US position on tribal relief funds sets up court battle

FLAGSTAFF, Ariz. (AP) — Alaska Native corporations are eligible for a share of $8 billion in coronavirus funding for tribes, the U.S. Treasury Department said late Thursday, setting the stage for a court battle.

More than a dozen Native American tribes have sued the federal government to try to keep the money out of the hands of the corporations. They contend it should go only to the 574 tribes that have a government-to-government relationship with the United States.

The Treasury Department said a plain reading of the CARES Act makes the corporations set up under a 1971 settlement among the U.S., Alaska Natives and the state of Alaska eligible for the funding.

U.S. District Court Judge Amit Mehta in Washington, D.C., has scheduled a Friday hearing on the tribes’ request for a temporary restraining order to keep the Treasury Department from dispersing the funds until the judge settles the larger question of eligibility.

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“Each day that goes by without receipt of these funds causes greater hardship to Native American tribes and associated entities,” he said during a Thursday morning hearing in the case. “The sooner we get to a decision in this case, the better.”

State and local governments started getting direct payments this week under the $2.2 trillion package, under a formula based largely on population. No payments have been made to tribes.

The CARES Act includes the corporations under a definition of “Indian Tribe.” But the tribes and the corporations disagree on the intent of Congress.

The Treasury Department’s position that the corporations are eligible is in line with the Interior Department and the corporations themselves.

Tribes have said the corporations’ reading of the definition is short-sighted, and they worry the corporations could receive a disproportionate share of the funding that would disfavor tribes.

The Treasury Department said it intends to “take steps to account for overlaps.” The agency hasn’t said exactly how it will determine who gets what. It asked tribes and the corporations last week for information on spending, and the number of tribal citizens, corporate shareholders and employees.

The corporations are unique to Alaska and own most Native lands in the state under the 1971 settlement that one of the corporations characterized as a modern-day treaty.

While they are not tribal governments, the corporations argue their roles are essential in supporting the more than 230 Alaska Native villages through employment opportunities, job training, scholarships, cultural preservation programs, land management and economic development.

One regional corporation, Ahtna Inc., noted that any Alaska Native tribe wanting to build a health care facility couldn’t do so without the corporations because the corporations control the land.

“Plaintiffs understandably are trying to maximize the funds available to their communities,” attorneys for Ahtna wrote in a friend of the court brief. “The solution is not to seek to deny critical funding to other Alaska Native communities who also need those funds and whom Congress specifically chose to include as eligible recipients under the Act.”

The Treasury Department has said it would send payment to tribes no sooner than Tuesday, two days past the deadline set in the CARES Act.

Lynch and Riyaz Kanji, an attorney representing the tribes, told the judge that the Treasury Department wouldn’t legally be barred from releasing the funding after Sunday.

Yet some tribes are desperately anticipating the money and worry about a malleable deadline, Kanji said.

“At the end of the day, there’s nothing like a strict deadline to focus a decision, and Congress provided that strict deadline,” Kanji said.

Tribes are looking to the federal funds to respond to the coronavirus pandemic and stay afloat after shutting down casinos, tourism operations, agriculture and other businesses that are their main moneymakers. Tribes have no property tax base because their land is held in trust by the federal government and cannot be sold or used as collateral.

The Akiak Native Community in Alaska said it has restored water and sewer service to residents who were shut off for non-payment, distributed cleaning supplies and started a food bank. The community of about 535 members along the Kuskokwim River currently is accessible only by air.

“Without income from any source we will be unable to provide any more services, at this time,” Chief Mike Williams wrote in court documents.

The tribes that have sued are: The Confederated Tribes of the Chehalis Reservation, the Quinault Indian Nation and the Tulalip Tribes in Washington state; the Houlton Band of Maliseet Indians in Maine; the Akiak, Asa’carsarmiut Tribe and Aleut Community of St. Paul Island in Alaska; the Navajo Nation in Arizona, New Mexico and Utah; Picuris Pueblo in New Mexico; the Rosebud, Cheyenne River and Oglala Sioux tribes in South Dakota; San Carlos Apache in Arizona; and the Elk Valley Rancheria in California.

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This story has been updated to correct the spelling of an Alaska Native corporation to Ahtna, Inc.

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