By Adrian Cruz

Law360 (August 3, 2020, 8:39 PM EDT) -- A group of tribes have asked the D.C. Circuit to overturn a lower court's ruling that cleared Alaska Native corporations to share in $8 billion of COVID-19 relief for tribal governments, saying it was wrong in labeling the corporations as recognized tribal governments.

Last month, U.S. District Judge Amit P. Mehta blocked the U.S. Treasury Department from sending the for-profit Alaska Native corporations a share of the relief funds while the D.C. Circuit reviews his June decision ruling in favor of the corporations. That decision overturned a previous injunction that blocked the ANC's from receiving part of the relief money.

On Friday, the Confederated Tribes of the Chehalis Reservation and others told the D.C. Circuit that by ruling that the ANCs qualify as "Indian tribes" eligible for funding under the Coronavirus Aid, Relief and Economic Security, or CARES, Act, the lower court went against case law that rejected the idea that ANCs had the same status as recognized tribes.

"Before this case, no court had ever held that ANCs were tribal governments," the tribes said in their brief. "Nor had any court ever held that a corporate board of directors is equal to a recognized governing body of an Indian tribe. In rejecting the prior case law, the district court upended blackletter law about what a tribal government is and the longstanding system of federal contracting."

Judge Mehta said that because ANCs are considered tribes according to the Indian Self-Determination and Education Assistance Act, a federal law governing tribal contracting, they are also eligible for funding under the CARES Act, which takes its definition of a tribe from that law.

But the tribes said Judge Mehta misinterpreted the CARES Act by applying a portion of the ISDEAA that wasn't even included in the act's language to begin with. While the law includes ANCs in its definition of "Indian tribe" borrowed from the act, the tribes said it also includes an "eligibility clause" that limits the definition by targeting only tribes "recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians."

Because the CARES Act explicitly mentioned the ISDEAA in only one section, regarding the definition of what is an "Indian tribe," the tribes argued that Congress explicitly worded it that way to apply the law to that single definition and nothing more.

"The district court reached a conclusion no other court has reached because it took a route no other court has taken," the tribes said in their brief. "It incorporated the term 'tribal organization' from the ISDEAA into the CARES Act even though Congress specifically chose not to include it, and thus interpreted a statute written by the court instead of the one written by Congress."

In 1990, the Ninth Circuit ruled in Seldovia Native Association v. Lujan , which established the difference between recognized tribes and Alaskan Native corporations, that ANCs aren't considered tribes according to the Indian Reorganization Act. The tribes said there were many other previous examples of courts ruling against the idea of ANCs being considered the same as federally recognized tribes.

The lower court had argued that those previous cases didn't apply because they had nothing to do with the ISDEAA, but the tribes said the questions weren't about the tribal definition under the ISDEAA but rather what the definition is under the CARES Act.

The tribes also said that the ANCs are open about the fact they aren't tribal governments. ANCs who have intervened in this action have said that only federally recognized tribes are eligible for government benefits such as the CARES Act aid, the brief said.

Six tribes filed the original complaint 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 $2 trillion CARES Act.

Oral argument is set for Sept. 11. If the circuit court doesn't decide the case by Sept. 15, the stay order may be extended, the judge has said. But a motion seeking an extension from the lower court will have to tackle the question of whether the funding would expire by the end of fiscal year 2020 on Sept. 30, as the CARES Act requires tribal funding to be paid out by that date, he said.

Representatives for both sides did not immediately respond to requests for comment Monday.

The Confederated Tribes of the Chehalis Reservation and other 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 Quinault Indian Nation is represented by Lori Brunner of the Quinault Office of the Attorney General. The San Carlos Apache Tribe is represented by Alexander B. Ritchie. The Elk Valley Rancheria, California, is represented by Bradley G. Bledsoe Downes. The Pueblo of Picuris is represented by Eric Dahlstrom of Rothstein Donatelli LLP.

The Cheyenne River Sioux Tribe is represented by Nicole E. Ducheneaux of Big Fire Law & Policy Group LLP. The Rosebud Sioux Tribe is represented by Natalie A. Landreth and Wesley James Furlong 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 Rollie Wilson of Patterson Earnhart Real Bird & Wilson LLP.

The federal government is represented by Adam C. Jed, Michael S. Raab and Daniel Tenny of the U.S. Department of Justice's Civil Division.

The intervening ANCs are represented by Ragan Naresh, Paul D. Clement, Erin E. Murphy and Matthew D. Rowen of Kirkland & Ellis LLP. 

The case is Confederated Tribes of the Chehalis Reservation et al. v. Steven Mnuchin et al., case number 20-5204, in the U.S. Court of Appeals for the District of Columbia Circuit.

--Additional reporting by Andrew Westney. Editing by Brian Baresch.

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