WASHINGTON — The U.S. Court of Appeals for the DC Circuit ruled this afternoon that Alaska Native Corporations are not eligible to share in $8 billion of relief funding for tribal governments under Title V of the CARES Act.  

Eighteen federally recognized tribes, including six from Alaska, sued the U.S. Department of Treasury beginning in April to stop Secretary Steven Mnuchin from disbursing a portion of the CARES funding to ANCs, which are for-profit corporations with shareholders. 

As the lawsuit wound its way through the legal system over the past six months, the government withheld distribution of more than $162 million in Title V funds that would have been provided to the ANCs. 

In today’s ruling, a three-judge panel said that ANCs don’t count as “Indian Tribes” under the CARES Act, reversing a federal district court ruling in June. In that ruling, Judge Amit Mehta of the DC District court found that under the language of the CARES Act, ANCs “are ‘Indian Tribe(s)’ and … their boards of directors are ‘Tribal governments.’”  

Mehta’s ruling hinged on Congressional use of the Indian Self-Determination and Education Assistance Act (IDSA) definition of “Indian Tribes” when it wrote the CARES Act. IDSA, which authorizes the federal government to contract with Indian Tribes to provide services to tribal members, includes ANCs in its definition of Indian Tribes.   

The appeals court on Friday instead found that ANC don’t qualify as tribes because they are not “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”  

And, the appeals court ruling notes, no ANC appears on the Secretary of Interior’s current list of recognized Indian tribes.     

“The ANCs have not satisfied the recognition clause as we construe it,” wrote U.S. Circuit Judge Gregory G. Katsas, a Trump appointee, in the decision. ANCs “do not contend that the United States has acknowledged a political relationship with them government-to-government. Nor could they, for in 1978, the Interior Department promulgated regulations making ‘corporations … formed in recent times’ ineligible for recognition.” 

In a concurring opinion, Circuit Judge Karen Henderson called the decision “an unfortunate and unintended consequence of high-stakes, time-sensitive legislative drafting. “

Henderson, appointed to the court by George H.W. Bush wrote, “It is indisputable that the services ANCs provide to Alaska Native communities—including healthcare, elder care, educational support and housing assistance—have been made only more vital due to the pandemic.”

The third judge on the panel, U.S. Circuit Judge Patricia A. Millett, is an Obama appointee.  

Attorney Riyaz A. Kanji, who represented the tribes in their suit against the federal government, expressed appreciation for the court’s ruling in the case.

“The Confederated Tribes Plaintiffs appreciate the Court’s thorough, careful exposition of the statutory and historical factors making it clear that Alaska Native Corporations are not Indian Tribes, a term restricted to sovereign Tribes enjoying a government-to-government relationship with the United States,” Kanji wrote in an email to Native News Online. 

The ANCSA Regional Association (ARA) and the Alaska Native Village Corporation Association (ANVCA) issued a statement in response to the Court of Appeals’ opinion.

“This ruling is a devastating blow to Alaska Native communities facing an alarming increase in COVID-19,” Kim Reitmeier, executive director of the ARA, said in a statement. “Both CDC and Alaska data show that Alaska Native people suffer from a disproportionate number of infections, hospitalizations and deaths. We fear this deeply flawed ruling will only make things worse by keeping critical health services and economic relief from reaching our remote communities and villages who are most at risk.”

Tribes and tribal advocates from the lower 48 praised the decision.  

“The National Congress of American Indians (NCAI) agrees with the opinion from United States Court of Appeals for the D.C. Circuit in Chehalis v. Mnuchin, and looks forward to the U.S. Department of the Treasury’s swift disbursement of the remaining funds to federally recognized tribal nations in need of additional funding, including Alaska Native villages,” said NCAI President Fawn Sharp. “Additionally, given the delayed distribution of tribal funds, NCAI calls upon Congress to extend the deadline for tribal use of Coronavirus Relief Funds until 2022.”

The president of the country's largest tribe thanked the appeals court and promised to "continue to fight" for federally recognized tribes. 

“We thank the U.S. Court of Appeals for the District of Columbia Circuit today’s ruling, which supports the Navajo Nation’s position that the $8 billion that was included in the CARES Act to help fight COVID-19, is allocated for federally-recognized tribes only and not for-profit Alaska Native Corporations that generate billions of dollars in revenue," Navajo Nation President Jonathan Nez said in a statement after Friday's ruling. "Federally-recognized tribes stood strong to oppose the actions of the Department of the Treasury in their attempt to undermine the first citizens of this country, but our voices were heard and Indigenous people prevailed. As this matter moves forward to appeal, as we anticipate, we will continue to fight for what rightfully belongs to federally-recognized tribes,” 

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