By Andrew Westney

Law360 (April 23, 2020, 10:00 PM EDT) -- Treasury Secretary Steven Mnuchin told a D.C. federal judge Thursday that Alaska Native Corporations can claim a share of $8 billion in funding for tribal governments fighting the COVID-19 pandemic, saying it would be unfair to cut them out in favor of federally recognized tribes.

Mnuchin asked the court to reject a bid by a group of eleven tribes to prevent any of the $8 billion in direct tribal funding in the $2 trillion Coronavirus Aid, Relief and Economic Security, or CARES, Act from going to the for-profit corporations, which were created to resolve indigenous land claims in Alaska. 

While the plaintiff tribes have argued that Congress meant the funding to be divided just among the 574 federally recognized tribes and that including the ANCs could cost each tribe millions of dollars, Mnuchin said Thursday that the ANCs qualify as "Indian tribes" under decades of case law regarding the Indian Self-Determination and Education Assistance Act, whose definition of tribes was adopted in the CARES Act.

And the tribes that filed suit, including the Confederated Tribes of the Chehalis Reservation, the Tulalip Tribes, the Navajo Nation and three Alaska tribes, haven't justified an injunction, Mnuchin said.

"While plaintiffs are no doubt in need of funding as a result of the COVID-19 epidemic, they have not shown that the diminution of funding they stand to receive under defendant's determination, as compared to the amount that they would receive under their preferred interpretation of the CARES Act, will cause them irreparable harm," Mnuchin said.

The balance of equities is in the ANCs' favor, too, Mnuchin said, because the tribes' interpretation of the law would let the ANCs have no funding, while the plaintiff tribes "stand merely to receive less funding—30%, by their estimation (although the true amount presently remains unclear)."

The reason that amount is not yet known is that the Treasury Department hasn't settled on a formula for divvying up the funds. In guidance announcing the department's position on ANCs posted Thursday, Treasury said it "will post details of the allocation on this website" once it determines how much each applicant will receive.

The federal government filed its opposition to the tribes' injunction request a day late, having told the court on Wednesday that Treasury still hadn't decided whether ANCs should have part of the funding and saying that it wouldn't start delivering any of the $8 billion to tribes until Tuesday, April 28, at the earliest — missing a deadline of Sunday, April 26, under the CARES Act.

During a scheduling hearing by teleconference Thursday morning, U.S. District Judge Amit P. Mehta agreed to let the government file its brief in the afternoon, and reset a videoconference hearing on the tribes' injunction motion for 3 p.m. EDT on Friday.

Three Alaska tribes and three tribes from the Lower 48 states filed the original complaint in the case on April 17, saying the 12 Alaska Native regional corporations and 225 Alaska Native village corporations, which together have billions of dollars in revenue and are some of the largest private landowners in Alaska, weren't intended to have any of the $8 billion "tribal stabilization fund" included in the CARES Act.

The fund included in Section 601 of the law makes emergency money available for costs incurred fighting the virus from the Treasury Department, in consultation with the Department of the Interior's Bureau of Indian Affairs.

The tribes followed that up Monday with a request to Judge Mehta for a preliminary injunction and temporary restraining order, saying the Treasury Department was planning to illegally send "desperately needed funds" meant for tribal governments to the for-profit companies.

The six original plaintiff tribes are the Confederated Tribes of the Chehalis Reservation and the Tulalip Tribes, located in Washington state; the Houlton Band of Maliseet Indians, in Maine; and the Akiak Native Community, Asa'carsarmiut Tribe and Aleut Community of St. Paul Island, in Alaska.

Five more tribes joined the suit on Tuesday as the plaintiffs filed an amended complaint: the Navajo Nation in Arizona, New Mexico and Utah; Quinault Indian Nation in Washington state; the Pueblo of Picuris in New Mexico; the San Carlos Apache Tribe in Arizona; and Elk Valley Rancheria in California.

The controversy over the inclusion of ANCs in the funding centers on language in the CARES Act that identifies "Indian tribes" based on a definition from the ISDEAA that includes Alaska Native corporations, as well as a definition of "tribal governments" in the new law.

The ISDEAA, the law that governs federal self-determination contracts with tribes, defines "Indian tribe" as any "tribe, band, nation or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians."

The tribes have said that the ANCs don't meet the last part of the definition because they are not "recognized as eligible" for those federal programs.

And the ANCs are not tribal governments, but companies that can seek funding through other parts of the CARES Act that the tribes cannot, according to the complaint.

During the Thursday morning hearing, counsel for the tribes and the federal government agreed that Treasury will still have the authority to make payments after the April 26 deadline to distribute the money under the CARES Act has passed.

However, Riyaz Kanji of Kanji & Katzen PLLC said there is "great concern" on the part of the plaintiff tribes and other tribes that "this deadline, once rendered malleable, will continue to be extended" by Treasury for potentially "an indefinite period."

In Mnuchin's brief Thursday, he said that the plaintiff tribes "are asking this court to second-guess the executive branch's time-pressed determination about which Indian tribes qualify for payments intended to address a public-health emergency," and "this court should not review the executive's emergency determinations."

Mnuchin noted that the department's guidance released Thursday indicates that it "will take steps to account for any overlap between Alaskan Native village membership and ANC shareholders or other beneficiaries," which the tribes have argued could lead to "double dipping."

Lisa Koop Gunn of the Tulalip Tribes said in a statement Thursday that the plaintiff tribes "look forward to a decision on our motion."

Meanwhile, the Cheyenne River Sioux Tribe, Rosebud Sioux Tribe and the Oglala Sioux Tribe, all in South Dakota, hit Mnuchin with their own suit Wednesday over ANCs receiving COVID-19 relief funding.

Judge Mehta consolidated the Sioux tribes' suit with the current suit on Thursday.

The tribes are represented by Riyaz Kanji and Cory J. Albright of Kanji & Katzen PLLC, Harold Chesnin of the Confederated Tribes of the Chehalis Reservation, and Lisa Koop Gunn of the Tulalip Tribes.

Mnuchin is represented by Assistant Attorney General Joseph H. Hunt, Assistant Branch Director Eric Womack and Jason C. Lynch of the U.S. Department of Justice's Civil Division, Federal Programs Branch.

The case is Confederated Tribes of the Chehalis Reservation v. Mnuchin, case number 1:20-cv-01002, in the U.S. District Court for the District of Columbia.

--Additional reporting by Stephen Cooper and Andrew Kragie. Editing by Jill Coffey.

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