By Kelly Zegers

Law360 (May 1, 2020, 4:26 PM EDT) -- An Alaska Native regional corporation has moved to intervene in tribes' consolidated fight to stop any amount of the $8 billion in direct tribal funding for COVID-19 pandemic relief from going to such companies, after a D.C. federal judge preliminarily prevented U.S. Treasury Secretary Steven Mnuchin from sending them a share.

Ahtna Inc. stressed on Thursday that if the Confederated Tribes of the Chehalis Reservation and other federally recognized tribes ultimately win a permanent injunction, it won't be able to provide the services and economic response needed to tackle hardships that the Alaska Natives it represents are facing during the pandemic. The direct tribal funding is part of the $2 trillion Coronavirus Aid, Relief and Economic Security Act signed into law in late March.

"Although Ahtna is a corporation, it is impossible to unravel the ties between Ahtna and its tribes," Ken Johns, chairman of the board of directors for Ahtna, said in a declaration supporting intervention. "We are the same people. The same blood runs through our veins."

The company represents the interests of its more than 2,000 Alaska Native shareholders and owns lands and resources in eastern Alaska, according to its motion to intervene.

In granting the temporary restraining order and preliminary injunction on April 27, U.S. District Judge Amit S. Mehta said that "presently, no ANC satisfies the definition of 'tribal government' under the CARES Act and therefore no ANC is eligible for any share of the $8 billion allocated by Congress for tribal governments."

The ANCs can't be considered "the recognized governing body of an Indian Tribe," because "'recognition' as used in Indian law statutes is a legal term of art, and ... no ANC board of directors" meets that definition, the judge said. Judge Mehta stopped short of ordering the U.S. Department of the Treasury to distribute the whole $8 billion to the 574 federally recognized tribes.

Judge Mehta agreed with the tribes that ANCs do not meet the definition of "Indian tribe" under the Indian Self-Determination and Education Assistance Act. The law includes "any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians."

Ahtna argues that Congress intended ANCs to be able to tap into the funds. 

Ahnta said that it fits that definition of "Indian Tribe," because it is eligible to receive and holds a certain contract under the ISDEAA, and Section 601 of the CARES Act provides for the distribution of funds under that meaning of "Indian Tribe." And it's not unusual for Congress to use that definition when it intends for ANCs to qualify for federal benefits, Ahtna said.

The company said it didn't originally seek to intervene, given the Treasury Department's failure to provide details about its intentions for allocation of the relief funds, and had instead filed an amicus brief urging the court to allow the federal government to intervene. But it's already suffered injury from the temporary funding block, it said.

"Ahtna has already provided economic relief and incurred costs to address public health and Ahtna intends to do much more with the funds provided by the federal government to help Alaska Natives recover from this pandemic," it said.

A permanent injunction would mean that Ahtna's Alaska Native shareholders who aren't members of a federally recognized tribe will lose out on benefits established under the CARES Act and hinder its overall eligibility for dozens of federal programs and benefits.

Three Alaska tribes and three tribes from the lower 48 states filed the original complaint in the case on April 17, saying the 12 Alaska Native regional corporations and 225 Alaska Native village corporations, which together have billions of dollars in revenue and are some of the largest private landowners in Alaska, weren't intended to have any of the "tribal stabilization fund" included in the relief act.

Five more tribes — including the Navajo Nation, which has been especially hard hit by COVID-19 — later joined the suit, and two other suits were filed by the Cheyenne River Sioux Tribe, Rosebud Sioux Tribe and Oglala Sioux Tribe and by the Ute Indian Tribe of the Uintah and Ouray Reservation.

Counsel for Ahtna Inc. and for the tribes in the lead case declined to comment. Representatives for the tribes in related actions did not immediately respond to requests for comment. 

The tribes in the lead case are represented by Riyaz Kanji and Cory J. Albright of Kanji & Katzen PLLC, Harold Chesnin of the Confederated Tribes of the Chehalis Reservation and Lisa Koop Gunn of the Tulalip Tribes.

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 C. Dougherty Lynch, Matthew N. Newman and Megan R. Condon of the Native American Rights Fund.

The Oglala Sioux Tribe is represented by Jennifer Bear Eagle of the Oglala Sioux Tribe Legal Department.

The Ute Indian Tribe of the Uintah and Ouray Reservation is represented by Frances C. Bassett, Jeffrey S. Rasmussen and Rollie Wilson of Fredericks Peebles & Patterson LLP.

The federal government is represented by Joseph H. Hunt, Eric Womack and Jason C. Lynch of the U.S. Department of Justice's Civil Division.

Ahtna Inc. is represented by Michael J. O'Leary and Jonathan Katchen of Holland & Hart LLP.

The lead case is Confederated Tribes of the Chehalis Reservation v. Mnuchin, case number 1:20-cv-01002, in the U.S. District Court for the District of Columbia.

--Additional reporting by Andrew Westney. Editing by Nicole Bleier.

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