Alaska Congressional Delegation Files Amicus Brief in Support of Alaska Native Corporations

Press Release

U.S. Senators Lisa Murkowski and Dan Sullivan and U.S. Congressman Don Young, all R-Alaska, filed an amicus curiae brief urging the U.S. Supreme Court to grant the petition for a writ of certiorari in support of Alaska Native Corporations (ANCs) eligibility for tribal assistance appropriated by the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The amicus brief states that the indigenous peoples of Alaska will suffer severe negative consequences as a result of the D.C. Circuit Court of Appeals' September 25, 2020 decision, which held that ANCs are ineligible for CARES Act tribal coronavirus relief funding. The Alaska Congressional Delegation argued the decision should be reversed, citing decades old precedent and federal Indian law which supports ANCs eligibility for this funding. The U.S. Court of Appeals for the D.C. Circuit's September ruling overturned an earlier June 26 ruling by a U.S. District Court that concluded ANCs are eligible for the aid.

"We worked hard to secure funding within the CARES Act to provide emergency-relief funds to 'Indian tribes' as defined by the Indian Self-Determination Education and Assistance Act--which includes Alaska regional or village corporations--to help provide the maximum benefit to all indigenous people to help overcome the impacts of COVID-19. The ruling by the D.C. Circuit deeming ANCs as ineligible for this critical funding is unacceptable as it goes against the language of ANCSA, ISDEAA, and the CARES Act, erasing more than 45 years of precedent, with the potential to undo the tribal systems of healthcare, education, housing, and more," said the delegation. "The pandemic is hitting Alaska Native villages hard with COVID cases continuing to rise. We stand with the ANCs who are fighting for the health and safety of all Alaska Natives."

Click here for the full amicus brief.

Excerpts from the Amicus Brief:

"To undermine programs during a global pandemic is a failure to understand how Native entities work together in Alaska and calls for review by this Court."
"As Members of Congress who represent the only indigenous population that has been singled out for this disparate treatment, we have a unique interest in participating in this briefing and will be useful for this Court in interpreting the laws we have consistently passed for nearly half a century."
"The DC Circuit's decision, if allowed to stand, will have a widespread and deleterious effect on numerous agencies' precedents and practice, and calls into question laws that have been relied upon, with good reason, by the indigenous people of Alaska and this Nation, for nearly half a century."
"The DC Circuit's decision singles out the indigenous people of Alaska, the constituency we represent, and forces them to try to seek redress from the State rather than the federal government, which owes them a special duty under the trust relationship as Indians. Not only is that incorrect for legal and historic reasons, but it is also not the reality of how services are received or delivered in Alaska."
"Additionally, due to the sweeping nature of the DC Circuit's decision, the full impact of the injury is unknown, but may prove fatal to more than one system of delivering services to the Indian population of Alaska."
"While a global pandemic spreads to the remote villages of Alaska, the system that delivers health care has been called into question and critical funding withheld."
"Currently, COVID cases in the remote villages hit 20 percent and little safeguards within the communities. Over 30 villages lack basic sanitation infrastructure; there is no running water for all the residents, no flush toilets-- the lack of which only enables the pandemic to spread. According to the U.S. Census Bureau's 2019 survey, 15.8% of Alaska's overall population is Alaska Native and American Indian alone. With the pandemic just reaching the villages, Alaska Native and American Indian people already account for 32.3% of total deaths in Alaska. This is occurring while needed relief funds are being withheld."
"ANCSA makes clear that the Alaska Native people are the heart and soul of the ANCs, and for whom the ANCs were formed to benefit. Alaska Native people are not to be considered "less than" other Indian people just because they fall into one designation rather than another. With its passage in 1975, ISDEAA also explicitly recognized and imported ANCs into concepts of self-determination by including them in the definition of 'Indian tribe.'"
"The DC Circuit's decision found that the systems of receiving and delivering Indian services in Alaska should be set-aside because it did not conform to the Lower 48 model of a traditional sovereign tribe with reservation land; this is a fundamental misunderstanding of Alaska which has grave consequences."
Timeline:

On March 27, the CARES Act was signed into law, including an $8 billion set-aside for tribal governments.
On April 14, the Alaska Congressional Delegation wrote to Treasury Secretary Steven Mnuchin and Interior Secretary David Bernhardt detailing the unique legal framework and circumstances for tribal entities in Alaska. The letter provided a historical background on Alaska regional corporations, which are made eligible for CARES Act assistance because of the definition of "Indian tribe" used in the bill.
In April, several tribes filed lawsuits to prevent CARES Act funds from being distributed to ANCs.
On April 23, the delegation penned an op-ed in the Anchorage Daily News to correct the mischaracterizations about ANCs and explain why the entities are eligible for CARES Act funds.
On June 26, U.S. District Judge Amit Mehta ruled ANCs are eligible for the aid. Judge Mehta based his decision on the definition of "Indian tribe" provided by the 1975 Indian Self-Determination and Education Assistance Act and used in the CARES Act, which included ANCs.
On September 25, the U.S. Court of Appeals for the D.C. Circuit overturned the June 26 ruling and determined ANCs are ineligible for tribal assistance appropriated by the CARES Act.

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