Tribes and Native corporations still at odds over disputed COVID-19 funding
Thursday, October 1, 2020
By Acee Agoyo
With sparring continuing in court, time is running out on the $8 billion in COVID-19 relief that was promised to tribal governments more than six months ago.
Although most of the money has been allocated as the coronavirus continues to impact American Indians and Alaska Natives at disproportionate rates, a significant sum — about $535 million — is still on the table. The leftover funds have been the subject of one of the most bitter policy and legal disputes in recent history.
Just last Friday, the dispute was seemingly resolved. In a unanimous decision, the D.C. Circuit Court of Appeals held that Congress intended the money to go to sovereign tribal governments, not to for-profit Alaska Native corporations, also known as ANCs.
Yet Indian nations are no closer to securing the remaining dollars. The Trump administration, whose officials have supported the ANCs despite opposition from tribes and tribal organizations in every region of the country, has not committed to following the ruling.
As a result, tribes are prepared for continued litigation. The case could even end up at the U.S. Supreme Court, where Indian Country doesn’t have such a great track record.
Cherokee Nation Principal Chief @ChuckHoskin_Jr issues the following statement today on the court’s opinion regarding Alaska Native Corporations non-entitlement to CARES Act funds. pic.twitter.com/Jt3dX2FVgy
Yet the same deadline applies to the ANCs. Should they eventually prevail, they won’t have much time to spend the money either, even though their shareholders and the communities they serve have been dealing with the coronavirus for just as long as the rest of Indian Country.
“This ruling is a devastating blow to Alaska Native communities facing an alarming increase in COVID-19,” the ANCSA Regional Association and the Alaska Native Village Corporation Association said of the September 25 decision from the appeals court.
“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,” the organizations added in a statement.
“As a leading voice for Alaska’s Native communities, the ANCSA Regional Association and Alaska Native Village Corporation Association will continue to fight for the federal assistance our people need to survive this pandemic,” they said.
So far, the ANCs have not yet indicated how they will keep fighting. As of Thursday night, they had not asked the D.C. Circuit to rehear the case.
But in a filing this week, the ANCs laid the grounds for reconsideration. They said the D.C. Circuit’s opinion conflicts with one from the 9th Circuit Court of Appeals regarding the treatment of Native corporations under federal law.
“That acknowledged circuit split creates a distinct prospect for further review,” asserted attorney Paul Clement, who is one of the most prominent Republican legal advocates in America.
The Trump administration hasn’t taken any steps to appeal either. But in a filing of their own, government attorneys admitted that Secretary of the Treasury Steve Mnuchin would have to pay the leftover COVID-19 funds to tribes, not to the corporations.
According to the Department of Justice, “if this court’s recent decision becomes final, then a court could issue an appropriate order, and the Secretary could pay the remaining funds to federally recognized tribes.”
Yet up until the government informed the D.C. Circuit of its position on Wednesday, tribes weren’t so sure their trustee would distribute the money. In fact, they became so alarmed about the COVID-19 relief disappearing in the federal bureaucracy forever that they filed an “emergency” request to ensure the $535 million stays on the table.
“Plaintiffs had hoped that, in the wake of the decision, the Secretary would provide sufficient assurance of his willingness and authority to disburse the remaining Title V monies to federally recognized Indian tribes and Alaska Native villages, either before the end of the fiscal year, or after its conclusion if he or the defendant-intervenors intend to seek further review of this court’s decision,” the tribes wrote on Tuesday, referring to the section of the CARES Act pertaining to the coronavirus relief fund.
“The Secretary has declined to provide that assurance,” the tribes said in their joint motion.
And even though the government responded on Wednesday with a promise to pay in the event it is ordered to pay, not everyone was convinced. Attorneys for the Ute Tribe wrote separately to underscore their unwillingness to suspend their disbelief.
“To avoid any potential later claims to the contrary, the Ute Tribe notes that its position is that under the CARES Act, the United States will have the duty to promptly make payment after this court issues is mandate, unless a party moves for and obtains a further injunction,” the attorneys stated.
