The Aleut Community of St. Paul Island is a federally recognized tribe based on the St. Paul Island in the Bering Sea. Photo: Bill Briggs

8 billion questions

The chaos of an $8 billion federal disbursement that could begin as soon as Tuesday with the completion date set for April 26
Indian Country Today

The $8 billion tribal relief fund could be gone soon. More than 600 tribes, corporations, and even nonprofit organizations registered last week with the Treasury Department documenting what’s needed to at least partly mitigate the impact of the coronavirus.

And based on the leaking of sensitive information, it’s clear the pool will be far short of what’s needed, likely less than 10 percent of documented impact from the pandemic.

Yet on the Monday before a payout begins there is no clear indication from the Trump administration about the process. Will the funding awards be public? What formula will be used, employment, population, or land base, or all three? And will the formula be ever made a public document?

These questions are punctuated by the chaos of an $8 billion disbursement that could begin as soon as Tuesday with a completion date of April 26.

Tribes are concerned because the government's registration process seems structured toward land, not population, or even coronavirus-related costs. That would favor the 12 Alaska Native regional corporations and 200-plus village corporations that own some 44 million acres of fee patent land. The total of all tribal trust land is 56 million acres owned by more than 500 tribes.

Another issue raised by tribes is about protecting employment. A study by Alaska Business found that only 27 percent of Alaska Native corporate employees were based in the state, while the rest worked “worldwide.” Nearly all tribal employees work in their communities.

On Friday several tribes -- including those in Alaska -- sued the Treasury Department over the issue of including Alaska Native corporations in the fund.

The Confederated Tribes of the Chehalis Reservation and the Tulalip Tribes in Washington state, the Houlton Band of Maliseet Indians in Maine, and the Akiak Native Community, Asa'carsarmiut Tribe and Aleut Community of St. Paul Island in Alaska filed the lawsuit in U.S. District Court in Washington, D.C. The U.S. Treasury Department, named as the defendant, did not immediately return an email seeking comment.

The lawsuit says “COVID-19 is causing devastating harm in Indian country” and that Congress recognized the unique hardships on tribal governments. “These governments have needed to engage in robust public health activities and to provide enhanced health care and other public services in response to the pandemic.”

One of the plaintiffs is the Akiak Native Community. The tribe has 535 enrolled members and is only accessible by air. On March 26, the Akiak Council declared a public health emergency and shut down its business and recreational activities and closed access to the community. The nearest hospital is Bethel, 30 miles away by air. There is a community clinic but Akiak has “gone for days at a time without any health care services due to the unavailability of the one trained health aide.”

The Interior Department maintains that Alaska Native corporations are eligible for the funding, pointing to a definition in the Indian Self Determination Act that includes the corporations as Indian tribes.

Then this debate goes back before that law too.

In 1971 when the Alaska Native Claims Settlement Act became law many considered it a "termination bill" ending the idea of tribes and reservations in Alaska. Corporations were instead expected to manage 44 million acres of land and serve cultural and community interests while leaving governance issues to the state of Alaska.

Yet corporations were considered an imperfect vehicle.

As Rosita Worl wrote in Cultural Survival: “During the late 1980s … it was popular to say that corporations were alien institutions. The framers of ANCSA and public policy observers, on the other hand, described Native corporations as social engineers and mechanisms for economic assimilation into the larger society. The truth perhaps lies between these two positions, as Native corporations have become increasingly prominent in many Native communities and have been viewed by many as a measure to achieve self determination.” Worl, Tlingit, is a scholar and president of the Sealaska Heritage Institute in Juneau.

But Alaska’s “sovereignty” movement was growing and more Alaska Native villages were organizing as tribes under the 1975 Indian Self-Determination Act (the very law cited in the CARES Act as a reason to award corporations funding). One idea was to return lands to tribes from the corporations, an idea quickly rejected by Congress and the corporations.

Worl wrote that during the 2002 Alaska Federation of Natives convention the congressional delegation warned that the 200 tribal governments in Alaska were not sustainable. “While the delegation did not suggest that Alaska Natives seek the elimination of tribal governments,” she wrote, “they did advance the notion of the ‘regionalization’ of tribes to support fiscally efficient delivery of services.”

One study in the 1990s found that tribal sovereignty was an economic opportunity that could bring $400 million a year into the state.

By 2017 the state of Alaska was in agreement. Attorney General Jahna Lindemuth wrote an extensive memo on the powers of tribes and concluded: “The law is clear. There are 229 Alaska Tribes and they are separate sovereigns with inherent sovereignty and subject matter jurisdiction over certain matters. Indian country is not a prerequisite for Alaska Tribe’s inherent sovereignty or subject matter jurisdiction, but it may impact the extent of that jurisdiction.”

Most of the tribes arguing against funding Alaska Native corporations from the CARES Act relief fund make that same case, that money should be used to to support governments with a political relationship with the United States.

The Aleut Community of St. Paul Island says there is a middle ground. “It is very unfortunate the situation has become so volatile and harsh words have been passed between leaders of the tribal nations and the Federal Government,” wrote Amos T. Philemonoff, Sr. in a letter to the Treasury Secretary. “A very workable solution to controversy (is) the authorization by Alaska’s federally recognized tribes for tribal organizations/consortia to receive funding on their behalf, if they so choose.”

Philemonoff makes the case to let the money flow up, not down.

However in an op-ed published in Indian Country Today four leaders of Alaska Native corporations had their own take. “The CARES Act is unambiguous: Alaska Native villages, Alaska Native regional corporations, and Alaska Native village corporations are “tribes” under the law,” wrote Gail Schubert, president and CEO of Bering Straits Native Corporation, Sophie Minich, president and CEO of CIRI, Sheri Buretta, chairman of the board, Chugach Alaska Corporation and Shauna Hegna, president of Koniag.

“The law is clear. Our legal mandate as Alaska Native corporations is to support our Alaska Native communities and shareholders economically, culturally and socially,” they wrote.

The federal court, like the spending program itself, is on a tight deadline. Once the money begins to flow any legal challenge could be irreversible.

Mark Trahant is the editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter @TrahantReports.

Note: This story originally appeared on Indian Country Today on April 20, 2020.

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