Tribes Win Decision in Battle Over Covid Emergency Funds

This Sept. 2, 2015, file aerial image shows the island village of Kivalina, an Alaska Native community of 400 people. (AP file photo/Andrew Harnik)

WASHINGTON (CN) — The D.C. Circuit shot down a months-long push by private corporations providing health care to Alaskan Native Americans to access coronavirus relief funds earmarked by Congress for tribes. 

A federal judge had ruled the Alaska Native Corporations are entitled to more than $162 million in federal funds, but a three-judge panel reversed the decision Friday. 

Six months after Congress passed the $2.2 trillion Covid-19 relief package, the battle raged over whether the so-called ANCs qualified to collect from the $8 billion that lawmakers set aside for “tribal governments.” 

Eighteen federally recognized tribes in Alaska and the Lower 48 sued the Treasury Department over its plan to hand over a portion of the CARES funds to the private corporations.

After hearing arguments two weeks ago, the Washington appeals court concluded Friday that the ANCs do not qualify, nodding to the absence of a single ANC on the current list of federally recognized Indian tribes. 

“The ANCs have not satisfied the recognition clause as we construe it. They do not contend that the United States has acknowledged a political relationship with them government-to-government,” wrote U.S. Circuit Judge Gregory G. Katsas, a Donald Trump appointee, referring to the definition of “Indian tribe” under the Indian Self-Determination Act. 

U.S. Circuit Judge Karen Henderson, a George H.W. Bush appointee, joined her colleagues in the ruling but called it “an unfortunate and unintended consequence of high-stakes, time-sensitive legislative drafting.”

Formed in a 1971 agreement between the federal government, the state of Alaska and Alaskan Natives, ANCs had warned the D.C. Circuit that overturning the district ruling could have “sweeping adverse consequences” for its shareholders. 

They argued that some remote Native communities rely entirely on ANCs for critical services urgently needed during the pandemic, including health care, educational support and housing assistance. 

The short answer is statutory text prevails, the court responded, before turning to the 1971 law in which Congress “expressly preserves ‘any governmental programs otherwise available to the Native people of Alaska as citizens of the United States or the State of Alaska.’” 

“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,” Katsas wrote. 

Henderson argued the Covid-19 “virus respects no geographic or political boundaries” and disproportionately impacted Native communities as it swept across the country. 

“I can think of no reason that the Congress would exclude ANCs (and thus exclude many remote and vulnerable Alaska Natives) from receiving and expending much-needed Title V funds,” the judge wrote. “Indian law, however, does not have a simple history or statutory scheme and ‘no amount of wishing will give it a simple future.’”

Attorney Riyaz Kanji, representing the tribes suing the government, said Friday the plaintiffs appreciated the court’s “thorough, careful exposition of the statutory and historical factors” that make clear ANCs are not “Indian tribes.”

The Justice Department and an attorney for the ANCs did not respond to requests for comment Friday afternoon. 

U.S. Circuit Judge Patricia A. Millett, an Obama appointee, rounded out the panel issuing the decision in the case Confederated Tribes v. Steven Mnuchin.

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