With the nation’s highest court stacked with even more conservative justices, tribes are once again paying close attention to a COVID-19 funding dispute they thought was over.

On September 25, the D.C. Circuit Court of Appeals barred the Trump administration from distributing shares of an $8 billion coronavirus relief fund to Alaska Native corporations. The unanimous decision was a victory for tribal governments, whose leaders viewed the case as a test of the federal government’s trust and treaty responsibilities.

“Federally-recognized tribes stood strong to oppose the actions of the Department of the Treasury in their attempt to undermine the first citizens of this country, but our voices were heard and Indigenous people prevailed,” said President Jonathan Nez of the Navajo Nation, one of the tribes involved in the litigation.

But with tribes facing a deadline to spend their shares of the COVID-19 relief fund by the end of the year, the matter is far from resolved. As Nez and advocates feared, the Alaska Native corporate entities and the Trump administration are asking the U.S. Supreme Court to overturn the D.C. Circuit’s ruling.

“If left to stand, the lower court’s decision would prove devastating for our rural communities, who, in the onset of winter in Alaska, are facing extreme difficulties combating the virus,” the ANCSA Regional Association and Alaska Native Village Corporation Association said in an October 22 statement explaining why they are appealing to the nation’s highest court.

Alaska Native corporations want the nation's highest court to rule on disputed shares of $8 billion in #COVID19 relief. Statement from the ANCSA Regional Association & the Alaska Native Village Corporation Association. #CARESAct #SupremeCourt #Coronavirushttps://t.co/GNX7tCnReT

— indianz.com (@indianz) October 23, 2020

Other than filing a written petition on behalf of the Department of the Treasury, the Trump administration hasn’t offered a public reason for its appeal. But tribal leaders feel the Supreme Court is already stacked against them, a situation that could worsen since the president himself has picked three out of the nine justices.

“Hopefully, Trump’s Supreme Court doesn’t cave into his wishes,” Chairman Darrell G. Seki, Sr. of the Red Lake Nation said in a video update on Monday in which he discussed the COVID-19 case.

Trump’s Supreme Court now includes Amy Coney Barrett, who was sworn into office last Tuesday. In a process that took just two weeks, Republicans rushed her nomination through the U.S. Senate, bringing the number of conservative-leaning justices to six, out of nine.

Like most of her colleagues, Barrett lacks direct experience in Indian law. In her three years as a judge on the 7th Circuit Court of Appeals, she never wrote a decision affecting tribes and their sovereign interests, leaving her views open to interpretation.

But with the COVID-19 petition before the Supreme Court, Barrett is being asked to weigh in on a matter that the Native corporations in Alaska are presenting as a matter of life and death.

“Because of the tribal enrollment structure in Alaska, the decision also means that tens of thousands of Alaska Natives will not receive any federal emergency assistance at all,” the ANCSA Regional Association and Alaska Native Village Corporation Association said in highlighting a portion of the D.C. Circuit’s ruling which warned that some Native people might fall through the cracks as the coronavirus continues to affect the first Americans at disproportionate rates.

The Alaska Native corporations filed their petition with the Supreme Court on October 21. The entities are being represented by Paul Clement, a prominent attorney who served as a top legal official during the Republican George W. Bush presidential administration.

The Department of Justice, on behalf of Secretary of the Treasury Steven Mnuchin, filed its appeal on October 26. The petition argues for the Alaska Native corporations, also known as ANCs, to be treated the same as tribal governments in order to receive shares of the $8 billion coronavirus relief fund.

“The decision below, if allowed to stand, will exclude ANCs from receiving hundreds of millions of dollars in coronavirus relief funds that Congress directed the Secretary of the Treasury to reserve for Indian tribes,” the brief reads. “Those funds are intended to offset to some extent the devastating and unexpected financial impact of the COVID-19 pandemic on Indian tribal institutions, including ANCs.”

Through the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, Congress authorized $150 billion in COVID-19 relief for tribal, state and local governments. Of the total amount, $8 billion was designated for tribes but Chairman Seki of the Red Lake Nation said the Trump administration wasn’t on board.

“The Trump administration objected to funds being set aside for tribes,” Seki said in his video on Monday.

Sen. Martha McSally (R-Arizona), who is seeking a full term in the Senate and is facing a strong challenge from Democratic candidate Mark Kelly, previously confirmed that she had to convince not just Republicans in the Senate, but the White House as well, to keep the tribal funds in the CARES Act.

Even though Treasury doesn’t have much of a history when it comes to tribal issues, the CARES Act placed Secretary Mnuchin in charge of distributing the $8 billion. But the law also carved out a role for the Department of the Interior, the federal agency with the most trust and treaty responsibilities in Indian Country.

Relying in part on Interior’s advice, Treasury determined that Alaska Native corporations are eligible for shares of the fund, according to the administrative record in the case. Tribes contend the deck was stacked against them because Assistant Secretary for Indian Affairs Tara Sweeney is a former high-ranking Alaska Native corporate executive. She also owns shares in the wealthiest Native corporation.

