Navajo Nation President Jonathan Nez tours an alternative coronavirus care site being constructed in Chinle, Arizona, on April 27, 2020. Photo: Navajo Nation Office of the President and Vice President

Judge sides with tribal governments in first round of $8 billion coronavirus dispute

Tuesday, April 28, 2020

By Acee Agoyo

Tribal leaders and their advocates are celebrating after securing an initial victory against the Trump administration over its handling of an $8 billion coronavirus relief fund that's at the center of one of the most divisive legal and political battles in recent history.

In a highly-anticipated decision on Monday, Judge Amit P. Mehta temporarily blocked the Department of the Treasury from distributing any of the $8 billion to Native corporations in Alaska. He held that tribal governments would suffer "irreparable harm" if payments go out to the for-profit entities as expected.

“Federally-recognized tribes stood together to oppose the actions of the Department of the Treasury in another attempt to undermine the first citizens of this country, but our voices were heard and Indigenous people prevailed today!" President Jonathan Nez of the Navajo Nation, one of the plaintiffs in the litigation, said in a statement after the ruling.

“Our voices were heard and Indigenous people prevailed today!": Navajo Nation President Jonathan Nez on #CARESAct decision affecting Trump administration's handling of $8 billion #CoronavirusReliefFund promised to tribal governments. #Coronavirus @NNPrezNez @NNVPLizer2019 pic.twitter.com/ILLTrFoc9m
— indianz.com (@indianz) April 28, 2020

And while the fight is far from over, Mehta resolved a major issue in the dispute in favor of Indian nations. He determined that Alaska Native corporations, which are incorporated under state law, are not "tribal governments" as defined in the H.R.748, the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act.

"Federally recognized tribal governments, across the United States including in Alaska, work daily to help mitigate the impact of the COVID-19 pandemic," Chief Chuck Hoskin Jr. of the Cherokee Nation, who likened the controversy to a robbery in broad daylight and who submitted a sworn declaration in the case, said in a statement. "Congress clearly intended these governments, not Alaska corporate interests, to utilize the limited amount of CARES Act funds for recovery in Indian Country."

"Federally recognized tribal governments, across the United States including in Alaska, work daily to help mitigate the impact of the #COVID19 pandemic": Cherokee Nation Chief Chuck Hoskin Jr. said of court ruling affecting $8 billion #CoronavirusReliefFund. @ChuckHoskin_Jr pic.twitter.com/BybBVPmur5
— indianz.com (@indianz) April 28, 2020

But corporate interests in Alaska are not pleased. While not parties to the litigation, they argued in briefs that their entities, which were established pursuant to the Alaska Native Claims Settlement Act (ANCSA) of 1971, should be treated in the same manner as the 574 federally recognized tribal governments, whose existence pre-dates the U.S. Constitution and whose exercise of sovereignty is inherent.

"This will mean a delay in necessary resources and economic assistance for Alaska Native people in our communities and our state," the Alaska Native Village Corporation Association and ANCSA Regional Association said of decision in a statement.

Despite the bitter disagreement, all 220-plus federally recognized Indian nations in Alaska have always been eligible the $8 billion fund. Six joined the CARES Act litigation, and every tribe in the state will benefit in the same manner as their brethren in the lower 48.

And any delay in payment -- according to the Trump administration itself -- comes at the hands of the Trump administration. After being charged by the CARES Act to distribute the $8 billion to tribal governments within 30 days, Treasury has yet to determine how to do that.

The 30-day deadline passed on Monday. But in court filings and during a hearing on Friday, government attorneys said payments would not go out until Tuesday at the very earliest.

The United States has taken on moral obligations of the highest responsibility and trust to tribes and their citizens. The government-to-government relationship is acknowledged by treaties, numerous acts of Congress and executive orders. It has been affirmed and reaffirmed countless times in the judicial system, including by the U.S. Supreme Court, the highest in the land.

A federal judge’s decision is a win for federally recognized tribal governments and clarifies that Alaska Native corporations are not tribal governments, NAFOA @nafoaorg said of #CARESAct ruling affecting $8 billion #CoronavirusReliefFund. #COVID19 https://t.co/ZX2oPQABBn
— indianz.com (@indianz) April 28, 2020

The lack of clarity from the most powerful nation in the world stands in marked contrast to the way President Donald Trump and his administration have portrayed their role in responding to the worst public health crisis to hit Indian Country in decades. They have promised an "all-of-government approach" to the COVID-19 pandemic, yet the first Americans continue to be left behind, with tribal leaders repeatedly complaining that billions of dollars in coronavirus grants, assistance, resources and other relief has been slow to reach some of the hardest-hit communities in the nation.

