Coronavirus Relief Funding (CARES Act)

Attorney: Erin Dougherty Lynch, Matthew N. Newman, Wesley James Furlong, Megan R. Condon, Joel Williams, Matthew L. Campbell, Kim Jerome Gottschalk, David L. Gover

Tribes work to ensure that the CARES Act Coronavirus Relief Fund (CRF) is disbursed directly and exclusively to tribal governments. NARF consistently has held that for-profit Alaska Native Corporations are not Indian tribes, therefore they should not receive funding intended for tribal governments.

Case Updates:

April 19, 2021:

On Monday, April 19, 2021, the United States Supreme Court heard oral arguments in Yellen v. Confederated Tribes of the Chehalis Reservation et al. In the case, state-chartered Alaska Native Corporations (ANCs) have asked the Court to divert CARES Act funding set aside to help state, local, and tribal governments cover necessary expenditures incurred due to COVID-19. The ANCs argue that they are also entitled to hundreds of millions of dollars of funding set aside for federally recognized tribal governments. The decision in this case will have tremendous impacts for federally recognized Indian tribes and the people who rely on their services, especially during the COVID-19 crisis.

“The effects of the Court’s decision will be felt by tribes and American Indian and Alaska Native people long after the pandemic has given way,” remarked Chief Mike Williams of the Akiak Native Community, one of the six respondent tribes from Alaska.  “Allowing ANCs to claim the same legal status as sovereign Indian tribes would mark a sea change in federal Indian policy and have devastating consequences for all of Indian country.”  Federally recognized Indian tribes are eligible for a wide range of unique—but underfunded—programs and services provided by the federal government to Indians.  There are presently 574 federally recognized tribes, including 229 in the state of Alaska, who would now have to compete for scarce federal funding with over 200 for-profit corporations.

Over the past year, the pandemic has devastated Native American communities across the country. According to the Centers for Disease Control and Prevention, American Indians and Alaska Natives are three- to five-times more likely to be diagnosed with COVID-19 than white Americans and are almost two times more likely to die from the disease. In response, tribal governments and tribal consortia have been responsible for providing a broad range of services and regulations to protect those living in their communities. It is certain that, without these ongoing government actions, the devastation and loss of life would have been even worse.

In an effort to persuade the Court, the ANCs have crafted a narrative that places them at the center of service delivery in Alaska.  Nothing could be further from the truth.  It is Alaska’s 229 Tribes and their tribally-controlled tribal consortia and Tribal Health Organizations that deliver healthcare and social services to Alaska Natives. There is a statutorily-authorized role for one ANC, CIRI, and its subsidiary, Southcentral Foundation for healthcare services―an arrangement that will be unaffected by the outcome of this case.  Indeed, at oral argument the federal government’s attorney conceded that the ANCs have hardly any service agreements in place and that the practical consequences of a ruling in the tribal respondents’ favor would be limited.  In essence, 200-plus private corporations that provide no government services to Alaska Natives are riding the coattails of a single ANC with a single authorizing statute that is irrelevant to this case, and if successful will receive a windfall of money meant for tribal governments. In addition, in separate provisions of the CARES Act and the American Rescue Plan Act, Congress has appropriated billions of dollars to ensure that all American Indian and Alaska Native people have access to robust health care services during the pandemic.

Of course, tribal governments were not alone in fighting the pandemic. Some state and local governments also have poured massive amounts of time and resources into COVID response. They had to. Governments have specific rights as sovereign entities, but they also have responsibilities to protect the well-being of people in their communities. Congress acknowledged those responsibilities with CARES Act provisions that targeted government responses necessitated by the public health emergency.

State-chartered, for-profit Alaska Native Corporations (ANCs) want to ignore this unique government function. To increase their access to CARES Act funding, ANCs seek to liken themselves to federally recognized, sovereign, Indian tribes. They do this despite being not federally recognized, not sovereign, and not tribes. Federal recognition is reserved exclusively for those Indian groups that have entered a government-to-government relationship with the United States, which ANCs have not.

“A business has neither the rights nor the responsibilities of a sovereign government. Unlike a tribe, state, or city, corporations are not expected to pour every resource into providing services to their community. Ultimately, a corporation’s responsibility is only to its shareholders,” explained Chief Williams.

This is the issue before the Supreme Court today. Are for-profit Alaska Native Corporations―some with billions of dollars in revenue―entitled to the funding that Congress set aside for tribal governments? For tribes, looking to continue services to their communities uninterrupted, the stakes are high. For Native communities, seeking the ongoing support needed to move beyond the pandemic, the effects of the Court’s decision will be felt deeply.

Seventeen federally recognized Indian tribes—including six Alaska tribes—are respondents in Yellen v. Confederated Tribes of the Chehalis Reservation et al. (20-543). Find Supreme Court case documents at https://sct.narf.org/caseindexes/mnuchin_v_chehalis.html.

April 16, 2020:

NARF joined 12 other national and regional tribal organizations in sending a letter to Secretary of Interior Bernhardt and Secretary of Treasury Mnuchin urging them to ensure that the Coronavirus Relief Fund (CRF) is disbursed directly and exclusively to tribal governments. NARF consistently has held that for-profit Alaska Native corporations are not Indian tribes, therefore they should not receive funding intended for tribal governments.

From the letter:

The undersigned organizations feel obligated to communicate to Secretary Mnuchin the gravity of this decision. This is not a one-off decision that Treasury can make with minimal unintended consequences. Any indication that Congress has recognized Alaska Native Corporations’ “boards of directors” as akin to tribal political governing bodies completely misrepresents the breadth and meaning of tribal governance. This is categorically incorrect and diminishes the stature of federally recognized tribal governments and our sacred government-to-government, nation-to-nation, sovereign-to-sovereign relationship. If this legally unsupported assertion is taken as true by Treasury or any other body of the federal government, it potentially results in a course-changing decision that could have dangerous implications for federal Indian law, as it could irreparably affect how the United States treats and views sovereign tribal governments.

Read the full letter →

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