By Andrew Westney

Law360 (August 6, 2020, 10:33 PM EDT) -- The National Congress of American Indians and other tribal advocacy groups have urged the D.C. Circuit to rule that Alaska Native corporations are ineligible for part of $8 billion in COVID-19 relief under the CARES Act, saying the companies don't qualify as "tribal governments" under the law.

The Confederated Tribes of the Chehalis Reservation and other tribes last week told the circuit court that by ruling that the ANCs qualify as "Indian tribes" eligible for funding under the Coronavirus Aid, Relief and Economic Security, or CARES, Act, a D.C. federal judge went against case law that rejected the idea that ANCs have the same status as recognized tribes.

In an amicus brief Wednesday, the NCAI and nine more national and regional tribal organizations said the ANCs were "private corporations striving to cloak themselves with the mantle of tribal sovereignty, professing noble intentions," but only federally recognized tribes are tribal governments and that status "cannot, and should not, be so easily usurped."

Alaska Native villages are entitled to the CARES Act funds but ANCs are not, and the lower court's ruling "allowing [ANCs] to access CARES Act funds reserved for sovereign, federally recognized Indian tribes wreaks havoc with the fundamental tenets of federal Indian law protecting the dignity of Indian tribes as governments," the groups said.

Six tribes filed the original complaint in D.C. district court in April, arguing that the 12 Alaska Native regional corporations and 225 Alaska Native village corporations — which have billions of dollars in revenue and are among the largest private landowners in Alaska — were not intended to receive any of the $8 billion "tribal stabilization fund" included in the $2 trillion CARES Act.

U.S. District Judge Amit P. Mehta ruled June 29 that the ANCs are eligible for the funding, lifting an injunction he had put in place when he thought federally recognized tribes were likely to win their bid to block funding to the corporations.

The CARES Act relies on definitions borrowed from the Indian Self-Determination and Education Assistance Act, a federal law governing tribal contracting, and "by incorporating wholesale ISDEAA's definition of 'Indian tribes' into the CARES Act, Congress declared ANCs to be eligible for [the CARES Act's] Title V emergency relief funds," according to Judge Mehta's opinion.

The judge said that whether ANCs qualify as "Indian tribes" for the CARES Act hinges on an "eligibility clause" taken from the ISDEAA that limits the definition by targeting only tribes "recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians."

"Although a close question, the court is now convinced that, in 2020 when Congress passed the CARES Act, it could not have intended the eligibility clause to apply [to] ANCs," the judge said, noting that Treasury Secretary Steven Mnuchin and some of the plaintiff tribes agreed that ANCs could not satisfy that clause.

The judge then put that ruling on hold while the tribes pursue their expedited appeal with the D.C. Circuit.

In a July 31 brief, the Navajo Nation, Ute Tribe of the Uintah and Ouray Reservation, Cheyenne River Sioux Tribe, Rosebud Sioux Tribe and others said that before the current case, "no court had ever held that ANCs were tribal governments" or "ever held that a corporate board of directors is equal to a recognized governing body of an Indian tribe."

"In rejecting the prior case law, the district court upended blackletter law about what a tribal government is and the longstanding system of federal contracting," the tribes said.

In a separate brief the same day, another group of tribes including the Confederated Tribes of the Chehalis Reservation and several Alaska tribes said that the lower court "turned its back on the plain text" of the CARES Act.

The NCAI and other groups said in their amicus brief Wednesday that Judge Mehta's ruling that the eligibility clause did not apply to ANCs "derails what amici stand for, a commitment to the letter of the law when it comes to the protection of tribal sovereignty."

ANCs were included in the ISDEAA's definition of "Indian tribe" because of uncertainty at the time of the law's 1975 enactment about whether the companies — which had recently been created to help settle Alaska Native land claims through the 1971 Alaska Native Claims Settlement Act — might qualify under the ISDEAA's eligibility clause and be recognized by the federal government in some way.

But that issue has been resolved, and "since the mid-1990s, there has been no doubt that the 229 Alaska Native villages are the only entities in Alaska that possess the attributes of sovereignty marking the ordinary meaning of a 'tribal government,'" the NCAI said.

Alaska Native villages, unlike ANCs, exercise governmental powers akin to those of the states and local governments that also received CARES Act funding, and "absent far more clarity of Congress's intent than is present here, this court should not lightly presume that Congress would conflate the sovereignty of Alaska Native villages, and other federally recognized tribes, with the status of private corporations," according to the brief.

Oral argument is set in the case for Sept. 11.

The Treasury department declined to comment Thursday.

Representatives for the other parties did not immediately respond to requests for comment Thursday.

The Confederated Tribes of the Chehalis Reservation and other 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 Quinault Indian Nation is represented by Lori Brunner 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 of Rothstein Donatelli LLP.

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 and Wesley James Furlong of the Native American Rights Fund. 

The Ute Indian Tribe of the Uintah and Ouray Reservation is represented by Rollie Wilson of Patterson Earnhart Real Bird & Wilson LLP.

The federal government is represented by Adam C. Jed, Michael S. Raab and Daniel Tenny of the U.S. Department of Justice's Civil Division.

The intervening ANCs are represented by Ragan Naresh, Paul D. Clement, Erin E. Murphy and Matthew D. Rowen of Kirkland & Ellis LLP.

The National Congress of American Indians; Affiliated Tribes of Northwest Indians; All Pueblo Council of Governors; California Tribal Chairperson's Association; Great Plains Tribal Chairmen's Association Inc.; Midwest Alliance of Sovereign Tribes; United South and Eastern Tribes Sovereignty Protection Fund; National Indian Gaming Association; Arizona Indian Gaming Association; and California Nations Indian Gaming Association are represented by Kaighn Smith Jr., Michael Corey Francis Hinton and Erick J. Giles of Drummond Woodsum, and Derrick Beetso of the NCAI.

The cases are the Confederated Tribes of the Chehalis Reservation et al. v. Steven Mnuchin et al., case number 20-5204, Cheyenne River Sioux Tribe et al. v. Mnuchin et al., and Ute Tribe of the Uintah and Ouray Reservation v. Mnuchin et al., case numbers 20-5205 and 20-5209, in the U.S. Court of Appeals for the District of Columbia Circuit.  

--Additional reporting by Adrian Cruz. Editing by Peter Rozovsky.

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