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[Proposed] Second Amended Complaint — Chehalis Reservation et al. v. Mnuchin (D.D.C., Doc. 93)

Summary

A [Proposed] Second Amended Complaint for Declaratory and Injunctive Relief, Document 93 in Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002-APM, in the United States District Court for the District of Columbia, filed June 17, 2020. Plaintiffs, federally recognized Indian Tribal governments including Tulalip Tribes and the Navajo Nation, allege that Secretary Steven Mnuchin threatens to divert Title V relief funds to more than 230 for-profit corporations incorporated under Alaska law. They ask the Court to preliminarily and permanently enjoin the Secretary to allocate and disburse all $8,000,000,000 reserved by Congress to federally recognized Tribal governments, exclusive of Alaska Native regional corporations and village corporations.

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Cite this document

“[Proposed] Second Amended Complaint — Chehalis Reservation et al. v. Mnuchin (D.D.C., Doc. 93).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/amended-complaint-confederated-tribes-of-the-chehalis-reservation-et-a-5ed1ca3ef6/, SHA-256 67c0701ee25102e7020038d34c5b763471db5ec615fc773e985093208b106b93.

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            Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 1 of 42



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7                            UNITED STATES DISTRICT COURT
                                 DISTRICT OF COLUMBIA
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9
     CONFEDERATED TRIBES OF THE CHEHALIS Case No.: 1:20-cv-01002-APM
     RESERVATION
10   420 Howanut Road
     P.O. Box 536
11   Oakville, WA 98568                  [PROPOSED] SECOND AMENDED
                                         COMPLAINT FOR DECLARATORY AND
12   TULALIP TRIBES                      INJUNCTIVE RELIEF
     6406 Marine Drive
13   Tulalip, WA 98271

14   HOULTON BAND OF MALISEET INDIANS
     88 Bell Road
15   Littleton, ME 04730
16
     AKIAK NATIVE COMMUNITY
     P.O. Box 52127
17
     Akiak, AK 99552
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     ASA’CARSARMIUT TRIBE
19   P.O. Box 32249
     Mountain Village, AK 99632
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     ALEUT COMMUNITY OF ST. PAUL ISLAND
21   2050 Venia Minor Road
     P.O. Box 86
22   St. Paul Island, AK 99660

23   THE NAVAJO NATION
     P.O. Box 9000
24   Window Rock, AZ 86515
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     [PROPOSED] SECOND AMENDED COMPLAINT FOR                         Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                 811 1st Ave., Suite 630
     – Page 1                                                              Seattle, WA 98104
                                                                                206-344-8100
                Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 2 of 42



1    QUINAULT INDIAN NATION
     1214 Aalis Drive
2    Taholah, WA 98587
3    PUEBLO OF PICURIS
     P.O. Box 127
4
     Peñaso, NM 87533
5
     ELK VALLEY RANCHERIA, CALIFORNIA
6    2332 Howland Hill Road
     Crescent City, CA 95531
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     SAN CARLOS APACHE TRIBE
8    P.O. Box 40
     16 San Carlos Avenue
9    San Carlos, AZ 85550

10                  Plaintiffs,

11          v.

12   STEVEN MNUCHIN, SECRETARY, UNITED
     STATES DEPARTMENT OF THE TREASURY
13   1500 Pennsylvania Ave., N.W.
     Washington, D.C. 20220
14
                    Defendant.
15

16
            Plaintiffs Confederated Tribes of the Chehalis Reservation (“Chehalis”), Tulalip Tribes
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     (“Tulalip”), Houlton Band of Maliseet Indians (“Houlton Band”), Akiak Native Community
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     (“Akiak”), Asa’carsarmiut Tribe (“Asa’carsarmiut”), Aleut Community of St. Paul Island
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     (“ACSPI”), Navajo Nation (“Navajo Nation”), Quinault Indian Nation (“Quinault”), Pueblo of
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     Picuris (“Picuris”), Elk Valley Rancheria, California (“Elk Valley”), and San Carlos Apache
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     Tribe (“San Carlos Apache”), federally recognized Indian Tribal governments that provide
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     essential governmental services to their citizens, by and through counsel, state and allege as
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     follows:
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     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 2                                                                                  Seattle, WA 98104
                                                                                                    206-344-8100
              Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 3 of 42



