Alaska Native Village Corporation Assoc. Petitions SCOTUS for COVID-19 Funding

The Alaska Native Village Corporation Association Inc. and others filed a petition for a writ of certiorari before the Supreme Court of the United States in a case against Treasury Secretary Steven Mnuchin, alleging that the government has not disbursed Title V funds from the Coronavirus Aid, Relief and Economic Security (CARES) Act, which the petitioners believe they are entitled to under the Alaska Native Claims Settlement Act (ANCSA).

In 1971, Congress passed the ANCSA to transfer land in Alaska to Alaska Natives, which “established new Native entities to manage Native lands, administer settlement funds and act for the benefit of Alaska’s Natives,” called Alaska Native Corporations (ANCs), according to the petition. The Indian Self-Determination and Education Assistance Act (ISDEAA) was enacted in 1975 to give responsibility to Native tribes to establish their own programs that normally would be the responsibility of the federal government, giving tribes the ability to assume “full funding and control over federal Indian programs” through agreements called compacts, according to the petition.

There was ambiguity surrounding whether ANCs were eligible to enter in ISDEAA compacts until 1974 when Congress amended the ISDEAA’s definition of “Indian tribes” to expressly include “regional and village corporation(s) as defined in or established pursuant to the Alaska Native Claims Settlement Act,” or ANCs, affirming that, in this definition, ANCs are eligible to enter into ISDEAA compacts.

The CARES Act, in response to the COVID-19 pandemic, appropriated $150 billion for states, tribal governments and local governments for expenditures related to public health response, with $8 billion reserved for tribal governments. Under Title V of the CARES Act, the treasury secretary has the authority to “determine” the “manner” of and “ensure” the distribution of the allocated funds to tribal governments. 

Congress invoked the ISDEAA’s definitions of “Indian tribes” and “Tribal governments” when deciding how to disburse the funds, thus including ANCs as eligible to receive disbursals. However, before the Treasury Secretary could distribute allocated funds to any ANCs, three Federally Recognized Tribes (FRTs) sued the treasury secretary, challenging ANCs’ eligibility for receiving the funds.

The district court concluded that ANCs fall under the ISDEAA definition of “Indian tribes,” but it still blocked the disbursal of funds to the ANCs while the case was appealed to D.C. Circuit Court. On appeal, the D.C. Circuit reversed; the petition said the D.C. Circuit’s reasoning has “the net effect of reading ANCs out of the ISDEAA definition altogether. According to the petition, “(t)he court did not address post-1975 developments that made clear that Congress has repeatedly used the ISDEAA definition with the understanding, often textually expressed, that it included ANCs even after ANCs’ ineligibility for formal List Act recognition was established.”

According to the petition, Judge Karen Henderson said it is “indisputable” that ANCs’ services “have been made only more vital due to the pandemic” and could “think of no reason” Congress would make the decision to exclude ANCs from the CARES Act funds — while still joining her colleagues “in full” in the decision to block the funds.

The petitioners argued that not only is the court’s decision contradictory to the longstanding definition of tribes “that recurs in dozens of federal statutes,” but it “profoundly affects the day-to-day life and well-being of Alaska Natives” and creates an “untenable” situation where ANCs are still eligible in federal programs in their home circuit but ineligible for the same programs from where the funds for those programs actually come: the D.C. Circuit.

Also argued by the petitioners is that the Circuit Court negated Congress’ explicit and express inclusion of ANCs in ISDEAA’s “Indian tribe” definition “based on an implication” of the word “recognized,” invoking the federal recognition process for tribes — which excludes ANCs — instead of the ISDEAA’s definition. The petitioners argued that “if, in 1975, Congress had wanted to limit ISDEAA to FRTs, it would have simply said so.” The petitioners noted that “there are tens of thousands of Alaska Natives that have an ANC-affiliation but no FRT-affiliation,” but “(t)hat does not make them any less an Alaska Native or any less 17 eligible for special federal programs. It simply reflects the lack of reservations in Alaska and Congress’ distinctive approach in ANCSA.”

The petitioners are represented by Kirkland & Ellis LLP.