But with the window still open for further appeals, including one to the Supreme Court, the D.C. Circuit laid down some ground rules in response to the sparring. An order issued later on Wednesday cleared the way for Treasury to pay the COVID-19 funds once the litigation concludes, whenever it concludes.
The most obvious route for an appeal would be to ask the D.C. Circuit to rehear the case en banc, meaning it would be heard by a larger panel of judges. These kinds of petitions are typically granted in situations of significant legal importance, or in the instance of circuit splits, as Clement pointed out.
Last week’s decision was issued by a panel of three judges, with the court’s opinion being written by Judge Gregory Katsas, who was nominated to the bench by President Donald Trump.
It’s also possible for the Trump administration, or the ANCs, to take the matter directly to the Supreme Court, whose October 2020 term begins on Monday. But the passing of Justice Ruth Bader Ginsburg has made this route of appeal less desirable.
While the nation’s highest court can operate with eight justices, any 4-4 ties will result in the lower ruling being affirmed. It’s happened not only once but twice in Indian law cases in the last four years.
The number goes up to three if the court’s failure to resolve one of the most consequential Indian law cases in recent history is taken into account. The prospect of another one would not be favorable to the ANCs or the Trump administration.
Trump has nominated Amy Coney Barrett, a federal appeals court judge with virtually no experience in Indian law, to fill the vacancy left by Ginsburg’s passing on September 18 at the age of 87.
Republicans are moving quickly to confirm the president’s pick, with confirmation hearings scheduled to begin on October 12.
Through the CARES Act, Congress authorized a total of $150 billion in COVID-19 relief for tribes, states and local governments. Of the overall amount, $8 billion was set aside for tribal governments, though the law did not explicitly define the term.
The CARES Act instead made reference to “Indian tribes,” as defined by the Indian Self- Determination and Education Assistance Act. The landmark law, which dates to 1975, authorizes tribal governments, as well as Alaska Native corporations, to manage federal programs as they see fit.
Relying on the long-standing definition, the Department of the Treasury concluded that ANCs are entitled to shares of the $8 billion coronavirus relief fund.
The D.C. Circuit, however, said Treasury got it wrong. While ANCs are “Indian tribes” for purposes of self-determination contracts, they are not “recognized” governments that enjoy a unique relationship with the United States by virtue of their inherent sovereignty, Judge Katsas wrote for the court.
“The ANCs have not satisfied the recognition clause as we construe it,” Katsos observed after recounting the history of the termination era, in which some tribes lost their government-to-government status, that preceded the age of self-determination.
“They do not contend that the United States has acknowledged a political relationship with them government-to-government,” he said of the Native corporations, of which there are more than 200 in Alaska.
Alaska is also home to more than 220 sovereign tribal governments. Like their counterparts in the lower 48, they too have received shares of the coronavirus relief fund.
But Treasury’s allocation method has exposed a disparity in Alaska. While about $535 million has been set aside for the ANCs, the tribes in the 49th state have received only about $308 million, according to data posted on usaspending.gov, a federal government site that was recently updated with COVID-19 spending.
ANCSA Regional Association and the Alaska Native Village Corporation Association Statement
The full September 25, 2020, statement from the ANCSA Regional Association and the Alaska Native Village Corporation Association follows:
“This ruling is a devastating blow to Alaska Native communities facing an alarming increase in COVID-19. 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.
For forty years, courts and administrative agencies have consistently recognized that Alaska Native communities are uniquely organized, as designed by Congress. Within this framework that includes both regional and village corporations, we strive every day to bring our ‘shareholders’ – our Alaska Native brothers and sisters – economic opportunity, as well as vital social, health, cultural and educational services. Until today, our status as Indians under the Indian Self Determination and Education Assistance Act, which expressly includes Alaska Native Corporations among other types of Indian Tribes, has never been called into doubt.
As a leading voice for Alaska’s Native communities, the ANCSA Regional Association and Alaska Native Village Corporation Association will continue to fight for the Federal assistance our people need to survive this pandemic.”