A federal judge on Monday ordered U.S. Treasury Secretary Steve Mnuchin to halt distribution of COVID-19 relief funds to Alaska Native corporations but stopped short of telling him to distribute all the money to tribes.
U.S. District Judge Amit Mehta's decision opens the door for the Treasury Department to begin sending checks to tribes. But it leaves open the question of whether the secretary can award some money to Alaska Native corporations.
The Coronavirus Aid, Relief, and Economic Security Act set aside $8 billion for tribes. The departments of Interior and Treasury determined Alaska Native corporations were eligible to receive a share.
Tribes last week filed suit seeking an injunction and temporary restraining order on distribution of the $8 billion, and opposing any funds going to the corporations. The tribes argue the relief funding was intended only for the 574 tribes that have a government-to-government relationship with the U.S. — not Alaska Native businesses. Some 20 tribes joined the suit.
The judge said it was not necessarily within his purview to decide how much money should be disbursed but, based on the language in the act, it was within his purview to decide who should receive funds.
"Because the court finds that Plaintiffs have made a clear showing that they are likely to suffer irreparable harm in the absence of preliminary relief, that they are likely to succeed on the merits, and the balance of the equities and the public interest favor an injunction, the court grants Plaintiffs’ motions — but only in part," Mehta wrote.
He said he would block the Treasury Department from disbursing the money to Alaska Native corporations — but he would not, at this time, direct the agency to "disburse the entire $8 billion in emergency relief to Plaintiffs and other federally recognized tribes."
Instead, he left open the option for the Treasury Department to appeal, with funds set aside for Alaska Native corporations in case it prevails. The federal government has not disclosed how it will determine who gets what.
Attorney Nikki Ducheneaux, Cheyenne River Sioux, represented several tribes in the suit. She posted on Facebook: “We did it!"
"We defeated Treasury Secretary Mnuchin in federal court today with a ruling that the government cannot give emergency COVID funds meant for real Tribal Governments to rich profit Alaska Native Corporations," she wrote. "And don’t forget, these hostile Indians were led by two Native women. If you wanna fight hard, call an Indian woman.”
Ducheneaux was joined in representing tribes in the suit by Native American Rights Fund attorney Natalie Landreth, Chickasaw.
Navajo Nation President Jonathan Nez also said he was pleased with the ruling.
"Federally recognized tribes stood together to oppose the actions of the Department of the Treasury in another attempt to undermine the first citizens of this country, but our voices were heard, and Indigenous people prevailed today," he said.
Two organizations representing corporations — the ANCSA Regional Association and Alaska Native Village Corporation Association — meanwhile, released a joint statement saying they were disappointed.
“This will mean a delay in necessary resources and economic assistance for Alaska Native people in our communities and our state," they wrote. "However, Alaska Native people have a history of resilience and strength. ... We look forward to a ruling that will allow us to receive additional, much needed aid for our people and communities."
The Treasury Department has maintained the corporations are eligible for a portion of the funding.
It said in a court filing last week that Congress “expressly chose to include” Alaska Native corporations by incorporating in its relief funding bill a definition of “Indian tribes” from a 1975 law that allowed federal agencies to enter into contracts with and make grants to tribes.
Corporations have said there is no ambiguity in the relief act: Alaska Native regional and village corporations are “tribes” under the law.
Six tribes initially filed the request for an injunction: the Confederated Tribes of the Chehalis Reservation and the Tulalip Tribes in Washington state; the Houlton Band of Maliseet Indians, in Maine; and the Akiak Native Community, Asa’carsarmiut Tribe, and Aleut Community of St. Paul Island, in Alaska.
Several other tribes joined the suit Tuesday, including the Navajo Nation in Arizona, New Mexico and Utah; Quinault Indian Nation in Washington state; the Pueblo of Picuris in New Mexico; the San Carlos Apache Tribe in Arizona; and Elk Valley Rancheria in California. Also included are the Cheyenne River Sioux Tribe, Oglala Sioux Tribe and the Rosebud Sioux Tribe.
President Amos Philemonoff of the Aleut Community of St. Paul Island called Mehta's ruling "more than fair."
"We are happy the Judge did not order full disbursement of the funds at this time, as it was never our intention to exclude any Alaska Native entity that may be providing governmental services directly to an Alaska Native community on behalf of a tribe," he said.
In their injunction motion Monday, the tribes called for quick action from Mehta, saying once the funding is distributed, “it will likely be impossible for the tribes to recover any of the diverted funds and to use them, as Congress plainly directed, to meet the critical needs of their communities, which have been besieged by the coronavirus pandemic.”
Alaska Native corporations, for their part, have lost revenues due to the pandemic. And some have donated as much as $1 million for the benefit of their shareholders and their affected communities. The losses and expenditures may well affect the amount of dividends paid to the Native corporations’ shareholders.
The Native American Rights Fund, a nonprofit that works to defend the rights of Native American tribes, organizations and individuals, also praised Monday's ruling.
"We are pleased with this result as it will direct money to tribal governments who are incurring dramatic expenses in an effort to protect their citizens.”
Joaqlin Estus, Tlingit, is a national correspondent for Indian Country Today, and a long-time Alaska journalist.
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