CARES Act Lawsuit

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Posted: April 23, 2020

The Department of the Treasury in Washington, D.C. Photo: Joe Campbell

The Trump administration has determined that Alaska Native corporations can receive shares of the $8 billion coronavirus relief fund promised to tribal governments.

In a brief filed at a 5pm Eastern deadline, government attorneys said the Department of the Treasury finally resolved the question that has been on everyone’s minds since the controversy blew up two weeks ago.

“Up against a 30-day deadline to obligate $8 billion dollars among hundreds of Tribal governments, defendant has reasonably interpreted the term ‘Indian tribe,’ as it is defined in the Coronavirus Aid, Relief, and Economic Security Act, to include Alaska Native Corporations,” the 26-page document states.

The brief further agues that tribes have no right to challenge the determination just made by Treasury. Their only recourse, according to government attorneys, is to seek oversight through the department’s Office of Inspector General.

“The fact that Congress specified a means for enforcement of the statutory provisions—means which are Executive, not Judicial, in nature—is evidence that Congress did not intend judicial oversight of the manner in which the funds are distributed,” the Department of Justice wrote.

But even if the judge handling the CARES Act lawsuit wants to entertain the tribal objections, the Trump administration contends that Treasury’s interpretation is owed “deference.” The determination was made in “consultation” with the Department of the Interior, whose lead official on the $8 billion fund — Assistant Secretary for Indian Affairs Tara Sweeney — has come under fire for her role in the matter.

“Even if this court were to conclude that it has the ability to review defendant’s decision, after consultation with the Department of the Interior, about the proper manner in which to distribute the funds, Congress’s deferential grant of decision-making authority to those agencies with the expertise on the issues at hand warrants deference from this court,” the brief claims.

The tribal plaintiffs will now be able to respond to the brief. The two separate CARES Act cases have been consolidated, with 14 Indian nations opposed to the inclusion of Alaska Native corporations in the $8 billion fund.

Separate from the brief, Treasury released a document on April 23, confirming that Alaska Native corporations are eligible to participation. The determination is cited in the court filing.

“After consultation with the Department of the Interior, Treasury has concluded that Alaska Native regional and village corporations as defined in or established pursuant to the Alaska Native Claims Settlement Act are eligible to receive payments from the Fund in the amounts to be determined by the Secretary of the Treasury,” the document reads.

“In determining the appropriate allocation of payments to Tribal governments, Treasury intends to take steps to account for overlaps between Alaskan Native village membership and Alaska Native corporation shareholders or other beneficiaries,” it continues.

The language comes in reference to the “double-dipping” that tribes have alleged will occur once Alaska Native corporations are included. The court brief asserts that Treasury will take steps to prevent tribal “interests from being harmed” by multiple counts of populations in Alaska.

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