1                                           INTRODUCTION

2           1.       Congress enacted the Coronavirus Aid, Relief, and Economic Security Act

3    (“CARES Act”), H.R. 748, 116th Cong. (2020), which President Trump signed into law on

4    March 27, 2020, to respond to the devastating impacts of the COVID-19 pandemic. Title V of

5    the CARES Act, Section 5001, amends the Social Security Act by creating the Coronavirus

6    Relief Fund (“Section 601”) and appropriating $150,000,000,000 for fiscal year 2020 “payments

7    to States, Tribal governments, and units of local government.” Section 601(a)(1). Title V

8    mandates that the Secretary of the United States Department of the Treasury “shall reserve . . .

9    $8,000,000,000 of such amount for making payments to Tribal governments.” Section

10   601(a)(2)(B).

11          2.       There are 574 federally recognized Tribal governments that maintain a

12   government-to-government relationship with the United States. These include Indian tribes and

13   nations in the lower-48 states, such as Chehalis, Tulalip, the Houlton Band, the Navajo Nation,

14   Quinault, Picuris, Elk Valley, and San Carlos Apache, as well as native villages in Alaska, such

15   as Akiak, Asa’carsarmiut and ACSPI. Defendant Steven Mnuchin, Secretary of the U.S.

16   Department of the Treasury (“Defendant” or “Secretary”), threatens to defy Congress’s mandate

17   by diverting Title V relief funds away from these sovereign Tribal governments to more than 230

18   for-profit corporations incorporated under the laws of the State of Alaska and their shareholders.

19   These “state-chartered and state-regulated private business corporations,” Alaska v. Native

20   Village of Venetie Tribal Government, 522 U.S. 520, 534 (1998), which conduct business

21   worldwide through dozens of subsidiaries, are not “Tribal governments” and are not eligible to

22   receive Title V funds under the plain language of the CARES Act.

23          3.       The Secretary’s designation and treatment of these private corporations as Tribal

24   governments reduces the funds available for allocation and distribution to Plaintiffs, who are in

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     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 3                                                                                  Seattle, WA 98104
                                                                                                    206-344-8100
                 Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 4 of 42



1    dire need of the funds to support the necessary and increased expenditures caused by the

2    COVID-19 pandemic. The Secretary is required to disburse all $8,000,000,000 by April 26,

3    2020, and Plaintiffs’ injury is imminent. Plaintiffs accordingly request that the Court

4    preliminarily and permanently enjoin the Secretary to allocate and disburse all $8,000,000,000

5    reserved by Congress to federally recognized Tribal governments, exclusive of Alaska Native

6    regional corporations and village corporations (“ANCs”), according to a reasonable formula

7    consistent with the CARES Act.

8                                      JURISDICTION AND VENUE

9            4.       This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and

10   1362. Chehalis, Tulalip, the Houlton Band, Akiak, Asa’carsarmiut, ACSPI, Navajo Nation,

11   Quinault, Picuris, Elk Valley, and San Carlos Apache maintain government-to-government

12   relations with the United States and have governing bodies duly recognized by the Secretary of

13   the U.S. Department of the Interior. Plaintiffs assert claims arising under the Constitution and

14   laws of the United States, including the Administrative Procedure Act, 5 U.S.C. §§ 701-706.

15   The allegations of the Complaint give rise to an actual controversy within the meaning of 28

16   U.S.C. § 2201.

17           5.       Venue is proper in this District pursuant to 28 U.S.C. § 1391(e) because the

18   Defendant, the Secretary of the U.S. Department of the Treasury, is an officer of the United

19   States and because a substantial part of the actions or omissions giving rise to the claims

20   occurred in this District, a substantial part of the property that is the subject of the action is

21   situated in this District, and the Secretary maintains his principal place of business in this

22   District.

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     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                  Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                          811 1st Ave., Suite 630
     – Page 4                                                                                       Seattle, WA 98104
                                                                                                         206-344-8100
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1                                             PLAINTIFFS

2           6.      Plaintiff Confederated Tribes of the Chehalis Reservation is a federally

3    recognized Indian tribal government whose governing body is recognized by the Secretary of the

4    Interior. See Indian Entities Recognized by and Eligible To Receive Services From the United

5    States Bureau of Indian Affairs, 85 Fed. Reg. 5462-01, 5463 (Jan. 30, 2020). Chehalis exercises

6    sovereign powers of self-governance and jurisdiction over the Chehalis Reservation, which was

7    set aside by Executive Order in 1864 at the confluence of the Chehalis and Black Rivers and is

8    located within the exterior boundaries of the State of Washington. Chehalis brings this action on

9    its own behalf and on behalf of its members.

