By Andrew Westney

Law360 (August 21, 2020, 2:04 PM EDT) -- Alaska's federal lawmakers have urged the D.C. Circuit to affirm a lower court ruling that Alaska Native corporations are eligible for a share in $8 billion in COVID-19 relief, saying Congress deliberately included the ANCs in the CARES Act's definition of "Indian tribes."

Sens. Lisa Murkowski and Dan Sullivan and Rep. Don Young, all Republicans, urged the circuit court in an amicus brief Thursday to reject a bid by the Confederated Tribes of the Chehalis Reservation and other federally recognized tribes to overturn a D.C. district judge's June 29 decision that the ANCs are eligible for funding under the Coronavirus Aid, Relief and Economic Security Act — money that has been held up in litigation since the law was enacted in March.

While the tribes, which are federally recognized under the List Act, claim the companies don't qualify as "Indian tribes" with "tribal governments" based on key CARES Act language borrowed from the Indian Self-Determination and Education Assistance Act, the Alaska lawmakers said they chose that language specifically because it would allow ANCs to share in the funding.

"We note that the various appellants disagree and have disagreed with each other over whether or not the ISDEAA definition includes ANCs," the legislators said. "Let us now settle that disagreement. It does. Congress has used it just for that purpose in many instances for decades, not just the case at hand."

The law's "overarching goal" with the funds was "to provide indigenous peoples relief funds," and "to leave Alaska Native peoples out in the cold because of their association or stock in Alaska Native corporations, which Congress created, while solely providing for Alaska Native peoples that are members of a List Act tribe is nonsensical, and was clearly not Congress's intent."

Six tribes filed the original complaint in D.C. district court in April, arguing that the 12 for-profit Alaska Native regional corporations and 177 Alaska Native village corporations, which taken together have billions of dollars in revenue and are among the largest private landowners in Alaska, were not intended to receive any of the $8 billion "tribal stabilization fund" included in the $2 trillion CARES Act.

With his June 29 decision, U.S. District Judge Amit P. Mehta lifted an injunction he put in place when he thought the federally recognized tribes were likely to win their bid to block funding to the corporations.

Judge Mehta said that whether ANCs qualify as "Indian tribes" for the CARES Act hinges on an "eligibility clause" taken from the ISDEAA, a federal law governing tribal contracting, 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."

Congress in the CARES Act "could not have intended the eligibility clause to apply [to] ANCs," the judge said, since "none had done so since ISDEAA's inception" and Congress therefore "must have known that it had selected a definition of 'Indian tribe' that expressly encompasses ANCs, notwithstanding their falling outside the definition's eligibility clause."

Payments to ANCs are on hold while the plaintiff tribes pursue their expedited appeal with the D.C. Circuit, with oral arguments scheduled for Sept. 11.

Treasury Secretary Steven Mnuchin, whose department is in charge of distributing the relief funds, told the D.C. Circuit on Tuesday that Congress clearly meant to include ANCs when it passed the CARES Act.

In a separate brief Tuesday, several ANCs and related groups said the CARES Act was tailored to help address the health needs of Alaska Natives, many of whom don't belong to a federally recognized tribe, and that ANCs were included to help fulfill that purpose.

In their amicus brief Thursday, the Alaska lawmakers said "there is no universal definition of Indian tribe or tribal government that applies to all situations," so Congress could have used definitions that exclude ANCs in the CARES Act but chose not to, and the eligibility clause wasn't meant to cut out the ANCs.

"We did not include ANCs in the definition of Indian tribe only to exclude ANCs later because they are not sovereign and do not have sovereign governing bodies," they said.

The ANCs' '"governing bodies" are their boards of directors as established by the Alaska Native Claims Settlement Act, which gave them "the highest form of recognition," the lawmakers said.

In a separate amicus brief Thursday, the Alaska Federation of Natives, whose membership includes the majority of both the federally recognized sovereign tribes in Alaska and the ANCs, said including the companies in COVID-19 funding means Treasury "is not forced to inadvertently shortchange Alaska in distributions on account of the circumstance that so much of the Alaskan tribal infrastructure (and thus expenditures) is in ANC hands."

AFN also said that many federal statutes covering ANCs use the same or similar language to the ISDEAA language at issue, including the Native American Housing Assistance and Self-Determination Act, the Community Development Banking and Financial Institutions Act and the Indian Tribal Energy Development Act.

"By contrast, legislation that excludes ANCs from program eligibility generally involves programs clearly tied to the sovereign powers and authorities of tribes to manage tribal membership and tribal self-governance," AFN said.

And in another amicus brief Thursday, regional ANC Cook Inlet Region Inc. said the companies do meet the CARES Act's "eligibility clause," pointing to an ISDEAA compact with the federal government reached by a CIRI health services nonprofit.

The Alaska lawmakers are represented by Christine V. Williams of Outlook Law LLC.

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

Cook Inlet Region Inc. is represented by Allon Kedem, Ethan G. Shenkman and Janine M. Lopez of Arnold & Porter.

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 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 cases are the Confederated Tribes of the Chehalis Reservation et al. v. Steven Mnuchin et al., case number 20-5204, Cheyenne River Sioux Tribe et al. v. Mnuchin et al., case number 20-5205, and Ute Tribe of the Uintah and Ouray Reservation v. Mnuchin et al., case number 20-5209, in the U.S. Court of Appeals for the District of Columbia Circuit.

--Additional reporting by Adrian Cruz. Editing by Orlando Lorenzo.

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