The CARES Act, in total, set aside $150 billion for tribes, states and local governments. Indian Country is the only one that has yet to see a penny. As of Friday, Treasury had distributed almost all of the money to states and local governments, according to the agency's daily statement.

Tribal nations were also required to submit CARES Act "certification" forms about their population, land base, employee count and expenditures under the threat of federal prosecution. The same level of detail wasn't required of other governments, whose submissions weren't being verified by Uncle Sam, a situation that led to a huge leak of Indian Country's sensitive data.

And unlike other governments, tribes and their representatives were forced to sit through two consultation calls earlier this month that drew nearly 3,000 participants. But it was only a day after the final session that they were made aware of the inclusion of Alaska Native corporations in the $8 billion fund.

“Native people and the governments that serve Native people are entitled to these life-saving funds; not for-profit corporations," Nicole Ducheneaux, who is part of a team of Native women attorneys in the case, told Indianz.Com on Monday evening.

“We won today, but we will keep fighting if we must,” said Ducheneaux, whose team is representing the Cheyenne River Sioux Tribe, the Rosebud Sioux Tribe, the Oglala Sioux Tribe, the Nondalton Tribal Council, the Native Village of Venetie and the Arctic Village Council as part of one of the cases, Cheyenne River Sioux Tribe v. Mnuchin.

"We won today, but we will keep fighting if we must": Nicole Ducheneaux, partner at Big Fire Law and Policy Group, reacts to decision in #CARESAct lawsuit affecting $8 billion #CoronavirusReliefFund. #Coronavirus #COVID19 @bigfirelaw https://t.co/vzsvLRYxcx pic.twitter.com/sbBjHYNJzk
— indianz.com (@indianz) April 28, 2020

The first CARES Act lawsuit to hit the court docket was Confederated Tribes of the Chehalis Reservation v. Mnuchin. The plaintiffs are the Confederated Tribes of the Chehalis Reservation, Tulalip Tribes, the Houlton Band of Maliseet Indians, the Akiak Native Community, the Asa’carsarmiut Tribe, the Aleut Community of St. Paul Island, the Navajo Nation, the Quinault Nation, the Pueblo of Picuris, the Elk Valley Rancheria and the San Carlos Apache Tribe.

“The Chehalis Tribe is pleased that the court saw what was obvious to many of us. Corporations have no place taking dollars that were allocated for tribal governments, period!” Chairman Harry Pickernell Sr. said in a statement. “This ruling will ensure that tribes and tribal members will reap the intended benefits that Congress envisioned in the CARES Act. This ruling will help tribal governments to lead in the aid and recovery of their people.” 

The third lawsuit is Ute Indian Tribe of the Uintah and Ouray Indian Reservation v. Mnuchin. The sole plaintiff is is the Ute Tribe.

In support of the tribal plaintiffs, every major inter-tribal organization representing nearly every federally recognized tribe submitted a brief in the litigation. Key members of Congress, on both sides of the aisle, have been paying close attention to the dispute.

“The #CoronavirusReliefFund we passed in the #CARESAct is meant to ensure Tribal & Alaska Native governments have the resources they need to continue government services & save the lives of those in their community": Rep. Ruben Gallego (D-AZ) reacts to ruling in $8 billion case. pic.twitter.com/7J1ar2x9fq
— indianz.com (@indianz) April 28, 2020

“The Coronavirus Relief Fund we passed in the CARES Act is meant to ensure tribal and Alaska Native governments have the resources they need to continue government services and save the lives of those in their community," Rep. Ruben Gallego (D-Arizona), the chairman of the House Subcommittee for Indigenous Peoples of the United States, said in a statement on Monday evening. "It was not meant to be diverted to multi-billion-dollar Alaska Native corporations that have connections to this administration."

Assistant Secretary for Indian Affairs Tara Sweeney, who helped lead the CARES Act consultation and played a significant role in Treasury's determination to include for-profit corporations in the $8 billion fund, is a former high-ranking executive of Arctic Slope Regional Corporation, the wealthiest Native business entity in Alaska.

