Sen. Dan Sullivan (R-Alaska). Courtesy photo

MURKOWSKI, SULLIVAN SECURE EXTENSION ON COVID RELIEF DOLLARS FOR ALASKA NATIVES

Senate Passes Bill to Allow Unspent COVID Relief Dollars for Infrastructure, Disaster Relief

October 21, 2021

Source: Sen. Dan Sullivan (R-Alaska)

WASHINGTON—U.S. Senators Lisa Murkowski and Dan Sullivan (both R-Alaska) welcomed the Senate’s passage last night of S.3011, the State, Local, Tribal, and Territorial Fiscal Recovery, Infrastructure, and Disaster Relief Flexibility Act, legislation that includes a provision the senators authored granting an extension until December 31, 2022 for tribes—including Alaska Native Corporations (ANCs)—to spend Coronavirus Relief Fund (CRF) resources from the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act. 

The eligibility of ANCs for this COVID-19 relief has undergone months of litigation, culminating in a June decision by the U.S. Supreme Court upholding their access to the tribal set-aside within Title V of the CARES Act. ANCs, having only recently received disbursements from the Treasury Department, have been requesting more time to spend the roughly $443.8 million allocated to them, which was set to expire at the end of 2021.

The legislation also makes several categories of infrastructure investments and disaster relief eligible for unspent COVID-19 relief dollars and extends the deadline to utilize relief funding if budgeted for eligible infrastructure projects. 

“This CARES Act extension is critically important for Tribal governments who received their CARES Act allocations late due to litigation over eligibility, more than a year after disbursements to other Tribal governments began. This bill allows more flexibility to state and local governments to determine how to best utilize COVID relief federal funding,” said Senator Murkowski. “Alaska has been leading the nation in positive cases per capita, and sadly our state also recently logged the nation’s highest rates for COVID-19 fatalities on a per capita basis. Our entire state, including Alaska Native communities, continue to experience hardships from the pandemic due to COVID-19 variants and still need to make use of these relief funds. I urge the House to swiftly pass this legislation to provide certainty to Tribal governments affected by late disbursements as well as empower local leaders to make decisions on what’s best for their communities.” 

“ANCs have been left in limbo since the spring of 2020, hopeful but uncertain that they would have fair access to CARES Act tribal resources,” said Senator Sullivan. “With the Supreme Court’s just decision upholding Alaska’s unique tribal system for delivery of services and ANCs’ access to these federal resources, ANCs are facing a time crunch to get COVID-19 relief dollars out the door. This unnecessary rush is not in the interest of good governance or the people we serve. I thank my colleagues for joining us in this effort, which isn’t about spending new federal dollars, but rather granting reasonable flexibility to deploy CARES Act relief in the best interests of our constituents, whose lives, businesses and communities have been upended by the pandemic.”

The larger bill, led by Senators John Cornyn (R-Texas) and Alex Padilla (D-Calif.), grants greater flexibility for states, tribes, and units of local government to spend their allocations under the CARES Act. The bill sets a cap—the greater of either $10 million or 30 percent of the funds—on how much of the relief money can be spent on new purposes, like infrastructure investments. 

Timeline:

• On March 27, 2020, the CARES Act was signed into law, including an $8 billion set-aside for tribal governments.
• On April 14, 2020, the Alaska congressional delegation wrote to Treasury Secretary Steven Mnuchin and Interior Secretary David Bernhardt detailing the unique legal framework and circumstances for tribal entities in Alaska. The letter provided a historical background on Alaska regional corporations, which are made eligible for CARES Act assistance because of the definition of “Indian tribe” used in the bill.
• In April of 2020 several tribes filed lawsuits to prevent CARES Act funds from being distributed to ANCs.
• On April 23, 2020, the delegation penned an op-ed in the Anchorage Daily News to correct the mischaracterizations about ANCs and explain why the entities are eligible for CARES Act funds.
• On June 26, 2020, U.S. District Judge Amit Mehta ruled ANCs are eligible for the aid. Judge Mehta based his decision on the definition of “Indian tribe” provided by the 1975 Indian Self-Determination and Education Assistance Act and used in the CARES Act, which included ANCs.
• On September 25, 2020, the U.S. Court of Appeals for the D.C. Circuit overturned the June 26 ruling and determined ANCs are ineligible for tribal assistance appropriated by the CARES Act.
• In November of 2020, the Alaska congressional delegation filed an amicus curiae brief urging the Supreme Court to grant the petition for a writ of certiorari in support of ANC eligibility for tribal assistance appropriated by the CARES Act. 
• On February 26, 2021, the Alaska delegation filed an amicus brief in support of the ANCs on the merits of the case. The amicus brief warns that the indigenous peoples of Alaska will suffer significant negative consequences as a result of the D.C. Circuit Court of Appeals’ September 25, 2020 decision, which held that ANCs are ineligible for the CARES Act CRF tribal set-aside. The D.C. Circuit Court’s decision, the delegation argued, destabilizes agency and legislative practice in place for over 40 years as well as systems in place that deliver programs and services to Alaska Natives across the state.
• On June 25, 2021, the U.S. Supreme Court ruled in Yellen v. Confederated Tribes of the Chehalis Reservation, upholding the decades-long inclusion of ANCs as “Indian tribes” under the Indian Self-Determination and Education Assistance Act (ISDA),also known as ISDEAA, confirming ANC eligibility for the CRF tribal set-aside within Title V of the CARES Act. 
• On September 14, 2021, Sen. Sullivan introduced and Sen. Murkowski cosponsored S.2728, a bill to extend the deadline for tribal governments to utilize CARES Act resources. The bill language was incorporated into Senators Cornyn and Padilla’sState, Local, Tribal, and Territorial Fiscal Recovery, Infrastructure, and Disaster Relief Flexibility Act, passed by the Senate on October 19.