Appeals court rules ANCs ineligible for CARES Act Tribal aid
Additional pandemic relief aid could be out of reach indefinitely for nearly 200 Alaska businesses following a ruling by Washington, D.C., Appeals Court judges.
A three-judge panel of the D.C. Court of Appeals ruled Sept. 25 that Alaska Native corporations are ineligible for a portion of $8 billion allocated to Tribal organizations across the country in the $2 trillion CARES Act passed by Congress in late March.
The decision reversed a June 26 District Court ruling in favor of the Native village and regional corporations, in which D.C. District Court Judge Amit Mehta determined Native corporations are eligible for CARES Act funds, “as Congress intended — no more, no less,” Mehta wrote in his order.
Title V of the massive spending package lays out how $150 billion in coronavirus relief funds were to be distributed by the Treasury Department, stating that $8 billion of the broader pool going to states, municipalities and Tribes shall be reserved for “making payments to Tribal governments.”
However, the appeals panel concluded that specific wording in the 1975 Indian Self-Determination and Education Assistance Act, or ISDA, excludes Alaska Native regional and village corporations from receiving the aid intended for Tribes, regardless of what Congress meant in the CARES Act.
The CARES Act defines a Tribal government as “the recognized governing body of an Indian Tribe,” according to the court, and uses the definition of an “Indian Tribe” found in the ISDA.
The ISDA generally references Alaska Native village and regional corporations among other organizations in its definition of a Tribe, but also requires the entities be “eligible for the special programs and services provided by the United States to Indians because of their status as Indians,” according to the ruling.
The appeals court concluded that Alaska Native corporations, commonly known as ANCs, cannot be eligible for a portion of the $8 billion “because no ANC has been federally ‘recognized’ as an Indian tribe, as the recognition clause requires, no ANC satisfies the ISDA definition.”
The ruling stems from lawsuits filed by 18 Tribes from across the country, including six Alaska Tribes, against the Treasury Department in late April, in which the Tribes argued the for-profit corporations should not get money set aside specifically for Tribal governments.
The members of Alaska’s all-Republican congressional delegation said in a joint statement that the Tribal funds were intended to provide pandemic relief for all American Indians and Alaska Natives; it matters not how they would receive the money, according to the delegation.
“It is unconscionable that COVID-19 aid would be withheld from a subset of Alaska Native people simply because of the unique tribal system that exists in Alaska,” the delegation said. “Furthermore, this decision goes beyond the CARES Act, erasing more than 45 years of precedent and practice, with the potential to undo tribal systems of health care, housing, education, workforce development, and more in our great state.”
The delegation’s statement eludes to the 1971 Alaska Native Claims Settlement Act, which established the 12 current Alaska Native regional corporations and the 174 village corporations in operation today and collectively allocated them 44 million acres in the state in-lieu of the Tribal reservation system used across the country to resolve land disputes between Tribes and the federal government.
The Alaska Regional and Alaska Native Village Corporation associations, which intervened in the case on behalf of their members, said in a joint Sept. 25 statement that the “deeply flawed” ruling will only worsen the effects of the pandemic in Alaska by limiting access to critical health services and economic relief in remote communities across the state.
“For forty years, courts and administrative agencies have consistently recognized that Alaska Native communities are uniquely organized, as designed by Congress. Within this framework, that includes both regional and village corporations, we strive every day to bring our ‘shareholders’ — our Alaska Native brothers and sisters — economic opportunity as well as vital social, health, cultural and educational services. Until today, our status as Indians under the Indian Self-Determination and Education Assistance Act, which expressly includes Alaska Native corporations among other types of Indian Tribes, has never been called into doubt,” the ANC associations said.
Treasury officials have not disclosed exactly how much of the $8 billion was set-aside for ANCs, but the Appeals Court ruling indicates $162 million was meant for the Alaska companies.
The ruling does not prohibit the 229 federally recognized Tribes in Alaska — some of which backed the original lawsuits — from receiving a portion of the $8 billion.
Additionally, many of the smaller village corporations and regional corporation subsidiaries were among the roughly Alaska-based small businesses that collectively received more than $1.2 billion in forgivable federal loans through the Small Business Administration’s popular Paycheck Protection Program.
Leaders for the Alaska Regional Association did not respond to questions in time for this story about whether or not the group will appeal the decision, among other issues.
Elwood Brehmer can be reached at [email protected].