In paving the way for Native corporations to receive shares of the $8 billion, Sweeney and the Trump administration have had the support of Alaska's powerful, all-Republican delegation to Congress. Like the for-profit entities, weren't happy with the judge's decision either.

Indianz.Com Video: #CoronavirusReliefFund: Reaction from Alaska

“I am very disappointed," Sen. Lisa Murkowski (R-Alaska), whose high-ranking position on the Senate Committee on Appropriations helps her steer crucial resources to Alaska, said during a live coronavirus update hosted by the state governor on Monday evening. "The intent in the CARES Act was very clear, very clear."

The judge disagreed with the contention, which was based on a reading of the Indian Self-Determination and Education Assistance Act (ISDEAA) that has been deeply debated in the case. The definition was cited by the Department of the Interior, where Sweeney serves as political appointee in the Trump administration, in explaining why the political establishment in Washington and in Alaska believe Native corporations are entitled to the $8 billion.

During the live broadcast, Sen. Dan Sullivan (R-Alaska) asserted that the definition was "not controversial." "It’s a 40 year-old-plus definition," he said. "It includes Alaska Native regional and village corporations."

Posted by Alaska Native Village Corporation Association - ANVCA on Monday, April 27, 2020

Mehta, who was nominated to the federal bench by Democratic former president Barack Obama, looked closely at the arguments on both sides. While Native corporations play major role in the economic, social and cultural livelihoods of their shareholders and their communities, they are not "recognized" tribal governments, he determined.

"As no known ANC satisfies ISDEAA’s eligibility clause, no ANC can partake in the $8 billion funding set aside for tribal governments," Judge Mehta wrote in the 34-page decision, which was accompanied by an order granting a preliminary injunction against the Trump administration.

The issuance of a preliminary injunction sets the stage for continued litigation. As the defendant, Secretary of the Treasury Steve Mnuchin will be able to take the decision immediately to the D.C. Circuit Court of Appeals.

“This is a final, appealable order,” Mehta noted in a directive filed separately from the decision.

The D.C. Circuit is considered by legal experts to be the second-most important court in the land, the first being the Supreme Court.

Chairman Harold Frazier of the Cheyenne River Sioux Tribe, far right, addresses a #NoDAPL rally outside of the federal courthouse in Washington, D.C., on August 24, 2016. The Cheyenne River Sioux Tribe is one of the lead plaintiffs in the CARES Act litigation. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Mehta also made clear that his role is far from over. Though the Department of Justice in court filings and during hearings took a very narrow view of the litigation -- going so far as to assert that Treasury's actions in connection with the $8 billion fund are not judicially reviewable -- his written decision is tied to the next stage in the dispute, or how the money is actually distributed.

"The agency has said that it will disclose how it made funding decisions; however, it has not committed to making that information public before disbursing the funds," Mehta observed.

During the final consultation on April 9, Daniel Kowalski, who serves as Counselor to Secretary Mnuchin, told participants to expect some sort of formula, methodology or explanation sometime in the following week. Two weeks later, the pledge has yet to be fulfilled, meaning tribes have no way to determine whether their needs are going to be met as COVID-19 cases continue to rise on their homelands.

In the ruling, Mehta noted that "once those dollars are committed, plaintiffs will have no path to recover them. Their injury therefore will be irreparable absent injunctive relief."

Never, in our worst nightmare, did we expect a deadly virus to come along, a #Coronavirus that is particularly lethal to members of the Greatest and Boomer generations. #COVID19 https://t.co/CuWqIJThhj
— indianz.com (@indianz) April 27, 2020

Leaders on the Navajo Nation, which is the largest reservation in the United States, have been responding to the crisis for nearly three months, well before President Trump declared the coronavirus a national emergency. As of Monday, 1,769 Navajo citizens have tested positive for COVID-19, the largest of any tribal community. The tribe has lost 59 people to the pandemic.

“This ruling is a big win for our Navajo Diné people," Navajo Nation Council Delegate Vince James said in a news release. "As Ní’hóókáá’ Diyin Dine’é, we each see the great challenge of getting essential supplies to our most remote elders and families."

"When the Navajo Nation Council fights for the fair share of the people’s money and resources, it’s because we know the faces, the names, the homesites and most importantly, the specific needs of our communities," James added.