ICYMI: U.S. Supreme Court Grants Review in Alaska Native Corporations CARES Act Cases
Also Grants Alaska Congressional Delegation Amicus Brief in Support of Alaska Native Corporations
The U.S. Supreme Court granted certiorari to petitions from Treasury Secretary Steven Mnuchin and several Alaska Native Corporations (ANCs) challenging the D.C. Circuit Court of Appeals’ decision that determined ANCs are not eligible for the Coronavirus Relief Fund (CRF) tribal set-aside within Title V of the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act. The motion from the Alaska Delegation to participate was also granted. In November, 2019, U.S. Senators Lisa Murkowski and Dan Sullivan and U.S. Congressman Don Young, all R-Alaska, filed an amicus curiae brief urging the U.S. Supreme Court to grant the petition for a writ of certiorari in support of ANC eligibility for tribal assistance appropriated by the CARES Act. The amicus brief warns that the indigenous peoples of Alaska will suffer significant negative consequences as a result of the D.C. Circuit Court of Appeals’ September 25, 2020 decision, which held that ANCs are ineligible for the CARES Act CRF tribal set-aside. The D.C. Circuit Court’s decision destabilizes agency and legislative practice in place for over 40 years as well as systems in place that deliver programs and services to Alaska Natives across the state. Following the announcement that the U.S. Supreme Court granted certiorari, the Alaska Congressional Delegation made the following statement:
“We worked hard to secure funding within the CARES Act specifically to address the needs of Alaska Native communities. That funding was set aside to bring immediate emergency relief to indigenous communities, regardless of where that relief comes from. It is unacceptable that COVID-19 aid continues to be withheld from a subset of Alaska Native people simply because of the unique circumstances that exist in Alaska. Beyond the CARES Act, this decision counteracts over 45 years of precedent and federal Indian law. The decision made by the D.C. Circuit Court of Appeals should be reversed,” said the Delegation. “We are encouraged that the Supreme Court has agreed to hear the case. We are hopeful they will join us in the effort to protect federal Indian law and provide critical relief for all Alaska Native and American Indian peoples in our great state.”
Excerpts from the Amicus Brief:
- “To undermine programs during a global pandemic is a failure to understand how Native entities work together in Alaska and calls for review by this Court.”
- “As Members of Congress who represent the only indigenous population that has been singled out for this disparate treatment, we have a unique interest in participating in this briefing and will be useful for this Court in interpreting the laws we have consistently passed for nearly half a century.”
- “The DC Circuit's decision, if allowed to stand, will have a widespread and deleterious effect on numerous agencies' precedents and practice, and calls into question laws that have been relied upon, with good reason, by the indigenous people of Alaska and this Nation, for nearly half a century.”
- “The DC Circuit Court's decision stands in opposition to: (1) our long established practice of employing the ISDEAA definition when we want to include the entire indigenous population of our state, regardless of tribal affiliation; (2) strong federal agency practice in place for over 40 years, which employs the definition as written and reaffirmed by Congress; (3) the long-established precedent of the Ninth Circuit; and (4) the systems in Alaska that are working to receive and deliver programs and services to the indigenous people of our state.”
- “These systems are unique because they rely on both ANCs and Federally Recognized Tribes’ eligibility as Indian tribes to receive and deliver services to the indigenous people of Alaska.”
- “The DC Circuit's decision singles out the indigenous people of Alaska, the constituency we represent, and forces them to try to seek redress from the State rather than the federal government, which owes them a special duty under the trust relationship as Indians. Not only is that incorrect for legal and historic reasons, but it is also not the reality of how services are received or delivered in Alaska.”
- “Additionally, due to the sweeping nature of the DC Circuit's decision, the full impact of the injury is unknown, but may prove fatal to more than one system of delivering services to the Indian population of Alaska.”
- “While a global pandemic spreads to the remote villages of Alaska, the system that delivers health care has been called into question and critical funding withheld.”
- “Currently, COVID cases in the remote villages hit 20 percent and little safeguards within the communities. Over 30 villages lack basic sanitation infrastructure; there is no running water for all the residents, no flush toilets— the lack of which only enables the pandemic to spread. According to the U.S. Census Bureau's 2019 survey, 15.8% of Alaska's overall population is Alaska Native and American Indian alone. With the pandemic just reaching the villages, Alaska Native and American Indian people already account for 32.3% of total deaths in Alaska. This is occurring while needed relief funds are being withheld.”
- On March 27, the CARES Act was signed into law, including an $8 billion set-aside for tribal governments.
- On April 14, the Alaska Congressional Delegation wrote to Treasury Secretary Steven Mnuchin and Interior Secretary David Bernhardt detailing the unique legal framework and circumstances for tribal entities in Alaska. The letter provided a historical background on Alaska regional corporations, which are made eligible for CARES Act assistance because of the definition of “Indian tribe” used in the bill.
- In April, several tribes filed lawsuits to prevent CARES Act funds from being distributed to ANCs.
- On April 23, the delegation penned an op-ed in the Anchorage Daily News to correct the mischaracterizations about ANCs and explain why the entities are eligible for CARES Act funds.
- On June 26, U.S. District Judge Amit Mehta ruled ANCs are eligible for the aid. Judge Mehta based his decision on the definition of “Indian tribe” provided by the 1975 Indian Self-Determination and Education Assistance Act and used in the CARES Act, which included ANCs.
- On September 25, the U.S. Court of Appeals for the D.C. Circuit overturned the June 26 ruling and determined ANCs are ineligible for tribal assistance appropriated by the CARES Act.