Judges: Alaska Native corporations ineligible for aid funds

BY ASSOCIATED PRESS
09/28/2020 10:30 AM
JUNEAU, Alaska (AP) – Alaska Native corporations are not eligible to receive a share of the $8 billion in federal coronavirus relief funding set aside for tribes, a federal appeals court panel ruled Sept. 25 in overturning a lower-court decision.

The three-judge panel of the U.S. District Court of Appeals District of Columbia Circuit found an Alaska Native corporation cannot qualify as an Indian tribe under the federal Indian Self-Determination and Education Assistance Act unless it has been “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” None have been recognized as such, according to the ruling.

The decision parses the language from the 1975 law and delves into what it says have been shifting positions on the “political status” of Alaska Natives by the federal government since the Alaska Purchase of 1867. 

The federal coronavirus aid package, passed earlier this year, references the 1975 law to define an Indian tribe. The decades-old law defines the term as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act ..., which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians,” according to the ruling.

Judge Karen LeCraft Henderson said she agreed with her colleagues on the ruling but believed the decision was “an unfortunate and unintended consequence of high-stakes, time-sensitive legislative drafting,” referring to the speed with which the coronavirus relief package was drafted and implemented.

She wrote it is “indisputable” that services Alaska Native corporations provide their communities “have been made only more vital due to the pandemic,” adding she could think of no reason that Congress would exclude them from receiving and spending aid dollars. 

Congress may have believed the definition it used included Alaska Native corporations but it did not, she said, leading to a “harsh result.”

Riyaz Kanji, an attorney for some of the tribal plaintiffs, by email said his clients appreciated the court’s “thorough, careful exposition of the statutory and historical factors making it clear that Alaska Native Corporations are not Indian Tribes, a term restricted to sovereign Tribes enjoying a government-to-government relationship with the United States.”

Cherokee Nation Principal Chief Chuck Hoskin Jr. said he was pleased with the ruling, calling the Alaska Native corporations state-chartered and for profit and not Indian tribes.

“CARES Act dollars were intended by Congress to be placed in the hands of federally recognized tribal nations to respond to the havoc and devastation left on our tribal citizens from COVID-19, in which day in and day out we are minimizing the impact of this deadly virus through food security programs for our elders, test kits and safety supplies for our citizens, education tools for our students who are distance learning and countless other measures in which we have adapted.”

He added that the win cost tribal governments time and that the court victory should show Congress that Indian Country “deserves a deadline extension to spend CARES Act funds and that prompt action is warranted.”

It was not immediately clear if the decision would be appealed. After-hour messages were left for the U.S. Justice Department.

In a joint statement, Alaska U.S. Sens. Lisa Murkowski and Dan Sullivan and Rep. Don Young said they disagree with the ruling.

“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,” they said.

The Alaska Native Village Corporation Association and ANCSA Regional Association called the ruling flawed. The ANCSA Regional Association’s board is made up of leaders of Alaska Native regional corporations.

They said until now, their status as Indians under the 1975 law “has never been called into doubt.”

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