Supreme Court sides with ANCs on CARES funds

Alaska Native corporations are set to receive roughly $450 million in COVID-19 relief grants following a June 25 Supreme Court ruling but leaders of the companies have stressed none of it will end up in corporate coffers.

The U.S. Supreme Court decided in a 6-3 split opinion that the nearly 200 Alaska Native regional and village corporations, or collectively ANCs, are eligible for a portion of the $8 billion set aside for Tribes nationwide to use to mitigate the direct impacts of COVID-19 in the $2.2 trillion CARES Act passed by Congress shortly after the domestic onset of the pandemic in March 2020.

The Treasury Department under former President Donald Trump first said the ANCs would be allocated $500 million, which was later revised down to approximately $450 million.

The justices that signed onto the majority opinion written by Justice Sonya Sotomayor ultimately agreed with what the members of the Alaska congressional delegation had emphasized from the start: ANCs were meant to be eligible for the Tribal funding in the CARES Act.

Rep. Don Young and Sens. Lisa Murkowski and Dan Sullivan said in a joint statement following the release of the court opinion that it is a major victory for Alaska Natives who, under the unique structure largely established by the Alaska Native Claims Settlement Act, receive services through several types of Tribal governments and organizations along with the ANCs.

“The U.S. Supreme Court affirmed what we knew all along — that when Congress used the definition of ‘Indian tribe’ from the Indian Self-Determination and Education Assistance Act in the CARES Act, it absolutely made Alaska Native corporations eligible for those coronavirus relief funds,” the delegation said collectively.

“We knew this because we wrote this language in the CARES Act. In addition to equitable pandemic relief, this decision ensures Alaska Natives will continue to benefit from the unique but effective delivery of health care, housing, and many other public services authorized under numerous statutes using the ISDA’s definition of an Indian tribe, which the (prior) D.C. Circuit ruling threatened to destabilize.”

A nationwide coalition of Tribes, which eventually included several of Alaska’s 229 federally recognized Tribes, sued the Treasury Department in April 2020 when it became clear the agency intended to make a portion of the CARES Act Tribal appropriation available to the ANCs.

At the heart of the matter was a Congress-specific definition of an Indian Tribe, as referenced by the Alaska delegation. The brief clauses in Title VI of the CARES Act that allocate the $8 billion direct Treasury officials to disperse the money to “tribal governments” within 30 days after the bill was signed.

The definition of a Tribal government used in the CARES Act is pulled directly from the 1975 Indian Self-Determination and Education Assistance Act, which states that Indian Tribes include any “tribe, band, nation, or other organized group or community, including any Alaska Native village or regional corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”

Tribal attorneys argued that despite the explicit inclusion of ANCs in the Indian Self-Determination and Education Assistance Act definition, the corporations should not be eligible for the CARES money because they do not qualify for all of the “special programs and services that official, federally recognized tribes do; for one, they are for-profit enterprises and not sovereign governments.

D.C. District Court Judge Amit Mehta issued a preliminary injunction early in the case preventing Treasury from dispersing the $450 million to the ANCs, but eventually sided with the delegation and the ANCs in a June 2020 ruling on the case.

The D.C. Circuit Court of Appeals reversed Mehta’s ruling, instead concluding in its ruling that the ISDA definition of an Indian Tribe only includes ANCs “only if ‘recognized’ as such.”

An appeal by the corporations led to the Supreme Court decision in which Sotomayor wrote that the ISDA definition of an Indian Tribe does not specify the particular programs and services an organization must be eligible for to satisfy the “recognized-as-eligible clause.”

“Given that ANCSA is the only statute the ‘Indian Tribe’ definition mentions by name, the best reading of the definition is that being eligible for ANCSA’s benefits by itself satisfies the recognized-as-eligible clause,” Sotomayor wrote in the majority opinion.

Ethan Tyler, spokesman CIRI Inc. said the Southcentral regional corporation does not have detailed plans yet for its portion of the $450 million, but highlighted that the funds must be used to counter the direct public impacts of COVID-19.

“Ultimately, our plan is to get (the money) to where it’s needed most and we’ll be working with our partners and Tribal affiliates to serve our shareholders and descendents,” Tyler said.

Sealaska Legal and Policy Vice President Jaeleen Kookesh insisted the case simply reinforces the specific qualifications Alaska Natives have lived under for decades.

“This isn’t creating anything new,” Kookesh said in an interview.

She also serves on the legal working group for the ANCSA Regional Association.

Attorneys representing the Alaska Tribes did not respond to questions in time for this story.

ANCs have long been eligible for other programs aimed at addressing Tribal issues ranging from cultural preservation to energy development and the CARES Act just added COVID-19 to that list, according to Kookesh.

“We’re not now sovereigns; we’re not now federally recognized Tribes but we continue to be eligible as Tribes by specific statutes,” she said.

“Our Alaska Native people are served through tribes, Alaska Native nonprofit organizations or Alaska Native corporations and this case just allows distribution of the funding through these types of organizations.”

Treasury representatives did not respond to questions about how the $450 million will be allocated amongst the 12 regional corporations and 174 active village corporations, but Kookesh said meetings and training sessions with Treasury officials are scheduled to help ANC accountants document their CARES expenditures for potential audits down the road.

She stressed the money will not be used to provide boosted shareholder dividends, employee bonuses or anything of the like.

Sealaska leaders are examining ways to reach Tribal members living outside of the areas where existing services are offered by Tribes or ANCs with the CARES money, among other uses for it, according to Kookesh.

Otherwise, it is likely much of the money will be sent to Tribes or nonprofits that have already established eligible programs and could use additional funding.

“Or, if they have a program that works, maybe we can borrow that structure and integrate it into our organization,” Kookesh said.

Elwood Brehmer can be reached at [email protected].

06/30/2021 - 9:54am