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Oral arguments heard in appeal of federal lawsuit over Tribal CARES Act funding

Sep 11, 2020

(Photo courtesy U.S. Court of Appeals District of Columbia Circuit)

The D.C. Circuit of the U.S. Court of Appeals heard Friday oral arguments in a federal court case on whether Alaska Native corporations are eligible for part of CARES Act funding. 

The original lawsuit filed in April claims that Alaska Native corporations should not be eligible to receive a portion of about $8 billion of a Tribal-government set-aside of the federal COVID-19 relief money. 

The idea is that  Native corporations are not Tribal governments – at least not in the way that Lower 48 Tribes are.

Attorney Riyaz Kanji represents the Lower 48 Tribes, and others, that sued.

He says the definition of eligibility within the CARES Act excludes Alaska Native corporations from qualifying for the money. He used a 1975 law called the Indian Self Determination and Education Act, or ISDEA to support his argument. 

The Indian Self-Determination act gave Indian Tribes the authority to contract with the federal government to operate programs for their Tribal members.

Essentially, he says that law allowed Alaska Native Corporations to operate as Tribal Governments, but he argued that is not the same as being a Tribal Government. 

“The concern here I should underscore is not only the money, which is incredibly important for the governmental purposes for which it was intended, but also the principle here the functioning of ISDEA, but as well as many statutes that followed in its stead. Because ISDEA was meant to buttress, support, and foster Tribal self-determination.”

The appeals debate hinged on whether the Alaska Native Claims Settlement Act (1971), which largely formed the Alaska Native regional and village corporations we know today, recognized the corporations as Tribes or Tribal governments.

Attorney Adam Jed represents the federal government in the appeals process. 

He argues that both ANCSA and the Self-Determination Act allow for Alaska Native corporations to be eligible for the federal funding.

“This concept is kind of a singular package,” he said. “The idea is to use some of the language of the early 1800s Supreme Court cases that Indian Tribes are these kind of this domestic-dependent nations. That the federal government is recognizing or acknowledging their sovereign status and what comes with that is performing a government-to-government relationship. And also having this obligation to provide specific services to them.”

Following the oral arguments, the ANCSA Regional Association and the Alaska Native Village Corporation Association released a joint statement in a news release.

According to the release, ”Delays caused by litigation, along with the fast-approaching December deadline for expending funds, mean that ANCs may be left with only weeks to deploy these funds to combat the devastating effects of this public health emergency in our Native communities. We look forward to a prompt decision from the U.S. Court of Appeals upholding our right to receive CARES Act funding.”

The original lawsuit – The Confederated Tribes of the Chehalis Reservation et al v. Steve Mnuchin -- names the U.S. Treasury Secretary Mnuchin as the defendant, because the Treasury took the lead on allocating funds to Tribes.

At least three Alaska Native villages –Akiak Native Community, Aleut Community of St. Paul Island, and the Asa’carsarmiut Tribe -- joined the Lower 48 effort in suing the federal government.

In July, a federal judge ruled against the Lower 48 Tribes, but issued a temporary injunction which prevented Alaska Native corporations from receiving the Tribal set-aside in coronavirus funding. That injunction paved the way for the Tribes to appeal the decision.