By Diamond Naga Siu

Law360 (April 2, 2021, 9:57 PM EDT) -- Five tribes, six states and one congressman urged the Supreme Court to uphold the D.C. Circuit's ruling that Alaska Native Corporations aren't tribal governments and shouldn't receive tribe-designated CARES Act funding, going against Treasury Secretary Janet Yellen's interpretation.

The government and multiple ANCs are asking the U.S. Supreme Court to determine whether ANCs are considered tribes, contesting an appellate court's interpretation of the 1975 Indian Self-Determination and Education Assistance Act. The classification impacts whether they get part of the $8 billion Coronavirus Aid, Relief, and Economic Security Act funding allocated for tribes.

The five states — Utah, Oklahoma, Louisiana, Minnesota, Montana and South Dakota — argued in their joint amicus brief Wednesday that counting ANCs would essentially double Alaska Native populations since citizens of federally recognized tribes, who also benefit from ANCs, were already counted for the population-based CARES Act distribution.

"The Secretary's atextual interpretation that ANCs are tribal governments is unworkable," the states wrote in their brief about Yellen, saying corporations cannot have populations.

"But even if a corporation had a 'population' based on its shareholders, the patchwork nature of ANC ownership and jurisdictions where ANC shareholders reside inevitably leads to double counting portions of the population of Alaska (and other states) and unfairly directing funds based on those counts to ANCs at the expense of federally recognized tribes," they added.

The states' brief was one of several filed Wednesday bashing the ANCs' attempt to get tribal government funding. Rep. Raúl Manuel Grijalva, D-Ariz., five tribes, the National Indian Gaming Association, the National Congress of American Indians, professors and historians also filed amicus briefs.

The five tribes that filed together Wednesday are Bear River Band of the Rohnerville Rancheria, Cachil DeHe Band of Wintun Indians of the Colusa Indian Community, Cahuilla Band of Indians, Confederated Salish and Kootenai Tribes of the Flathead Reservation, and Morongo Band of Mission Indians.

The fight began when six tribes — three from Alaska, two from Washington and one from Maine — sued then-Treasury Secretary Steven Mnuchin in April 2020 for counting ANCs as tribal governments for CARES Act funding distribution, saying it could cost federally recognized tribes billions of dollars.

They argued that the 12 Alaska Native regional and 225 Alaska Native village corporations, which have billions of dollars in revenue and are among the largest private landowners in Alaska, should not get the allocated "tribe stabilization" funds.

The Alaska federal judge ruled in June that the for-profit ANCs should get funding under the Act, and the tribes then appealed to the D.C. Circuit in July and won in September.

A unanimous three-judge panel ruled that ANCs did not qualify, since no such entity has been federally "recognized" as a tribe before and the companies do not have a formal government-to-government tribal relationship.

The ANCs, backed by the government and Alaska lawmakers, lodged a petition with the Supreme Court in October, which was granted in January.

Counsel for all parties did not respond to requests for comment on Friday.

The amici states are represented by Sean D. Reyes, Melissa Holyoak and Lance Sorenson of the Utah Attorney General's Office, Treg R. Taylor, Laura Wolff and Mary Ann Lundquist of the Alaska Attorney General's Office and Mike Hunter and Mithun Mansinghani of the Oklahoma Attorney General's Office.

The amici tribes are represented by Margaret C. Rosenfeld, George Forman and Jay B. Shapiro of Forman & Associates.

NCAI and NIGA are represented by Derrick Beetso and Esther Labrado of NCAI; Seth P. Waxman, Paul R.Q. Wolfson and Joseph M. Meyer of Wilmer Cutler Pickering Hale & Dorr LLP; and Kaighn Smith Jr., Michael-Corey F. Hinton, Erick J. Giles, Amy K. Olfene and Sara P. Cressey of Drummond Woodsum.

The amici professors and historians are represented by Colette Routel of the Hamline University School of Law.

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

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 Andrew Westney. Editing by Ellen Johnson.

Update: The story has been updated with additional counsel information.

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