Tribes win decision to exclude Alaska Native corporations from $8B coronavirus fund

The Barrett Prettyman Court House is home to the U.S. Court of Appeals for the D.C. Circuit. (Wikimedia Commons)

Alaska Native corporations can’t receive a share of the $8 billion coronavirus fund Congress created for tribes, the U.S. Court of Appeals for the D.C. Circuit says.

If it stands, the decision could prevent Alaska’s regional and village corporations from receiving hundreds of millions of dollars.

The corporations called the decision flawed and damaging to remote communities and villages most at risk from COVID-19. Alaska’s congressional delegation also criticized the decision.

“They’re dead wrong. The court, the 9th Circuit is dead wrong,” Alaska Congressman Don Young said, blaming the wrong appellate court in an interview Friday with KOTZ.

Young and both U.S. senators filed a brief in the case to support the corporations. Young said they’d appeal.

“I’m sure the legal teams of the ANCs will do it and we’ll go to the Supreme Court,” he said.

The $8 billion was part of the CARES Act. The case turned on the definition of the word “tribe.”

The CARES Act said the term is to be defined as it is in a 1975 law, the Indian Self-Determination and Education Assistance Act.

That definition includes the corporations in a list of qualifying Indian organizations but then adds another condition: To be considered a tribe, the organization has to be “recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”

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Those are terms that have special meaning in Indian law, and a three-judge panel of the court said corporations aren’t included in that definition.

The decision is a win for tribes, including six Alaska tribes that joined a dozen from the Lower 48 to bring the legal challenge. They said the case wasn’t about just denying funds to the for-profit corporations but about preserving their status as sovereign governments.

Judge Karen LeCraft Henderson wrote a separate concurring opinion. She called the result “unfortunate” and said it was due to hasty drafting of the CARES Act.

“It is indisputable that the services ANCs provide to Alaska Native communities—including healthcare, elder care, educational support and housing assistance—have been made only more vital due to the pandemic,” she wrote. “I can think of no reason that the Congress would exclude ANCs” from the CARES Act funding.