Indian Country Today
The debate over whether Alaska Native corporations should receive a portion of the CARES Act’s $8 billion tribal allocation has reached the highest court in the land.
The U.S. Supreme Court will hear oral arguments Monday from Alaska Native corporations, Alaskan delegation, and tribal organizations who support the funding, as well as the six tribes, five states, and one member of Congress who are against it.
The hearing is the culmination of a year-long battle that has divided some in Indian Country and called into question long-standing legal precedents.
The litigation began in April 2020 when six tribes sued then-Treasury Secretary Steven Mnuchin for including ANCs in the tribal distribution of CARES Act funding. In June, U.S. District Judge Amit Mehta ruled that ANCs were eligible to receive their portion of the COVID relief package. On Sept. 25, the D.C. Circuit Court of Appeals reversed the decision, stating that Alaska Native village and regional corporations were not eligible to receive the funds.
If the decision stands, the Alaska Native corporations would miss out on roughly $720 million that were intended to help Alaska Native people combat the pandemic, according to the Treasury Department.
“Affirming the decision below would thus leave thousands of Alaska Natives out in the cold with nowhere to turn,” reads the opening statement of the ANCs’ friend-of-the-court brief.
A statement from the ANCSA Regional Association and the Alaska Native Village Corporation Association agreed.
“We hold strong our belief that Alaska Native people should not be punished for the unique tribal system that Congress established for the state 50 years ago,” it states.
On the other side, about a dozen tribes say the relief package should only go to the 574 tribes that have a government-to-government relationship with the United States.
“Federally recognized tribes have undertaken extraordinary efforts to ensure continuity of government operations, maintain essential services and resources, and otherwise provide for the health and welfare of their communities throughout the COVID-19 crisis,” said the National Congress of American Indians in its brief to the court.
“This Court should ensure that the remaining Title V funds are reserved to support such efforts, not diverted to unrecognized entities with no such governmental responsibilities.”
In the short term, the case's outcome would have immediate impacts on COVID relief efforts. If the ANCs were to receive the proposed funding, it would go toward services that help Alaskan Indigenous communities respond and recover from the pandemic. Up until now, the ANCs have been providing these vital services without additional financial support from the federal government.
“If they were to get CARES Act funding, there's a whole host of mental health needs, that they are ready to stand up -- there's new clinics that they are ready to open,” said Stephanie Aicher, in-house counsel for Cook Inlet Regional, Inc., or CIRI, one of the 12 Alaska Native corporations.
So far, the ANCs’ combined efforts have included an array of services, such as community response kits, elder-care packages, food insecurity support, temporary housing for those who could not return home due to travel restrictions, statewide meetings for local leaders, and over $1 million in donations to tribes and regional health organizations.
In one instance, an ANC had to step in when villages in Alaska’s southeast were left without food after the region’s ferry stopped running. With no roads between villages, the ANC took the initiative to help organize emergency flights and food supplies — a unique pandemic situation that highlights Alaska’s distinctive landscape.
But perhaps most notably, says Aicher, the corporations have the infrastructure and ability to pull off large-scale organizing, while individual tribes and villages in the region might not. The long-established distribution channels, network, and outreach capacity have allowed ANCs to act fast and efficiently, ensuring the 15.8 percent of Alaska's population who are Alaska Native and American Indian were served during a time when their communities were especially impacted.
“That point just can't be underscored enough,” she said. “If ANCs are taken out of the equation, there are no organizations that could fill this void -- state, federal, or tribal. There just aren’t.”
Additionally, Alaska Native corporations’ involvement with COVID relief efforts covers Alaska Natives who aren’t enrolled in villages, which is especially common in the state’s largest city, Anchorage, which CIRI oversees. In both 1971 and 2020, tens of thousands of Alaska Natives were eligible for special-federal-Indian programs, but not affiliated with any federally recognized tribe.
This is due to a mixture of historical influences and present day realities. In 1971, ANCSA’s passage required the Interior secretary to enroll all eligible Alaska Natives in a regional ANC, instead of villages or tribes. Today, there are countless Alaska Natives who grew up in Anchorage instead of their family’s original village, meaning many aren’t enrolled in a village tribe. It would be these thousands of community members who would miss out on the relief.
