• SPREADSHEET: Coronavirus Relief Fund allocations for tribal governments

Alaska Native corporations (ANCs) are not entitled to shares of the $8 billion coronavirus relief fund, a federal appeals court ruled on Friday.

In a unanimous decision, a three-judge panel of the D.C. Circuit Court of Appeals said the for-profit corporations are not “recognized” tribes. As such, they do not qualify for the funds provided by Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act.

“We hold that Alaska Native corporations are not eligible for funding under Title V of the CARES Act,” Judge Gregory Katsas, who was nominated to the bench by President Donald Trump, wrote for the court.

The 24-page ruling, accompanied by a two-page concurrence, comes just two weeks after the D.C. Circuit heard arguments in the closely-watched case. It marks a major victory for tribal nations in one of the most bitter Indian policy and legal disputes in recent history.

“The opinion was correctly and artfully written,” attorney Nicole Ducheneaux, who represented a group of tribes in the dispute, told Indianz.Com.

“No one has ever understood ANCs to recognized Indian tribes under any definition of that term,” said Ducheneaux a citizen of the Cheyenne River Sioux Tribe, one of the plaintiffs. “They are for-profit corporations, which Congress did not intend to share in the lifesaving appropriation for COVID-affected governments.”

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But the dispute might not yet be over. The ANCs that intervened in the case can pursue further appeals in the case in hopes of claiming some $534 million that has been set aside for them by the Department of the Treasury.

“We’re in a situation where the tribes have the money that was allocated but the Alaska Native corporations still do not,” Nathan Yaa Ndakin Yeil McCowan, the chair of the Alaska Native Village Corporation Association, said during COVID-19 forum hosted by Harvard University last Friday.

The Trump administration could also keep pushing. So far, Treasury has stood by the ANCs, believing they are just as entitled to the coronavirus relief fund as tribal governments.

The most obvious route for an appeal is to ask the D.C. Circuit to rehear the case en banc, meaning it would be heard by a larger panel of judges. But it’s also possible for the Trump administration, or the ANCs, to take the matter directly to the U.S. Supreme Court, whose members paid tributes to the late Justice Ruth Bader Ginsburg in a ceremony at the U.S. Capitol on Friday.

Ginsburg passed away on September 18 due to complications of metastatic pancreas cancer, the court announced last week. She was 87 years old.

Ginsburg’s death leaves the nation’s highest court with only eight members, barely a week before the October 2020 term is set to begin. The justices can continue to hear and decide cases, with any 4-4 ties resulting in a lower ruling being upheld.

Such a scenario would not be beneficial for the ANCs, or for Secretary of the Treasury Steve Mnuchin, the defendant in the case. A tie would merely reaffirm the D.C. Circuit’s current ruling in favor of tribal nations.

Besides the legal uncertainty, a deadline is quickly approaching for recipients of the $8 billion coronavirus relief fund. According to the CARES Act, all money must be spent by December 31, or it has to be returned to the Treasury.

Should the ANCs or the Trump administration continue to pursue the case, it would prolong an eventual decision, making it more difficult for any recipients to spend the money before the deadline. Tribes are supporting legislation in the 116th Congress to extend the deadline but no bills have advanced at this point.

But in anticipation of further legal action, the D.C. Circuit on Friday held off on issuing the mandate in the case pending any requests for a rehearing.

Under the CARES Act, Treasury was required to make payments to tribes within 30 days. The department missed the deadline because it was unable to come up with an allocation methodology on time, government attorneys repeatedly said in court.

Eventually, Treasury made COVID-19 relief fund payments to tribal governments in multiple installments. The first was initiated on May 5, 2020, with each tribe receiving an amount that was tied to their Indian housing population.

A senior aide at the White House later disclosed that the first payment was tied to President Donald Trump’s visit to Arizona on that same day, when he participated in a roundtable with a small group of tribal leaders.

The second payment started rolling out on June 12 but it was only a partial one, as Treasury unilaterally withheld funds from tribes in response to a completely different lawsuit, separate from the ANC issue. After being ordered to release all the money by a federal judge, the department initiated the third and final payment on June 17.

Not all tribes were paid at the same time, though. According to representations made by government attorneys in federal court, Treasury had trouble sending payments to Indian nations in Alaska, for example.

Information from usaspending.gov, a government-run website, in fact shows a number of tribes in the 49th state didn’t get their first payment until days, or even weeks, later. In one instance, an Indian nation in Alaska didn’t receive the first payment until May 28.

https://t.co/0yYFAWzrcJ is publishing the payments made to tribes from the $8 billion coronavirus relief fund. How much did your Indian nation receive? #COVID19 #Coronavirus #CoronavirusReliefFund #CARESAct https://t.co/29OYlUMms2

— indianz.com (@indianz) September 25, 2020

The second and third payments appear to be have been distributed in a more consistent manner, according to usaspending.gov. These payments were based on a formula that Treasury has not disclosed but were presumably linked to expenditures and employment data submitted by tribes.

Usaspending.gov was recently updated with COVID-19 spending data. As such, it includes coronavirus relief fund payments made to states and local governments, as well as to U.S. territories.

Though the CARES Act, Congress allocated $150 billion in COVID-19 relief for tribes, states, local and territorial governments. The tribal set-aside was $8 billion.

The law further directed Treasury to disburse the money “not later than 30 days” after its enactment, which was on March 27.

In the end, a ruling that favored the ANCs today could have set a dangerous precedent for Indian Country moving forward as stated in the opinion: pic.twitter.com/gPp0WMShwO

— Jenni Monet (@jennimonet) September 25, 2020

Indianz.Com calculated that $534 million is being held for Alaska Native corporations based on representations made by government attorneys in court. The figure appears to be further confirmed by the Daily Treasury Statement, which shows $534 million remaining in the coronavirus relief fund.

Should the legal dispute end with the D.C. Circuit’s ruling on Friday, the $534 million could be distributed to tribal governments, many of whom complained of underpayments due to Treasury’s decision to rely on Indian housing data for the first payment back in May. Many tribes instead wanted payments tied to their citizenship base, as originally anticipated before the Trump administration changed course.

“The Confederated Tribes plaintiffs appreciate the court’s thorough, careful exposition of the statutory and historical factors making it clear that Alaska Native corporations are not Indian tribes, a term restricted to sovereign tribes enjoying a government-to-government relationship with the United States,” attorney Riyaz Kanji, who argued Confederated Tribes of the Chehalis Reservation v. Mnuchin before the D.C. Circuit on September 11, told Indianz.Com.

Confederated Tribes of the Chehalis Reservation v. Steven Mnuchin (September 25, 2020)