By Andrew Westney

Law360 (March 1, 2021, 7:53 PM EST) -- An Alaska Native corporation urged the U.S. Supreme Court on Monday to overturn a D.C. Circuit decision that ANCs can't have a share of $8 billion in COVID-19 relief meant for Native American tribal governments, saying the ruling could upend health services for Alaska Natives amid the pandemic.

Cook Inlet Region Inc., one of 12 regional Alaska Native corporations created under the Alaska Native Claims Settlement Act, backed bids by the federal government and ANC groups to reverse the D.C. Circuit's September decision that ANCs aren't "Indian tribes" that qualify for relief under the Coronavirus Aid, Relief, and Economic Security Act.

Cook Inlet told the justices in its amicus brief that "the vast majority" of Alaska Natives in its region, which includes Anchorage, don't belong to federally recognized tribes and could lose access to COVID-19 vaccinations and other health services they get from ANCs.

And the D.C. Circuit's ruling "would reverberate far beyond ANCs' eligibility for CARES Act relief," because it held that the companies don't meet the definition of "Indian tribe" imported from the 1975 Indian Self-Determination and Education Assistance Act, a federal contracting law, to the CARES Act, Cook Inlet said.

"That erroneous conclusion threatens to destabilize the entire tribal health and social-services system in Alaska, which for decades has functioned on the principle that ANCs do qualify," Cook Inlet said.

The brief was one of several filed Friday and Monday in support of the ANCs, following the Supreme Court's grant of certiorari in early January to petitions from former Treasury Secretary Steven Mnuchin and several ANCs and groups.

The government and the ANCs contend that the appellate panel misread a clause taken from the 1975 ISDEAA — which adresses tribes "recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians" — as not being intended to apply to ANCs in the CARES Act.

The groups of plaintiff tribes, including the Confederated Tribes of the Chehalis Reservation, the Ute Tribe, the Cheyenne River Sioux Tribe, the Rosebud Sioux Tribe and the Navajo Nation, have argued that the D.C. Circuit rightly found Congress meant for the CARES Act funding to be limited to formally recognized, sovereign tribal governments.

The Treasury Department and the ANCs filed their first briefs following the cert grant on Feb. 22, with the Alaska Native Village Corporation Association and other ANCs and groups arguing that the D.C. Circuit wrongly ruled in favor of the Confederated Tribes and the others in September.

"This case begins and ends with the statutory text," the ANCs argued, 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."

And 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's "tribal stabilization fund" was meant to serve ANCs.

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

The state of Alaska said in an amicus brief Friday that the D.C. Circuit's ruling "is harmful not only in that it takes away CARES Act funding from ANCs — and thus from some of the most vulnerable and hardest-hit Alaskans in this pandemic — but also in that it serves as precedent to undermine current and future federal contracts with ANCs for social and health services."

Congress, in creating ANCs through ANCSA, "never intended that ANCs would be 'recognized' as separate sovereign political bodies, but it always intended that ANCs would provide Alaska Natives with health and social services," the state said.

And the state can't be expected to cover COVID-19 relief that Congress meant to provide in the CARES Act, as Alaska is not "financially or administratively capable of suddenly substituting into the position of ANCs and supplying the programs and services that ANCs have long provided," it said.

Alaska's members of Congress, Sens. Lisa Murkowski and Dan Sullivan and Rep. Don Young — all Republicans — said in their own amicus brief Friday that the CARES Act "was not intended to leave our indigenous constituents out in the cold just because they do not belong to a [Federally Recognized Indian Tribe List Act] tribe or live outside the boundaries of a tribal village."

"In the 40-plus years prior to our drafting of the relevant portion of the CARES Act, not one branch of government, read, understood, or applied the ISDEAA definition only to sovereign tribes — simply because it does not," the lawmakers said.

The Alaska Federation of Natives, whose membership includes the majority of ANCs and federally recognized tribes in Alaska, said the D.C. Circuit's decision wrongly required entities to be sovereign to qualify under the CARES Act language that originated in the ISDEAA.

"Possessing attributes of tribal sovereignty is not the only way to satisfy the recognition clause," the group said. "The D.C. Circuit erroneously disqualified ANCs from CARES funding, thereby harming Alaska Natives who exercise self-determination in a way that differs from American Indians."

And the Association of Alaska Housing Authorities, which represents ANC housing agencies, said in its brief Monday that the programs it offers Alaska Natives under the 1996 Native American Housing Assistance and Self-Determination Act could be jeopardized by the D.C. Circuit's decision.

NAHASDA employs the same recognition clause as used in the ISDEAA, which "confirms that the same phrase in ISDEAA cannot reasonably be read to exclude ANCs from eligibility under ISDEAA," the group said.

"To read ISDEAA otherwise is not only inconsistent with ISDEAA's own text, structure, and history, as petitioners argue, it simply cannot be squared with the long-accepted and critical role played by ANCs within NAHASDA," according to the brief.

Kim Reitmeier, executive director of the ANCSA Regional Association, said in a statement Monday that the group is "grateful to have such strong support from organizations and elected leaders who know Alaska's Native communities and recognize the critical role ANCs play in delivering much-needed economic opportunity, as well as healthcare, housing and other social services."

"As these briefs make clear, this is about Alaska Native people," Reitmeier said. "Our rural villages and communities are facing serious challenges in this pandemic despite Alaska's successful vaccination delivery. Setting apart and excluding ANCs from relief set out in Title V of the CARES Act would jeopardize the unique Alaska system, and leave thousands of Alaskan Natives with nowhere to turn for help."
 
Counsel for the federal government was not immediately available for comment Monday.

Representatives for the plaintiff tribes declined to comment on Monday.

Cook Inlet is represented by Allon Kedem, Ethan G. Shenkman and Sally L. Pei of Arnold Porter Kaye Scholer LLP.

Alaska is represented by Treg R. Taylor, Laura Wolff and Mary Ann Lundquist of the state's attorney general's office.

The Alaska lawmakers are represented by Christine V. Williams and Andrew P. March of Outlook Law LLC.

The Alaska Federation of Natives is represented by Jon M. DeVore, George R. Pitts and Carissa Siebeneck Anderson of Birch Horton Bittner & Cherot PC.

The AAHA is represented by Hyland Hunt and Ruthanne M. Deutsch of Deutsch Hunt PLLC.

The Treasury Department is represented by Elizabeth B. Prelogar, Brian M. Boynton, Edwin S. Kneedler, 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 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 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, before the Supreme Court of the United States.

--Additional reporting by Emma Whitford. Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.