Tribes Tell Justices Alaska Native Cos. Can't Tap Virus Funds

By Andrew Westney
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Law360 (December 18, 2020, 10:16 PM EST) -- Three groups of Native American tribes have urged the U.S. Supreme Court to reject challenges to a D.C. Circuit decision that Alaska Native corporations can't share in $8 billion in COVID-19 relief, saying the case doesn't hinge on language the CARES Act borrows from a federal contracting law.

Treasury Secretary Steven Mnuchin and several ANCs and groups have petitioned the high court to overturn a D.C. Circuit panel's September ruling that the ANCs aren't "Indian tribes" under the Coronavirus Aid, Relief, and Economic Security Act, arguing that the panel misread key language imported from the 1975 Indian Self-Determination and Education Assistance Act to find that the ANCs don't qualify for tribal government funding.

The Ute Indian Tribe of the Uintah and Ouray Reservation said in a brief opposing the petitions Wednesday that the justices "should not take the bait" that the "petitioners have set out" in arguing that the case turns on whether ANCs qualify as Indian tribes under the ISDEAA, which governs tribal contracting.

"Regardless of whether ANCs are Indian tribes under the ISDEAA, they are simply not eligible for relief under Title V of the CARES Act," the Ute tribe said. "ANCs are eligible for relief under other sections of the CARES Act, and they have received substantial emergency relief under those sections. Their attempt to also obtain relief that Congress provided for governments must be based upon the CARES Act, not the ISDEAA."

And the Confederated Tribes of the Chehalis Reservation and other tribes said in their own brief Wednesday that there isn't any circuit court conflict to resolve, as "no other case has considered the permissible universe of tribal governments that may receive Title V funding, and given the [CARES] Act's limited temporal and substantive scope, no other case ever will."

"Further consideration of this case will not resolve a circuit conflict, or clarify unsettled law, or fix an error of law," according to the brief. "Instead, it will only serve to delay the disbursement of emergency funds at the height of a pandemic that disproportionately affects Native Americans."

Six tribes filed the original complaint in D.C. federal court in April, arguing that the 12 for-profit Alaska Native regional corporations and 177 Alaska Native village corporations were not intended to receive any of the $8 billion "tribal stabilization fund" included in the $2 trillion CARES Act.

U.S. District Judge Amit P. Mehta in June lifted an injunction on ANCs receiving CARES Act funding that he had put in place when he thought the federally recognized tribes were likely to win their suit.

In its Sept. 25 opinion, a unanimous D.C. Circuit panel reversed Judge Mehta's holding that an "eligibility clause" taken from the 1975 ISDEAA — which targets tribes "recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians" — was not intended to apply to ANCs, and that they otherwise met the CARES Act's requirements to qualify for funding.

The appellate panel said that "recognition" is a term of art in Native American law indicating a formal, government-to-government relationship with a tribe.

In an Oct. 21 petition, the Alaska Native Village Corporation Association Inc., the Association of ANCSA Regional Corporations Presidents/CEOs and several individual ANCs told the Supreme Court that the panel's decision "upends the long-settled legal landscape and shatters the basic infrastructure of Native life in Alaska."

In another petition days later, Mnuchin said the D.C. Circuit's reading of the language borrowed from the ISDEAA flew in the face of federal agencies' decadeslong understanding that the definition originating in the 1975 law included the companies.

The state of Alaska and its federal lawmakers in separate briefs have backed the petitions.

The Ute Indian Tribe said in its brief Wednesday that the case "is not a vehicle for resolving whether ANCs are Indian tribes under the ISDEAA," but "would only be a vehicle for resolving a run of the mill application of settled canons of statutory construction to a single, unique federal statute, that will not apply to any other case ever."

The ANCs' "unstated premise is that if they are deemed to be Indian tribes under the ISDEAA, then they are the recognized governing bodies of Indian tribes under the CARES Act," but the D.C. Circuit "correctly held [that] they are not recognized governing bodies of Indian tribes, because 'recognized' references the political relationship between a tribe and the United States — a political relationship which ANCs simply do not have," the Ute tribe said.

The Cheyenne River Sioux Tribe, Rosebud Sioux Tribe, Navajo Nation and others said in their own brief Wednesday that the D.C. Circuit's decision was "in line with longstanding case law" and the ANCs "have never — neither in law, nor in fact — functioned in a manner similar to tribal governments, nor have they been recognized as equivalent to tribal governments by the United States."

And it would be "premature for this court to address what is, at best, a nascent split" between the D.C. Circuit and the Ninth Circuit over eligibility for federal programs using the ISDEAA language, according to the brief.

Counsel for the Confederated Tribes of the Chehalis Reservation and other tribes declined to comment Friday. Representatives for the other parties were not immediately available for comment Friday.

The federal government is represented by Jeffrey B. Wall, Edwin S. Kneedler, Sopan Joshi, Matthew Guarnieri, Michael S. Raab, Daniel Tenny and Adam C. Jed of the U.S. Department of Justice.

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

The Confederated Tribes of the Chehalis Reservation and other tribes in the lead case are represented by Riyaz Kanji, Cory J. Albright, Katie E. Jones and Lynsey R. Gaudioso of Kanji & Katzen PLLC, Kannon K. Shanmugam of Paul Weiss Rifkind Wharton & Garrison LLP, 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, April E. Olson, Richard W. Hughes, Donna M. Connolly and Reed C. Bienvenu of Rothstein Donatelli LLP. The Navajo Nation is represented by attorney general Doreen McPaul and assistant attorney general Paul Spruhan.

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, Wesley James Furlong, Erin Dougherty Lynch, Matthew N. Newman and Megan R. Condon of the Native American Rights Fund.

The Ute Indian Tribe of the Uintah and Ouray Reservation is represented by Jeffrey S. Rasmussen, Frances C. Bassett and Jeremy J. Patterson of Patterson Earnhart Real Bird & Wilson LLP.

The Alaska lawmakers are represented by Christine V. Williams of Outlook Law LLC and Vanessa R. Norman of Davis Wright Tremaine LLP.

Alaska is represented by Clyde Sniffen Jr., General Laura Wolff and Mary Ann Lundquist of the Alaska Attorney General's Office.

The cases are Steven T. Mnuchin v. Confederated Tribes of the Chehalis Reservation et al., case number 20-543, and Alaska Native Village Corporation Association Inc. et al. v. Confederated Tribes of the Chehalis Reservation et al., case number 20-544, in the Supreme Court of the United States.

--Additional reporting by Adrian Cruz. Editing by Bruce Goldman.

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