“Sweeney was one of the strongest advocates for sharing CARES Act funds with ANCs,” Chairman Seki asserted. “Because of the conflict of interest, Sweeney should have recused herself from any decision-making pertaining to distribution of CARES Act funds.”

Through a statement issued by Interior as the controversy was raging, Sweeney has denied any wrongdoing but has not explained why she chose not to recuse herself from a matter that financially benefits Arctic Slope Regional Corporation, where she was earning $1 million a year in salary prior to joining the Trump administration.

Quyanaqpak @NNVP_Lizer @NavajoCouncil #NNSpeakerDamon for a productive G2G discussion on @POTUS NA policy strategy #ForgottenNoMore . Thank you for the invitation! #Honored to sit in your chambers, learn about NN challenges and partnership opportunities. #AHÉHEE’! pic.twitter.com/mdmWogmB9K

— Tara Sweeney (@AS_IA45) October 28, 2020

Following repeated delays, tribes finally began seeing initial shares of COVID-19 relief on May 5, on the same day President Trump held a face-to-face meeting in Arizona with Vice President Myron Lizer of the Navajo Nation and Governor Stephen Roe Lewis of the Gila River Indian Community. A prominent White House official, who has since left the administration, later confirmed that the release of the money was timed with the visit.

Still, some Republicans in Congress — most notably Sen. Lisa Murkowski (R-Alaska) — have tried to blame the delays on the CARES Act litigation. Government attorneys, however, confirmed in court filings that Treasury had trouble coming up with an allocation method for the funds, independent of the ANC issue.

“There’s a lack of trust that tribal leaders have seen between Treasury and tribes,” Lewis said during a COVID-19 panel hosted by Harvard University in September.

A second COVID-19 payment was made in early June but Treasury unilaterally withheld money from every tribal government. A federal judge finally forced the department to release the funds as Congress intended.

Throughout the drama, Treasury has been setting aside money for the Alaska Native corporations. According to representations made in court by government attorneys and an examination of the Daily Treasury Statement, some $534 million is being held in Washington, D.C., as the dispute plays out before the Supreme Court.

The tribes that brought the CARES Act litigation have until November 25 to respond to the petitions filed by the ANCs and by the Trump administration. The corporations and Treasury will then be able to file replies to the tribal briefs.

Once briefing has been completed, the Supreme Court is expected to consider the petitions in Steven T. Mnuchin, Secretary of the Treasury v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Association, Inc. v. Confederated Tribes of the Chehalis Reservation during one of their upcoming conferences. It takes a vote of at least four justices for a case to be accepted for argument.

Historically, the vast majority of petitions — including those affecting tribal interests — are rejected by the high court.

Still, the appeal poses some significant timing issues for tribes, whose governments have been spending their CARES Act shares on a wide variety of programs. The Cherokee Nation, for example, recently launched a $9 million program to help citizens who are experiencing disabilities.

“This monetary aid, open to all Cherokees on the tribal reservation regardless of age or income, can help individuals and families get through this difficult health crisis,” Chief Chuck Hoskin, Jr. said in an opinion published on Indianz.Com.

The Cherokee Nation was part of a separate lawsuit that forced Treasury to distribute the CARES Act funds in a more timely manner. The tribe, like many others, has been worried about the fast-approaching December 30 deadline to spend their shares of COVID-19 relief.

Led by Rep. Tom O’Halleran (D-Arizona), a bipartisan group of lawmakers is pushing legislation to extend the deadline. If enacted into law, H.R.7557 would give tribes until December 30, 2022, to spend the money.

“We look forward to continuing our partnership with Congressman O’Halleran and the rest of our congressional delegation to complete CARES Act projects, to advocate for the extension of the December 30 CARES Act deadline, and to work with our federal partners to move forward with infrastructure projects and initiatives,” President Nez of the Navajo Nation said after hosting the Democratic lawmaker on the reservation last week.

The Supreme Court opened its October 2020 term on October 5. So far, no Indian law cases have been accepted for argument but tribes and their advocate are paying attention to a handful of petitions in matters affecting sovereignty and jurisdiction over their lands.

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

Tribes and Native corporations still at odds over disputed COVID-19 funding (October 1, 2020)
Native Sun News Today: Tribal nations win ruling in COVID-19 funding dispute (September 30, 2020)
Appeals court sides with tribes in COVID-19 funding dispute (September 25, 2020)
Spreadsheet: Coronavirus Relief Fund allocations for tribal governments (September 25, 2020)
Coronavirus Relief Fund allocations for tribal governments (September 24, 2020)
Cronkite News: Navajo Nation weighs spending plans for COVID-19 funds (September 21, 2020)
‘All out war’: Republican lawmaker slams National Congress of American Indians (September 18, 2020)
Chuck Hoskin: Cherokee Nation invests CARES Act money in community (September 14, 2020)
Appeals court hears arguments in COVID-19 funding dispute (September 11, 2020)