Alaska Gov. Mike Dunleavy (R): Address to Alaska Federation of Natives – October 15, 2020
State of Alaska backs Native corporations in COVID-19 dispute
Thursday, November 5, 2020
Indianz.Com

The state of Alaska is siding with Native corporations over tribal governments in a closely-watched COVID-19 case pending before the U.S. Supreme Court.

In a brief filed on Wednesday, the state admits that Alaska Native corporations are not “sovereign entities”. And unlike Indian nations, the corporate entities lack a “government-to-government relationship” with the United States, the Alaska attorney general’s office acknowledges.

But the state argues that the shortcomings should be overlooked in order for the corporations to be treated as “Indian tribes.” That would allow them to shares of an $8 billion coronavirus relief fund that Congress established to help tribal, state and local governments get through the ongoing public health crisis.

“The state of Alaska has a strong interest in ensuring that all of its Alaska Native citizens receive the critical coronavirus relief funds that Congress intended for them,” the 26-page document reads.

With the brief, the state appears to be addressing a single sentence contained in the D.C. Circuit Court of Appeals ruling in the case. According to the state, Alaska Native corporations (ANCs) provide services to Native citizens that the state cannot.

“State-run programs are already financially strained, and Alaska —- a state which derives much of its revenue from tourism and natural resource production and is thus already acutely impacted by the pandemic — is no different,” the brief reads. “Cutting off funding to the ANCs, which provide services to tens of thousands of Alaska Natives, will create a chasm that the state simply will be unable to fill — especially given the immediacy of the needs presented by the ongoing pandemic.”

mikedunleavy
Alaska Gov. Mike Dunleavy (R) participates in a COVID-19 town hall on September 15, 2020. Photo: Governor Dunleavy

In the September 25 ruling, a three-judge panel of the D.C. Circuit noted the possibility for some Native residents to go without COVID-19 support because they lack citizenship in one of the 220-plus federally recognized tribes in Alaska. The observation was found toward the end of the decision.

“We are confident that, if there are Alaska Natives uncared for because they are not enrolled in any recognized village, either the state of Alaska or the Department of Health and Human Services will be able to fill the void,” Judge Gregory Katsas, who was nominated to the bench by President Donald Trump, wrote for the court.

In the brief, Alaska offers a major reason for its inability to help these Native residents. The state doesn’t want to spend the funds it received under the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, on them.

“The state has already fully allocated all of the federal CARES Act funds it received, and already committed most of those funds to municipal assistance, small business relief, homeless assistance, nonprofit relief, and general health/pandemic response,” the brief reads.

The state also does not explain why the 220-plus recognized tribes in Alaska aren’t able to offer COVID-19 support to non-enrolled Native residents. Like their counterparts in the lower 48, these Indian nations received shares of the $8 billion fund.

“While the state always strives to help all of its citizens, it is not the state’s duty to fulfill the federal government’s unique trust responsibilities to Alaska Natives,” the brief contends.

Historically, Alaska has had a contentious relationship with federally recognized tribes. For decades, state officials did not acknowledge their existence until the 1999 ruling from the Alaska Supreme Court in Baker v. John.

But even today, the state government, as a whole, does not formally acknowledge Indian nations as sovereign governments. Tribes are supporting a bill, HB221, that would finally recognize their true status.

“Alaska tribes have been active partners with the state to address many issues in our communities – from public safety to temporary assistance for needy families to natural resources,” President Richard J. Peterson of the Central Council of Tlingit and Haida Indian Tribes wrote in a letter of support.

“This bill (HB221) will show that the state formally recognizes our inherent authority to serve our citizens and further strengthen that partnership,” said Peterson, who also testified in support of the measure at a pre-pandemic hearing in February.

Richard (Chalyee Éesh) Peterson serves as president of the Central Council of the Tlingit and Haida Indian Tribes. Photo: CCTHITA

While the partnership has improved in recent years, Alaska continues to attack tribal rights in other ways. The state, for example, doesn’t want tribes to be able to restore their homelands through the land-into-trust process — even though the D.C. Circuit ruled in their favor more than four years ago.

In a January 2019 letter to the Trump administration, which suspended the fee-to-trust process in Alaska without prior notice or consultation, the state said the Alaska Native Claims Settlement Act, the federal law that created the Alaska Native corporations, bars tribes from restoring their homelands. The argument runs counter to the D.C. Circuit decision, which has never been overturned.

“Placing new land into trust in Alaska is antithetical to the settlement embodied in ANCSA,” then-attorney general Kevin Clarkson wrote on behalf of Gov. Mike Dunleavy, a Republican who often mentions that his spouse and their children are ANC shareholders.

“Allowing new trust acquisitions in Alaska — and thereby reestablishing a privileged category of property and a trusteeship that ANCSA largely extinguished — begins unwinding ANCSA’s settlement,” the letter continues.

In August, Clarkson resigned as attorney general after admitting sending inappropriate messages to a state employee. Dunleavy said the former official’s behavior was unprofessional.

Not all members of the GOP agree with the state’s anti-tribal stances. State Rep. Chuck Kopp, the Republican sponsor of the tribal acknowledgment bill, says the state’s “painful past” continues to inflict damage today.

“Many of the struggles facing Alaska today, from the public safety crisis, suicide, the epidemic of sexual assault and domestic violence have only been reinforced by the state’s policy of telling its tribal peoples that their form of government has no existence, no standing, and no recognition,” Kopp wrote in his sponsor statement for HB221.

“It is time to stop this policy and break from the past and usher in a new era that seeks to reconcile all the state’s peoples one to another,” Kopp stated.

Through the CARES Act, Congress set aside $8 billion for tribal governments. Of the total, Indian nations in Alaska have received about $308 million, according to data posted on usaspending.gov, a federal government site that was recently updated with COVID-19 spending amounts.

Indianz.Com Video: D.C. Circuit Court of Appeals – Confederated Tribes of the Chehalis Reservation v. Steven Mnuchin – September 11, 2020

In comparison, the Trump administration is holding onto about $534 million for the Alaska Native corporations in the event that the Supreme Court agrees to hear the COVID-19 case and overruns the D.C. Circuit’s decision. There is no guarantee both of those events will happen.

If the D.C. Circuit decision stands, the Trump administration would be required to distribute the leftover funds to all 574 federally recognized tribes — including those in Alaska. But any delay in funds could cost recipients dearly, as the CARES Act requires the money to be allocated by December 30.

The Alaska Native corporations filed their petition to overturn the D.C. Circuit ruling on October 21. The Trump administration filed its own petition on October 23.

The tribes that are part of the case have until until November 25 to respond to the petitions in Alaska Native Village Corporation Association, Inc. v. Confederated Tribes of the Chehalis Reservation and Steven T. Mnuchin, Secretary of the Treasury v. Confederated Tribes of the Chehalis Reservation.

D.C. Circuit Court of Appeals Decision
Confederated Tribes of the Chehalis Reservation v. Steven Mnuchin (September 25, 2020)

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