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President Jonathan Nez of the Navajo Nation, seated, takes part in a gaming compact signing ceremony in Phoenix, Arizona, on April 15, 2021. The Navajo Nation is part of CARES Act litigation before the U.S. Supreme Court. Photo: Navajo Nation Office of President and Vice President
Indian Country nearly locked out of U.S. Supreme Court hearing
Infighting among tribal attorneys led to game of chance
Monday, April 19, 2021
Indianz.Com

• Indianz.Com on Clubhouse: Supreme Court COVID-19 CARES Act Case 🎧👂 🗞

A long-running dispute over COVID-19 relief for tribal governments is finally before the nation’s highest court but Indian Country almost lost out on the chance to present their side due to infighting among attorneys involved in the case.

With the coronavirus still having disproportionate impacts on American Indians and Alaska Natives, tribes remain united on the central issue in the matter. They contend that $8 billion from the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act was intended for sovereign Indian nations, rather than for-profit Alaska Native corporations (ANCs).

Yet on the eve of oral arguments in Yellen v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, attorneys representing the dozen-plus tribal plaintiffs were still at odds over who was going to present the case. The disagreement became so bitter that one tribal leader warned that the U.S. Supreme Court was going to hear arguments on Monday morning without even bothering to let Indian Country have its say.

“These types of divide and conquer tactics are nothing new to Indian Country,” Chairman Luke Duncan of the Ute Tribe, one of the tribal plaintiffs, wrote in an open letter.

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The infighting played out in motions submitted to the nation’s highest court. The Ute Tribe on March 31 asked to share argument with the lead attorney for the lawsuit that was filed first in federal court.

But attorneys for these other tribal plaintiffs didn’t think that would have been a good use of the 30 minutes allotted for Indian Country’s side of the case on Monday. In a response to the Ute Tribe’s motion, they characterized the sharing of argument time as a distraction to the central issue before the justices — whether ANCs are entitled to the COVID-19 funds.

“In the view of the undersigned sixteen respondents, divided argument is not necessary,” attorneys for 16 tribes told the Supreme Court on April 7.

Soon enough, however, it became clear to Indian legal experts that the lack of agreement among the tribal plaintiffs was in fact threatening their ability to be heard. Last week, some of them feared that the Supreme Court might even cancel the hearing altogether, and just decide the case on the briefs.

Chairman Duncan’s letter, which accused the venerated Native American Rights Fund of undermining the sovereignty of Indian nations, wasn’t helping either, they concluded.

So last Thursday, with the hearing just days away, the other tribal plaintiffs relented.

“Since the undersigned respondents filed their initial response to the motion for divided argument, all respondents have been in discussions about the oral argument in this case, which is scheduled to be held on April 19,” the attorneys wrote in a supplemental response. “In light of those discussions and further consideration, the undersigned respondents clarify that they do not oppose the Ute Tribe’s motion for divided argument.”

But the Supreme Court of the United States isn’t called “supreme” just for any old reason. On Friday, the nation’s highest court kept the Indian Country attorneys at the edges of their seats, barely one business day before oral arguments.

Early in the afternoon, the court issued a ruling on the Ute Tribe’s motion, denying the request for a divided argument. The development made it appear that the case would be argued by Riyaz Kanji, the lead attorney for Confederated Tribes of the Chehalis Reservation v. Yellen, which was the first CARES Act lawsuit filed in federal court exactly one year ago.

Yet the Supreme Court still hadn’t issued what is known as a “day call” for Monday’s arguments. Behind the scenes, it turned out that the court still had one more trick up its sleeve.

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So a couple of hours later on Friday afternoon, the clerk of the high court gathered the tribal attorneys on a conference call, according to multiple persons involved. They were informed that the court was going to decide who gets to argue the tribal side of the case by drawing paper slips.

But some confusion arose. Since only the Utes sought divided argument, the other tribes thought the drawing would come down to a contest between Kanji — who just last year shared argument during the the historic McGirt v. Oklahoma case which resulted in a landmark victory for treaty rights — and one of the Ute attorneys, namely Jeff Rasmussen, who has never presented to the nation’s highest court.

The Supreme Court had other ideas, much to the consternation of the more seasoned attorneys. The clerk instead came up with a total of 17 paper slips, with 16 bearing Kanji’s names for the 16 tribes that were on one side of the dispute. Only one slip bore Rasmussen’s name.

“This was an innovation by the court to resolve this,” one Indian law expert familiar with the conference call on Friday told Indianz.Com.

So getting to decide who argues before the Supreme Court in one of only two Indian law cases on the docket came down a game of chance.

Sure enough, the clerk drew one of 17 slips of paper. Despite the odds stacked heavily against him., Rasmussen ended up winning the drawing.

But there were no hard feelings from the other side, according to the expert who was closely connected to the behind-the-scenes drama.

“Riyaz was very professional,” this person said in reference to Kanji

Kanji in fact who ended up participating in a two-hour mock court session with Rasmussen and other Supreme Court practitioners on Saturday, in preparation for Monday’s hearing. Although multiple sources told Indianz.Com that the session didn’t go as well as expected, some remained optimistic now that the infighting is over, at least for now.

“I think he’ll do much better than he did at the moot court,” the expert said of Rasmussen, who works out of the Colorado office of the Patterson Earnhart Real Bird & Wilson law firm.

With the drama settled and the day call issued, the Supreme Court will first hear from the federal government and from the Alaska Native Corporations at Monday’s hearing. Matthew Guarnieri, who is an Assistant to the Solicitor General at the Department of Justice, and Paul Clement, a high-profile attorney who has argued more cases before the Supreme Court than any other person, are sharing 30 minutes of argument time.

Through it was the Donald Trump administration which decided that ANCs could share in the CARES Act funding, President Joe Biden has maintained the same legal and policy position in the case.

Rasmussen will have 30 minutes of solo time to argue the tribal side. The arguments are taking place remotely, with the Supreme Court having been closed to in-person proceedings and to the public since the onset of the coronavirus more than a year ago.

The hearing is scheduled to start at 10am Eastern. It will last one hour although the justices tend to go long whenever they take up Indian law disputes.

C-SPAN will carry the live audio broadcast of the arguments. Indianz.Com is also hosting a room on Clubhouse, the audio-based social media platform, to share the hearing.



The CARES Act provided $8 billion in COVID-19 relief to tribal governments. Of that amount, all but about $534 million has been distributed by the Department of the Treasury, with former Secretary Steven Mnuchin overseeing the process during the onset of the pandemic in 2020.

Should the Supreme Court side with the Biden administration and the ANCs, the Alaska corporations would be entitled to payments from the remaining $534 million. However, Secretary of the Treasury Janet Yellen has since engaged in new consultations with tribes to determine whether the prior allocation method was fair, in response to yet another CARES Act lawsuit known as Shawnee Tribe v. Yellen.

The outcome of those discussions, as well as the forthcoming ruling from the Supreme Court, will have an impact on how the remaining $534 million is distributed, as the D.C. Circuit Court of Appeals has held that some tribes were underpaid by the Trump administration.

The D.C. Circuit was the same court which held that the ANCs are not entitled to CARES Act funds are not recognized in the same manner as Indian nations, whose governments have maintained a nation-to-nation relationship with the United States.

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

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