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Alaskan Native Corporations Barred From Covid Relief Funds (1)

Sept. 25, 2020, 9:34 PM; Updated: Sept. 28, 2020, 12:51 PM

Alaskan Native Corporations aren’t eligible for pandemic-related federal funds because they don’t count as “tribes” under the Coronavirus Aid, Relief, and Economic Security Act, the D.C. Circuit ruled Friday.

The ANCs were established to receive land and money for Alaska Natives who settled their aboriginal land claims with the federal government.

But they aren’t “Indian Tribes” under the CARES Act, and consequently can’t receive part of the $8 billion in pandemic aid allocated to tribal governments, the U.S. Court of Appeals for the District of Columbia said.

A Washington, D.C., federal district court ruled in June that ANCs were eligible for CARES funds following a lawsuit filed by 18 tribes. The Indian Self-Determination and Education Assistance Act specifically includes ANCs in its definition of “Indian Tribes,” and the lower court found the CARES Act covers ANCs under this definition.

But the D.C. Circuit said ISDA requires ANCs to be “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians” to qualify as a tribe.

The circuit court said “recognition” is “well-established” in American Indian law to refer to a specific political act confirming the tribe’s existence as a distinct political entity and formalizing its relationship with the U.S.

“Because no ANC has been federally ‘recognized’ as an Indian tribe, as the recognition clause requires, no ANC satisfies the ISDA definition,” the court said. The U.S. recognized Alaskan Natives’ traditional villages instead of ANCs in 1993.

Judge Gregory G. Katsas wrote the opinion, joined by Judges Karen LeCraft Henderson and Patricia A. Millett.

Judge Henderson concurred, but called the decision “an unfortunate and unintended consequence of high-stakes, time-sensitive legislative drafting.”

She said she could “think of no reason” why Congress would exclude ANCs—which provide healthcare and other services that have “been made only more vital due to the pandemic"—from CARES Act funding.

“Nonetheless it is not this court’s job to soften Congress’ chosen words whenever we believe those words lead to a harsh result,” Henderson said. “And a harsh result it is.”

“This ruling is a devastating blow to Alaska Native communities facing an alarming increase in COVID-19,” the ANCSA Regional Association and the Alaska Native Village Corporation Association, two parties intervening in the case, said in a Friday statement. “Both CDC and Alaska data show that Alaska Native people suffer from a disproportionate number of infections, hospitalizations and deaths. We fear this deeply flawed ruling will only make things worse by keeping critical health services and economic relief from reaching our remote communities and villages who are most at risk.”

Kanji & Katzen PLLC, Rothstein Donatelli LLP, Big Fire Law & Policy Group, the Native American Rights Fund, Patterson Earnhart Real Bird & Wilson LLP, and others represented the plaintiff tribes. Holland & Hart LLP, Crowell & Moring LLP, and Kirkland & Ellis LLP represented the ANCs.

The case is Confederated Tribes v. Mnuchin, D.C. Cir., No. 20-5204, 9/25/20.

(Updated Sept. 25 story with statement from intervenors.)

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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