By Andrew Westney

Law360 (April 24, 2020, 3:37 PM EDT) -- Alaska Native Corporations clashed with federally recognized tribes and tribal organizations in D.C. federal court briefs over whether the companies' role in helping Alaska Native communities weather the COVID-19 crisis entitles them to a share in $8 billion in funding.

In a pair of amicus briefs, the National Congress of American Indians and other groups and the Native American Finance Officers Association alongside several tribes backed a suit by 11 federally recognized tribes, arguing that the for-profit ANCs shouldn't receive any of the $8 billion in direct tribal funding in the $2 trillion Coronavirus Aid, Relief and Economic Security, or CARES Act.

And Alaska Native regional corporation Ahtna Inc. and two groups representing ANCs in another set of briefs urged the court to allow the Treasury Department to send the companies part of the funding, which Treasury Secretary Steven Mnuchin has said could happen on Tuesday.

The NCAI and a host of other groups said in their brief Thursday that tribes are chronically short of funding, and that letting ANCs share in the money "will deprive Indian tribes of critically needed funds for the provision of governmental services to their citizens."

The groups said that the way Treasury has gathered information from applicants for the funds would allow an Alaska Native to be counted for funding as a shareholder in a regional corporation, "one or more village corporations," and as a tribe member.

"Such methodology would result in the inequitable disbursement of relief funds to large for-profit corporations that are not recognized tribal governing bodies, and thereby shortchange the federally recognized tribal governments responsible for preparing for, and combating COVID-19 in tribal communities," the groups said. "This is a complete anathema to the federal government's relationship to Indian tribes."

Federally recognized Alaska Native tribes, rather than the ANCs, should receive funding to help Alaska Natives deal with the coronavirus, the groups said.

But Athna said in its brief Thursday that the ANCs "serve a similar role in their Native communities as other tribal governments," and the plaintiff tribes have drawn "an inaccurate caricature" of them "as simply for-profit corporations established under state law and, thus, very different from other Indian tribes."

With the CARES Act, "Congress wanted to ensure an effective response to this pandemic for Alaska Natives, and it understood that the best way to address their needs is by providing additional resources to ANCSA corporations, who play a critical role in providing services and support to their communities," Ahtna said.

The amicus briefs arrived as the tribes and Mnuchin prepared to make their case to U.S. District Judge Amit P. Mehta in a hearing Friday afternoon.

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 tribes followed that up Monday with a request to Judge Mehta for a preliminary injunction and temporary restraining order.

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 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, along with another suit filed Thursday by the Ute Tribe of the Uintah and Ouray Reservation.

The NCAI and other groups said in their amicus brief that ANCs aren't tribes or tribal governments under the CARES Act, as they don't exercise governmental powers or have a government-to-government relationship with the federal government.

"It denigrates the dignity of Indian tribes, as sovereign governing entities, to suggest that ANCs are Indian tribes or tribal governments in any manner," the NCAI said.

The $8 billion for tribes in the CARES Act will be "insufficient to meet their mounting needs" even if ANCs aren't included, which would make the situation much worse, according to the brief.

In another amicus brief backing the plaintiff tribes, the Native American Finance Officers Association, Gila River Indian Community, Penobscot Nation and Nottawaseppi Huron Band of the Potawatomi blamed Treasury for not following the CARES Act's language requiring the funding to pay for tribal government "expenditures" responding to the COVID-19 pandemic.

"Treasury's failure thus far to focus on and adhere to this statutory language is the source of most of the present controversy, because the argument has become who gets the funds in the first instance rather than the proper method for allocating such funds tailored to the ultimate statutory uses," NAFOA and the tribes said.

And ANCs "would not be such a source of controversy if the amounts of funds allocated were based on reasonable estimates of actual budgetary impacts for tribal governmental services provided to tribal members," NAFOA said.

The problem "can be remedied quickly" if Treasury were to allow tribal governments 48 hours to estimate the impact on their budgets from the pandemic from March through December, then base its distribution of funds on those figures with a minimum for each tribe, NAFOA said.

Ahtna, which has more than 2,000 Alaska Native shareholders, said that the Alaska Native Claims Settlement Act that created the corporations was "the functional equivalent of a modern-day Indian treaty" and that the ANCs serve their communities as tribal governments for the purposes of the CARES Act.

Ahtna added that "there is little risk here that ANCSA corporations would be receiving some type of 'windfall' through eligibility in the program" because there are "restrictions and controls in the [CARES] Act to ensure that the funds are only expended in direct response to the current crisis to meet demonstrated needs."

The Alaska Native Village Corporation Association and ANCSA Regional Association, both non-profits representing ANCs, said in their amicus brief Thursday that ANC corporate structures are akin to those of many tribal councils.

"Simply put, ANC boards, which are required under ANCSA to be composed of solely Alaska Native shareholders, are elected to the governing body of an Indian tribe," and thus qualify for funding under the CARES Act, according to the brief.

The law "was not written to exclude, but rather, to include," the nonprofits said, adding that the tribes filing their injunction bid "just days before critically needed funds are disbursed, thereby jeopardiz[ed] all those Native entities that Congress intended to benefit from the statute."

Representatives for the parties were not immediately available for comment Friday.

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 NCAI; Affiliated Tribes of Northwest Indians; Arizona Indian Gaming Association; California Nations Indian Gaming Association; California Tribal Chairperson's Association; Great Plains Tribal Chairmen's Association Inc.; Inter Tribal Association Of Arizona Inc.; Intertribal Council of the Five Civilized Tribes; National Indian Gaming Association; Midwest Alliance of Sovereign Tribes; All Pueblo Council of Governors; and United South And Eastern Tribes Sovereignty Protection Fund are represented by Kaighn Smith Jr., Michael Corey Francis Hinton and Erick J. Giles of Drummond Woodsum, and Derrick Beetso of the National Congress of American Indians.

Native American Finance Officers Association, Gila River Indian Community, Penobscot Nation and Nottawaseppi Huron Band of the Potawatomi are represented by Donald R. Pongrace and Merrill C. Godfrey of Akin Gump Strauss Hauer & Feld LLP.

Ahtna Inc. is represented by Michael J. O'Leary and Jonathan Katchen of Holland & Hart LLP.

Alaska Native Village Corporation Association and ANCSA Regional Association are represented by Christine V. Williams and J. Harrison Powell II of Outlook Law LLC and William K. Walker of Walker Reausaw.

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 Rebecca Flanagan.

Update: The story has been updated to clarify Ahtna's arguments.

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