By Andrew Westney

Law360 (June 5, 2020, 8:09 PM EDT) -- The National Congress of American Indians and other groups have told a D.C. federal judge that Alaska Native corporations are not tribal governments entitled to share a pot of COVID-19 relief funds, while the Alaska Federation of Natives said the companies deserve part of the money to support their work for Alaska Natives during the pandemic.

In a brief Thursday, the NCAI and 11 more national and regional tribal organizations backed a bid for a quick win by the Confederated Tribes of the Chehalis Reservation and other tribes in their suit seeking to block Alaska Native corporations, known as ANCs, from receiving direct COVID-19 relief meant for tribal governments under the CARES Act.

While the law set aside $8 billion to be split among each "recognized governing body of an Indian tribe" — based on a definition of "Indian tribe" borrowed from the Indian Self-Determination and Education Assistance Act — the NCAI said that "neither Congress nor the Executive has ever recognized ANCs as Indian tribes," and that only the 229 federally recognized Alaska Native villages "have held that unique governmental status" within the state.

The ISDEAA, a federal law governing tribal contracting, "did nothing more than identify ANCs as eligible pass-through entities, or contractors, for the provision of services and programs to Alaska Natives," according to the NCAI.

But in a brief Thursday supporting U.S. Treasury Secretary Steven Mnuchin's plan to include ANCs in the allocation of the CARES Act money, the Alaska Federation of Natives said that the companies meet the key definitions in the law, and that cutting them out of funding would hurt Alaska Natives suffering from the pandemic.

"The plaintiff tribes ask the court to direct the Treasury Department to replace a CARES Act funding distribution system they allege is over-inclusive with one that would be severely under-inclusive in Alaska, because so much of what is done in the Lower 48 states by sovereign tribes that manage their own reservation lands and economic resources is done in Alaska by ANCs," said the AFN, whose membership includes the majority of both the federally recognized tribes in Alaska and the ANCs.

Six tribes filed the original complaint in the case on April 17, saying the 12 Alaska Native regional corporations and 225 Alaska Native village corporations — which have billions of dollars in revenue and are among the largest private landowners in Alaska — were not intended to receive any of the "tribal stabilization fund" included in the relief act.

Five more tribes, including the Navajo Nation, which has been especially hard hit by COVID-19, later joined the suit.

Two more cases have been consolidated with the lead suit, including one by the Cheyenne River Sioux Tribe, Rosebud Sioux Tribe, Oglala Sioux Tribe and others, and another by the Ute Indian Tribe of the Uintah and Ouray Reservation.

The Confederated Tribes of the Chehalis Reservation, the Navajo Nation, three Alaska tribes and others asked for summary judgment on May 29 in their suit, saying U.S. District Judge Amit P. Mehta "hewed to the plain language of the statute and accepted principles of statutory construction" when he issued an April injunction preventing the Treasury Department from sending the ANCs any of the direct tribal funding included in the $2 trillion Coronavirus Aid, Relief and Economic Security Act.

Mnuchin, whose department is in charge of distributing the money, said in his own motion for summary judgment the same day that ANCs are meant to help provide Alaska Natives with health care and other services, making it "eminently sensible that they would be eligible for contracting under ISDEAA and for funding under Title V of the CARES Act," Mnuchin said.

The Treasury Department paid out $4.8 billion of the CARES Act funds to tribes based on population information starting May 5, but has said that it is reserving a portion it believes should go to the ANCs. The department also apparently intends to include ANCs in deciding how to divvy up the remaining $3.2 billion, which has yet to be distributed and will be based on employment and expenditure information submitted by tribes.

The NCAI said in its brief Thursday that Judge Mehta should grant summary judgment to the tribes "for the central reason that the ANCs are not 'recognized' by the United States as having the unique government-to-government relationship reserved for sovereign Indian tribes."

ANCs "lack the sovereign powers of a Tribal government," which "are retained and exercised only by" the 229 Alaska Native villages that are federally recognized tribal entities, the NCAI said.

The inclusion of ANCs in the ISDEAA definition of "Indian tribe" does not mean the corporations qualify under the CARES Act, as that inclusion "merely reflects uncertainty at the time about how federal services were to be provided to Alaska Natives in the aftermath of the complex and novel framework established by" the 1971 Alaska Native Claims Settlement Act, which created the ANCs, according to the brief.

Though the ANCs may provide health care and other benefits to their shareholders, "they have no duty to do so," while the governments of federally recognized tribes like the Alaska Native villages "have inherent duties to provide for their citizens," the NCAI and other groups said.

"Corporations serving or giving dividends to individual shareholders, or engaged in charitable activities, are not functioning as governments," the groups added.

The Alaska Federation of Natives said in its brief that the ANCs are part of "a complex web that spreads responsibilities for the welfare of Alaska Natives over multiple Native entities" that also includes Native Regional Consortia and federally recognized tribes, who are working together to fight the coronavirus pandemic.

"Changing these responsibilities should be the decision of Alaska Natives themselves in true self-determination and not dictated by tribes outside of Alaska or national Indian organizations," the AFN said.

The employment and population data the Treasury Department is using to calculate part of the CARES Act payments "are naturally found in Alaska much more in the ANCs," since they "rather than sovereign tribes manage the vast bulk of Alaska Native lands and economic resources," the AFN said.

Meanwhile, the population data used by Treasury to calculate 60 percent of the CARES Act payments could leave some Alaska Natives out, since many don't belong to a tribe but do receive benefits as ANC shareholders, the AFN said.

With CARES Act funding set up to go through ANCs, not letting them receive that money "would result in a severely under-inclusive distribution in Alaska that Congress is highly unlikely to have intended, particularly given the sudden, sweeping emergency nature of the pandemic and the congressional response" in the law, the group said.

The AFN also contended that comparing the CARES Act to other laws using similar terms shows that the ANCs do qualify as Indian tribes, and that the term "recognized governing body" "is simply employed to refer to whatever body is the lawful governing body of that Indian Tribe," such as the ANCs' boards of directors.

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

The tribes in the lead case 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.

The Cheyenne River Sioux Tribe is represented by Nicole E. Ducheneaux and Rose M. Weckenmann of Big Fire Law & Policy Group LLP. The Rosebud Sioux Tribe is represented by Natalie A. Landreth, Wesley James Furlong, Erin C. Dougherty Lynch, Matthew N. Newman and Megan R. Condon of the Native American Rights Fund. The Oglala Sioux Tribe is represented by Jennifer Bear Eagle of the Oglala Sioux Tribe Legal Department.

The Ute Indian Tribe of the Uintah and Ouray Reservation is represented by Frances C. Bassett, Jeffrey S. Rasmussen, Jeremy J. Patterson and Rollie Wilson of Native Law Group.

The federal government is represented by Joseph H. Hunt, Eric Womack and Jason C. Lynch of the U.S. Department of Justice's Civil Division.

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.

The Alaska Federation of Natives is represented by James H. Lister of Birch Horton Bittner & Cherot PC.

The lead 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 Emma Whitford and Kelly Zegers. Editing by Peter Rozovsky.

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