Alaska Native Corps. Make COVID-19 Relief Case To Justices

By Emma Whitford
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Law360 (February 23, 2021, 6:54 PM EST) -- Alaska Native corporations are equivalent to tribes under the Indian Self-Determination and Education Assistance Act and are due a cut of March 2020 pandemic relief funds set aside for tribes, a group of ANCs has told the U.S. Supreme Court.

The Alaska Native Village Corporation Association and several other ANCs and groups filed their brief Monday after the Supreme Court in January granted petitions from them and former Treasury Secretary Steven Mnuchin in the months-long dispute.  

The ANCs, which serve Alaska Native communities, contend that the D.C. Circuit wrongly ruled in favor of the Confederated Tribes of the Chehalis Reservation and other tribes in September, finding ANCs are not "Indian tribes" under the Coronavirus Aid, Relief and Economic Security, or CARES, Act, which set aside $8 billion in COVID-19 relief for tribal governments.

"This case begins and ends with the statutory text," the ANCs wrote Monday, adding that "consistent with Congress' express inclusion of ANCs in [the ISDEAA] definition, the federal government has treated ANCs as ... 'Indian tribes' since ISDEAA's inception."

The 1975 law governs federal contracts that provide funding for tribes to administer their own programs in a wide range of areas including health care and education. 

Also on Monday, newly appointed Treasury Secretary Janet Yellen submitted a brief on behalf of the federal government, arguing as her predecessor did that the $8 billion CARES Act pot created last March was meant to serve ANCs.

The government zeroed in on the appellate panel's finding that an eligibility clause in the CARES Act targeting "recognized" tribes, drawing on language from the ISDEAA, refers to tribes that can enter formal government-to-government relationships.

This interpretation, which excludes ANCs, doesn't hold up because it is fundamentally at odds with the ISDEAA, Treasury claimed.

"ANCs lack any governmental authority and are ineligible to be federally recognized as sovereign Indian tribes," the government wrote Monday. "Congress nonetheless chose to treat them as Indian tribes for limited statutory purposes under [ISDEAA] — and now the CARES Act."

Six tribes filed the original complaint in D.C. federal court in April, arguing 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.

Counsel for the ANCs and lead tribes did not immediately reply to requests for comment on Tuesday, nor did a representative for Treasury.

The Treasury Department is represented by Acting Solicitor General Elizabeth B. Prelogar, Acting Assistant Attorney General Brian M. Boynton, Deputy Solicitor General Edwin S. Kneedler, Assistant to the Solicitor General Mathew Guarnieri, and 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 co-plaintiff tribes 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 cases are Janet L. Yellen 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 Andrew Westney. Editing by Philip Shea.

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