By Andrew Westney

Law360 (April 16, 2020, 7:38 PM EDT) -- Cheyenne River Sioux Tribe Chairman Harold Frazier told Law360 on Thursday that his tribe and others plan to file a lawsuit Friday to challenge the federal government's decision to allow Alaska Native Corporations to share in $8 billion in funding for tribes combating the coronavirus pandemic.

Frazier, who is also chairman of the Great Plains Tribal Chairmen's Association, said that the corporations, known as ANCs, should not receive the funding from the $2 trillion Coronavirus Aid, Relief and Economic Security Act, signed into law on March 27, "because they're not tribal governments, they're state-chartered business corporations."

The South Dakota tribe intends to file suit Friday as the federal government decides how to disburse payments from the law's $8 billion "tribal stabilization fund" and ahead of a deadline of 11:59 p.m. Friday for tribes to submit information to the U.S. Treasury Department seeking funds.

"I've also talked to other tribes and they're interested as well, so there'll be several of us filing," Frazier said, adding that the suit might be filed in tribal court.

Frazier wrote a letter on Tuesday heavily criticizing the inclusion of ANCs in funding under the CARES Act and calling for the removal of Assistant Secretary of Indian Affairs Tara Sweeney for her handling of the issue, claiming she has a conflict as a former Arctic Slope Regional Corp. official and "has lost the confidence of Indian tribes."

Sweeney was unanimously confirmed in June 2018 as President Donald Trump's pick for assistant secretary for Indian Affairs, making her the first Alaska Native and only the second woman to hold the job. 

A member of the Native Village of Barrow and the Iñupiat Community of the Arctic Slope, Sweeney worked for Arctic Slope Regional Corp. for almost 20 years, including as executive vice president of external affairs. 

In that role for the "$2.6 billion corporation" that was "the largest locally owned and operated business in Alaska," Sweeney's duties included "engagement with federal and state executive and legislative branches on improving policies affecting Indian energy, taxation, resource development, government contracting, broadband development and access to capital," according to a statement from the Department of the Interior following her confirmation.

The National Congress of American Indians and other tribal organizations and leaders have also criticized the inclusion of ANCs in the funding, saying the finite pot of money should only go to federally recognized tribes.

The $8 billion "tribal stabilization fund" in Section 601 of the CARES Act makes emergency funds for costs incurred fighting the virus that causes COVID-19 available from the Treasury Department, in consultation with the DOI's Bureau of Indian Affairs.

The controversy over the inclusion of ANCs in the funding hinges on language in the CARES Act that defines "Indian tribes" based on a definition from the Indian Self-Determination and Education Assistance Act that includes Alaska Native Corporations.

Specifically, the ISDEAA, the law that governs federal self-determination contracts with tribes, defines "Indian tribe" as "any Indian 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."

While the law was touted by supporters at its enactment for benefiting recognized tribes, Frazier said Thursday that the disputed language "was always going to be in there" to bring in ANCs, too.

The DOI said in a statement Thursday that Sweeney is "committed to supporting all American Indians and Alaska Natives, and to suggest she has personal motives or that she is attempting to divert funds away from American Indians is completely false."

"Her approach has always been focused on inclusiveness, transparency and partnerships. It is unfortunate that during a time all should be united, there are those who are seeking to divide the American Indian and Alaska Native community and are suggesting to ignore the mandate of Congress and exclude eligible entities as defined by law," the spokesperson added.

The spokesperson pointed to Sweeney's call Monday with Frazier and other leaders of the Great Plains Tribal Chairmen's Association, held "as a courtesy, to help the leaders from that region understand the CARES Act process, listen to their concerns and address any of their questions."

The dispute over the proper interpretation of the CARES Act is further complicated by another definition included in the law, which defines a "tribal government" for purposes of the law as the "recognized governing body of an Indian tribe," which the NCAI argued that the ANCs did not meet because they have a corporate structure and don't have a government-to-government relationship with the United States.

In an op-ed published in Indian Country Today on Thursday, leaders of four ANCs backed Sweeney and said that "what is being portrayed by NCAI in the media and in letters to Congress and the executive branch is patently false."

"The law is clear" that Alaska Native villages, Alaska Native regional corporations and Alaska Native village corporations qualify as tribes under the CARES Act, and "our legal mandate as Alaska Native corporations is to support our Alaska Native communities and shareholders economically, culturally and socially," according to the op-ed from Bering Straits Native Corporation president and CEO Gail Schubert, CIRI president and CEO Sophie Minich, Chugach Alaska Corporation board chair Sheri Buretta and Koniag president Shauna Hegna.

A spokesman for Arctic Slope Regional Corp. declined to comment Wednesday.

Representatives for several other Alaska Native Corporations, the Alaska Native Village Corp. Association, the Treasury Department, Alaska Gov. Mike Dunleavy and Alaska's Congressional delegation did not immediately respond to request for comment Thursday.

—Additional reporting by Stephen Cooper and Andrew Kragie. Editing by Peter Rozovsky.

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