By Andrew Westney

Law360 (April 17, 2020, 8:57 PM EDT) -- The U.S. Department of the Treasury's decision to let Alaska Native corporations claim part of $8 billion in funding to fight the coronavirus pandemic took tribal leaders by surprise, as the attorneys who helped develop the law understood it to mean funding would be set aside only for federally recognized tribes, the National Congress of American Indians' CEO told Law360 on Friday.

The NCAI's Kevin J. Allis and other leaders of tribes and tribal organizations have spent the last week pushing back hard against Treasury's plan to allow the 12 Alaska Native regional corporations and over 200 village corporations apply for funding, which Allis said could cost federally recognized tribes a major chunk of the $8 billion under the $2 trillion Coronavirus Aid, Relief and Economic Security Act.

While the CARES Act, which was signed into law on March 27, includes language identifying Alaska Native corporations as tribes for purposes of the law, it also indicates the funding is meant for "tribal governments," which excludes the ANCs, he said.

"You have to make the stretch that the board of a corporation incorporated under state law is somehow a governing body in a political sense to give it the status that would be necessary to receive government relief funds," Allis said. "That's crazy; it makes no sense."

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

Securing the funding was seen as a major win for tribes, but Allis got a shock late last week when a Treasury representative "blindsided" the NCAI with the news that the corporations could be eligible.

The controversy hinges on language in the CARES Act that identifies "Indian tribes" using a definition from the Indian Self-Determination and Education Assistance Act, which includes Alaska Native corporations.

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."

Dozens of attorneys from firms across the country representing tribes, tribal organizations and ANCs took part in work groups organized by the NCAI to establish priorities and put together specific language to assist lawmakers with drafting the bill, and then came back together after the law's enactment to help shape guidance for federal agencies, said Allis, an enrolled member of the Forest County Potawatomi Community.

"At no point — and some of the best lawyer-lobbyists in the country are part of this — at no point did this issue [of ANCs being included in funding] ever come up," Allis said.

"Why? Because everybody, the seasoned people that understand federal Indian law, that understand the definition of Indian tribe, that understood and looked at every word in the CARES Act, understood that this was clearly a government funding program," he added.

And the definition of "tribal government" in the CARES Act as the "recognized governing body of an Indian tribe" doesn't cover ANCs because they don't have a government-to-government relationship with the United States, and because "recognized" is a term of art in Indian law referring specifically to the 574 tribal governments currently recognized by the federal government, he added.

Based on the information the Treasury Department has requested from tribes, its formula for calculating payments could swing heavily in the ANCs' favor, Allis said.

The department has asked for tribes' data on population, land holdings and employees, and the latter two categories in particular could benefit ANCs, Allis said, as the regional corporations include some of the largest private landowners in Alaska and together employ thousands of workers.

The ANCs own some 44 million acres under the Alaska Native Claims Settlement Act, and if that figure is included in Treasury's payment formula on a par with tribal trust land, that "changes the whole number," he said.

"It could get weighted all wrong, and that's our concern," he said.

Applicants for the funding were given until just before midnight Friday to enter their information through the Treasury Department's online portal, and the department is expected to complete its calculations and start to send out money early Tuesday, Allis said.

The NCAI's criticism of the ANCs' inclusion, and that from other tribal organizations and tribes, has drawn fire from several ANC leaders, who defended Assistant Secretary of Indian Affairs Tara Sweeney against claims she is too close to the companies as a longtime former official with the Arctic Slope Regional Corp.

In an op-ed published in Indian Country Today on Thursday, 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 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," the leaders said.

While another tribal group, the Great Plains Tribal Chairmen's Association, had called for Sweeney's removal, Allis said the NCAI just wants her to recuse herself if there is "even a perception of a conflict in this particular situation."

The ANC leaders said their organizations and federally recognized tribes should stick together, saying "when we publicly bicker and attack a longtime tribal advocate in a time of crisis, the benefit comes not to our tribes and our people, but to those who oppose our traditions, self-determination and economic opportunity."

The DOI also suggested that those criticizing Sweeney and the ANCs were sowing discord between federally recognized tribes and ANCs, saying in a statement Thursday that "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."

Allis said Friday that "this is not a fight of the lower 48 versus Alaska" or between tribes and the ANCs, but a matter of following Congress' intent for the funding to go to federally recognized tribes, including scores of tribes in Alaska.

Meanwhile, three Alaska tribes and three tribes from the continental United States hit Treasury Secretary Steven Mnuchin with a complaint Friday over COVID-19 funding going to the ANCs, alleging Mnuchin "threatens to defy Congress' mandate by diverting Title V relief funds away from these sovereign tribal governments" to the ANCs and their shareholders.

Allis said the suit needed to be filed now in the hopes of getting a ruling from the D.C. federal court by Monday, before Treasury disburses the funds.

"Once the toothpaste is out of the tube, that's it," he said.

--Editing by Philip Shea and Orlando Lorenzo.

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