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By Joaqlin Estus
Indian Country Today

Alaska Native corporations are eligible for some of the $8 billion in coronavirus relief aid Congress set aside for tribes, the Trump administration determined Thursday, just days before a deadline to distribute the money among hundreds of tribal governments.

Now it will be up to a federal judge to decide whether to grant an injunction and temporary restraining order halting disbursement of the money.

The U.S. Treasury Department said in a court filing Thursday evening 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.

Those corporations “stand to receive no funding if Plaintiffs prevail,” the department wrote in the memorandum filed in a case brought by tribes against Treasury Secretary Steve Mnuchin.

“By contrast, Plaintiffs stand merely to receive less funding — 30%, by their estimation (although the true amount presently remains unclear) — than they would under their interpretation of the CARES Act.”

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 for tribal governments, not Alaska Native businesses. Some 20 tribes have joined the suit.

Thursday morning, the Treasury Department asked Washington, D.C., District Court Judge Amit P. Mehta for more time to reach a final decision on the question of whether Alaska Native corporations qualify as “Tribal governments” under the relief law. The agency previously said the parties in the suit “have been conferring on a path forward in an attempt to reach agreement.”

(See: Memorandum in opposition to Motion for Temporary Restraining Order and Motion for Preliminary Injunction)

The relief law defined tribes by referencing a definition in the Indian Self Determination Act that includes Native corporations as Indian tribes. 

Corporations say there is no ambiguity in the relief law: Alaska Native regional and village corporations are “tribes” under the law. They note corporations are specifically included in the definition of tribes in the Self Determination Act, and were created under the Alaska Native Claims Settlement Act of 1971 to support Alaska Native communities and shareholders economically, culturally and socially. Thus, they contend, they qualify for the relief act funds.

But the Interior Department does not include the Native for-profit corporations on its list of federally recognized tribes. Under treaties and extensive case law, federally recognized tribes are sovereign governments with a government-to-government relationship with the federal government.

Tribes had expressed concern that the relief law set a 30-day deadline for distribution of the $8 billion.

Representing the Treasury Department, Justice Department attorney Jason Lynch said it cannot be plausibly argued that the appropriation lapses Sunday at midnight.

“The statute refers to fiscal year 2020 several times. This is obviously a statute that's intended to get money out,” Lynch said. “I think it would be just facially implausible to suggest that Congress only intended the $8 billion to go out if Treasury could do it by April 26 but not after.”

Six tribes initially filed the request for an injunction, then others joined the suit. The first six are 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.

(Related: Navajo Nation files lawsuit against United States for fair share of federal COVID-19 funding)

In their injunction motion Monday, the tribes called for quick action from Mehta, saying that 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 impact of the pandemic. And some have donated as much as a million dollars 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.

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Joaqlin Estus, Tlingit, is a national correspondent for Indian Country Today, and a long-time Alaska journalist.

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