But not all Alaska Natives agree with this perspective. Michael Williams, Sr., Yupiit, who is chief of the Akiak Native Community, told Indian Country Today that only tribes should receive the CARES Act funding.
“I fully support the ANCs making as much money as they can, but they should never have that recognition as tribal governments, because if that ever happens, then anybody could get into our grants and contracts, that are geared for tribal governments in this nation -- and we can not set that precedent,” he said, adding that he thought there could be legislation separate from the CARES Act to help shareholders who weren’t tribally enrolled.
Other tribes in the Lower 48 have echoed Williams’ statement.
“Even if a corporation had a 'population' based on its shareholders, the patchwork nature of ANC ownership and jurisdictions where ANC shareholders reside inevitably leads to double counting portions of the population of Alaska (and other states) and unfairly directing funds based on those counts to ANCs at the expense of federally recognized tribes," the plaintiffs argued in a brief.
The case could have extensive implications regarding the future of Alaska Native corporations.
At the heart of the litigation lies contested interpretations of the Indian Self-Determination and Education Assistance Act. Under the self-determination law, ANCs have been able to receive federal funds intended for Indigenous populations throughout the past 45 years. This was not viewed as contentious in the past — a brief states that the “federal government’s treatment of ANCs as ISDEAA tribes has been neither anomalous nor sporadic” — and that it has been a “fundamental reality” for Alaska Natives for decades.
“We have been able to participate, rightly so as Indians, as Native Americans, as Indigenous people, using that ISDEA definition, in many programs -- for education, for social services, for healthcare, for language preservation, you name it,” said Jaeleen Kookesh, Tlingit and Athabascan, who is the vice president of policy and legal affairs at Sealaska, the Alaska Native Corporation of the southeast region.
She said the original point of the act was to allow Native people to care for their own, seeing as they had the best understanding of what their communities needed. Excluding ANCs from this definition would take away that element of self-determination.
“It shatters the basic infrastructure of Native life in Alaska, threatening to leave tens of thousands of Alaska Natives excluded from scores of special-federal-Indian-law programs in which Congress intended them to partake via ANCs,” argues the brief.
Some Alaska Native leaders fear this seemingly one issue, COVID-focused decision could have long-term impacts for the state that last far beyond the pandemic.
“I think the really sad and unfortunate thing is…this was a fight over a zero-sum game of money. But the implications are so much more broad,” Aicher said.
The other side also fears the case’s long lasting impacts. Certain tribes worry that a ruling in favor of ANCs could shift the legal definition of tribal sovereignty, and open up other entities, like corporations, to receive benefits set up for tribal governments.
“The case is also about more than money,” said Paul Spruhan, an attorney with the Navajo Nation, which is a plaintiff in the case. “It is also about the role of the Alaska Native corporations as opposed to Native Villages and other actual tribal sovereigns and whether such business entities should ever have the same status of bona fide tribes.”
The new American Rescue Plan, which builds upon previously enacted aid efforts in 2020 such as the CARES Act, left out the ISDEA definition, meaning only tribal governments, not ANCs, will receive the next round of funding.
Both Aicher and Kookesh believe that complications continue to stem from a lack of understanding surrounding the Alaska Native Claims Settlement Act, and differences within the Alaskan tribal landscape.
“I don't think that the tribes in the Lower 48 are being ill- intentioned or malicious by any means,” Aicher said. “I think that they're just simply trying to compare the system that they know and understand to Alaska and the system they think exists in Alaska. And it's not comparable on any level.”
“I feel like a broken record, sometimes trying to explain over and over again, over my career, how Alaska is different, and how our service delivery works, what ANCs are,” said Kookesh, who added that as an enrolled tribal citizen and shareholder, she didn’t think one system was better than the other — they just served different purposes and provided different resources.
“We've constantly had to educate tribes to say, we're not seeking sovereignty, we're not trying to take your place,” she said. “But if you don't include ANCs, then Alaska Natives will not get funds that are meant for Indigenous people, because of the way our system is set up.”
As the 50th anniversary of the landmark Alaska Native Claim Settlement Act approaches, Indian Country Today will be producing a series that examines some of these issues, the differences between ANCs and lower 48 tribal systems, what the corporate system got right, and aspects that could be improved upon.
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