Tribes Say Alaska Natives OK If ANCs Denied COVID Funds

By Andrew Westney
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Law360 (April 21, 2021, 9:11 PM EDT) -- Sixteen Native American tribes have told the U.S. Supreme Court that preserving a D.C. Circuit decision blocking Alaska Native corporations from receiving certain COVID-19 relief funding would not leave Alaska Natives short of health care and other services, after some justices showed concern on that score during oral arguments this week.

The federally recognized tribes, including the Confederated Tribes of the Chehalis Reservation, the Navajo Nation and several Alaska tribes, told the high court in a letter Tuesday that there would be "no gap in services" for Alaska Natives if the justices upheld the D.C. Circuit's September decision that ANCs don't qualify as "Indian tribes" for a share of $8 billion for tribal governments under the Coronavirus Aid, Relief and Economic Security Act.

During oral arguments Monday on petitions by the Treasury Department and Alaska Native corporations, known as ANCs, challenging the ruling, the high court weighed the use of a definition of "Indian tribe" in the CARES Act that was borrowed from the Indian Self-Determination and Education Assistance Act, a federal contracting law.

Several justices worried that ruling against the ANCs in the current case could affect other laws that incorporate the same language from the ISDEAA, and some questioned whether such a decision would leave many Alaska Natives without health care or other programs.

The tribes that filed their letter Tuesday are 16 of the 17 tribes involved in the litigation, but they were represented during oral arguments by counsel for the remaining tribe, the Ute Indian Tribe.

The 16 tribes said in their letter that "no gap in services in Alaska would arise" if the D.C. Circuit decision is affirmed, because "the vast majority" of services connected with the ISDEAA are provided to Alaska Natives — whether or not they are enrolled in federally recognized tribes or are ANC shareholders — by the federally recognized tribes in the state, along with nonprofit intertribal consortia.

Treasury Secretary Janet Yellen, whose department is in charge of distributing the CARES Act funds, and several Alaska Native corporations and other groups are challenging the D.C. Circuit's decision in favor of several sets 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.

During the oral arguments, counsel for the ANCs, Paul D. Clement of Kirkland & Ellis LLP, told the justices that if the key language the CARES Act borrowed from the ISDA is found to exclude the Alaska Native corporations from funding, that could affect a slew of other laws using similar language.

And if the state-chartered, for-profit ANCs are "cut out of programs they participated in for decades, there are going to be tens of thousands of Alaska Natives who don't get benefits that Congress plainly intended that they would receive, not just in the abstract, but through ANCs," Clement said.

Justice Brett Kavanaugh seemed receptive to concerns about the impact of the D.C. Circuit decision on Alaska Natives, pointing to arguments by Alaska's federal lawmakers and other amici for the corporations and the federal government that upholding the decision could be "destabilizing" and "staggering" not just for "this program but also many other programs."

And Justice Amy Coney Barrett asked the Ute Tribe's counsel, Jeffrey Rasmussen of Patterson Earnhart Real Bird & Wilson, why Alaska Natives as individuals might not have the same claim to benefits as Native Americans in the Lower 48 states, suggesting that they were promised those same rights by the Alaska Native Claims Settlement Act, the law that created the corporations.

In their letter to the court Monday, counsel for the Confederated Tribes of the Chehalis Reservation and 15 other tribes said that only one of the regional ANCs, Cook Inlet Region Inc., "is indirectly involved in the provision of health-care services to Alaska Natives in Anchorage," and "does so pursuant to distinct statutory authorization" from ISDA.

And affirming the D.C. Circuit decision would have no impact on other COVID relief for health care, including some $1 billion for tribal and urban Indian organizations available through the CARES Act and $6 billion available in the American Rescue Plan Act, according to the letter.

The tribes pointed to their earlier brief in the case that also contested the ANCs' "vastly overstated" concerns that the D.C. Circuit ruling could disrupt services for Alaska Natives.

"Congress plainly does not understand ANCs to play the role they claim here. In the recently enacted [American Rescue Plan Act], Congress made emphatically clear that tribal government funding should go to federally recognized tribes alone," the tribes said in their brief.

And if ANCs are ruled to be on a par with federally reorganized tribes under laws using the key ISDA language, that "would unquestionably vest ANCs with new and untold tribal powers, touching all aspects of federal Indian law and policy and transforming the balance of governmental authority in Alaska," the tribes said in their brief.

The ANCSA Regional Association and the Alaska Native Village Corporation Association, part of the ANC group of petitioners, said in a statement Monday that "for decades now, Alaska Native people have relied on ANCs to provide access to education, health, housing, and economic support," and "this misguided case puts these critical services at risk."

"If ANCs are no longer eligible to provide these services, there is no other organization or entity that can fill this need," the groups said. "We hold strong our belief that Alaska Native people should not be punished for this unique system that Congress established for us 50 years ago."

Cook Inlet Region Inc. said in a March amicus brief that it had long been understood to qualify for contracting under the ISDEAA, and that a 1997 federal law did not confer that status but only "reconfirmed Congress's understanding that CIRI — and ANCs more generally — are Indian tribes for purposes of ISDEAA."

The Ute Tribe said in a statement Monday after the oral arguments that through its counsel, the tribe had raised the central issue of whether ANCs have "recognized governing bodies" to qualify for the CARES Act funding, which Justice Sonia Sotomayor had told Rasmussen was "your strongest argument."

The Supreme Court on Friday denied the Ute Tribe's bid to have the oral argument time divided, and named Rasmussen to represent all of the tribes at oral arguments. In its statement Monday, the Ute Tribe said that "media attempts to portray the Supreme Court's decision as the result of 'infighting' are absolutely false."

That statement apparently referred to an story on Monday that "Indian Country almost lost out on the chance to present their side [at oral arguments] due to infighting among attorneys involved in the case," as attorneys for the Ute Tribe and counsel for the other tribes had disagreed over whether to divide time during oral arguments, leading to the U.S. Supreme Court naming Rasmussen to represent all the tribes in the arguments.

The Ute Tribe said in its statement that counsel for the other tribes had initially challenged the request, and that the Ute Tribe was "shocked to learn that some tribes would oppose the ability of another sovereign tribal government to present its own arguments before the Court."

The Ute Tribe also said that the tribe and its attorneys "worked cooperatively with the other tribes at every level of the case and in the days leading up to the Supreme Court argument," and that Rasmussen's arguments "strongly represented the interests of all tribal governments against the distribution of CARES Act funds to ANCs."

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 Bruner 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, assistant attorney general Paul Spruhan and Jason Searle.

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 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 Diamond Naga Siu. Editing by Peter Rozovsky.

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