/Gregory Bull)

WASHINGTON (CN) — A high-stakes tug-of-war over billions of dollars in Covid-19 emergency funds played out in federal court in Washington, D.C., Friday between Native American tribes from across the country and Alaska Native corporations.

Congress set aside $8 billion for tribal governments in March, but in the months that followed a tense legal battle has tied up a large portion of the relief funding provided through the CARES Act.

Dozens of tribes sued the Treasury Department when it drew up plans to send money to Alaska Native corporations, arguing the private business corporations are not eligible for funding. U.S. District Judge Amit Mehta partially rejected the tribes’ request to block the distribution of funds, ordering the government instead to only hold off sending money to ANCs as the case unfolded.

The private corporations argued in a teleconference hearing Friday that they carry the weight of providing services to Alaskan Natives in remote areas of the state where there is no federally recognized tribe to step up.

“Getting the tribal services to Alaskan Natives would be rendered highly ineffective, if not completely disrupted, if the ANCs were not given that recognition,” attorney Daniel Wolff said, arguing that ANCs should be recognized as playing the role of Indian tribes.

Some of the remote villages ANCs service are without running water, deep in the interior of Alaska nowhere near roads and accessible by dog sled or snowmobile most of the year, Wolff said.

“But they’ve got huge logistical issues and the sovereign tribal entities aren’t equipped to deal with that,” the attorney said, telling the judge. “ANCs step into the void, your honor.”

Currently presiding over the case argued Friday and two other lawsuits over the CARES Act funding for Native tribes, Mehta looked to the plaintiffs to address the ANCs’ argument that Congress contemplated that the private corporations would qualify as Indian tribes.

“To read the eligibility clause to essentially exclude that in the same breath as they’re included doesn’t really make a lot of sense,” Mehta said.

Attorney Riyaz Kanji, arguing for tribes from Alaska and the Lower 48, said Congress in 1975 did contemplate whether ANCs satisfied the eligibility clause to be federally recognized under the Indian Self Determination and Education Assistance Act.

“This was a time when there was a great deal of uncertainty and novelty about the situation in Alaska,” Kanji said. “And so Congress prudently left the door open. The fact that it did does not mean that it enshrined in any way, shape or form that Native corporations had to be treated as tribes.”

Mehta later asked the tribes’ attorney to clarify whether Congress has ever federally recognized ANCs as tribes.

“That’s never happened, correct?” the judge asked.

“That’s correct,” Kanji replied.

The ANCs had strongly anchored their arguments around the example of one private corporation, Cook Inlet Region Inc., providing welfare assistance, job placement and health care among other services to around 60,000 Alaskan Natives in the same manner as a tribal government.

Wolff argued the example of the Anchorage-based ANC “blows the roof off” the claim that the private corporations are not tribes.

But an attorney for the Native American Rights Fund dismantled the claim, telling the judge that Cook Inlet Region Inc. is a standalone example.

“It took an act of Congress in order to make that the only exception,” attorney Natalie Landreth said. “And that’s a really important thing to understand, is that is not tied to any of these statutes.”

Landreth argued that the private corporations know they are not governments.

“The ANCS have said, let me quote, ‘a governing body of Alaska Natives would constitute an Indian tribal government, but a corporation would not because it does not exercise governmental functions,’” she said.

The attorney backed up Kanji’s argument that ANCs are not positioned the same as the tribal governments.

Across the four corners of the country, 574 federally recognized tribal governments maintain a government-to-government relationship with the United States.

But ANCs are not among them, Kanji said, arguing that Congress has allowed the private corporations “to stand in the shoes of the governing tribe” when necessary, but do not consider them to be tribal governments.

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