10          7.      Plaintiff Tulalip Tribes is a federally recognized Indian tribal government

11   organized pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 5123, whose

12   governing body is recognized by the Secretary of the Interior. See Indian Entities Recognized by

13   and Eligible To Receive Services From the United States Bureau of Indian Affairs, 85 Fed. Reg.

14   5462-01, 5465 (Jan. 30, 2020). Tulalip exercises sovereign powers of self-governance and

15   jurisdiction over the Tulalip Reservation, which was reserved in the 1855 Treaty of Point Elliot

16   and is located within the exterior boundaries of the State of Washington. Tulalip brings this

17   action on its own behalf and on behalf of its members.

18          8.      Plaintiff Houlton Band of Maliseet Indians is a federally recognized Indian tribal

19   government whose governing body is recognized by the Secretary of the Interior. See Indian

20   Entities Recognized by and Eligible To Receive Services From the United States Bureau of

21   Indian Affairs, 85 Fed. Reg. 5462-01, 5463 (Jan. 30, 2020). The Houlton Band exercises

22   sovereign powers of self-governance and jurisdiction over its trust lands located within the

23   exterior boundaries of the State of Maine, lands which were purchased and taken into trust for

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     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                            Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                    811 1st Ave., Suite 630
     – Page 5                                                                                 Seattle, WA 98104
                                                                                                   206-344-8100
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1    the benefit of the Band following enactment of the Maine Indian Claims Settlement Act of 1980.

2    The Houlton Band brings this action on its own behalf and on behalf of its members.

3           9.     Plaintiff Akiak Native Community is a federally recognized Indian tribal

4    government located along the Kuskokwim River in Alaska whose governing body is recognized

5    by the Secretary of the Interior. See Indian Entities Recognized by and Eligible To Receive

6    Services From the United States Bureau of Indian Affairs, 85 Fed. Reg. 5462-01, 5466 (Jan. 30,

7    2020). Akiak brings this action on its own behalf and on behalf of its members.

8           10.    Plaintiff Asa’carsarmiut Tribe is a federally recognized Indian tribal government

9    located along the Yukon River in Alaska whose governing body is recognized by the Secretary

10   of the Interior. See Indian Entities Recognized by and Eligible To Receive Services From the

11   United States Bureau of Indian Affairs, 85 Fed. Reg. 5462-01, 5466 (Jan. 30, 2020).

12   Asa’carsarmiut brings this action on its own behalf and on behalf of its members.

13          11.    Plaintiff Aleut Community of St. Paul Island is a federally recognized Indian

14   tribal government located on St. Paul Island in the Bering Sea in Alaska whose governing body

15   is recognized by the Secretary of the Interior. See Indian Entities Recognized by and Eligible To

16   Receive Services From the United States Bureau of Indian Affairs, 85 Fed. Reg. 5462-01, 5467

17   (Jan. 30, 2020). ACSPI brings this action on its own behalf and on behalf of its members.

18          12.     Plaintiff Navajo Nation is a federally recognized Indian tribal government with a

19   government-to-government relationship with the United States affirmed by the ratified Treaties
20   of 1849 and 1868, whose governing body is recognized by the Secretary of the Interior. See
21
     Indian Entities Recognized by and Eligible To Receive Services From the United States Bureau
22
     of Indian Affairs, 85 Fed. Reg. 5462-01, 5464 (Jan. 30, 2020). The Treaty of 1868 created the
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     original Navajo Reservation, which through Executive Orders and acts of Congress expanded to
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     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 6                                                                                  Seattle, WA 98104
                                                                                                    206-344-8100
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1    the current Navajo Reservation, several satellite bands, and numerous off-reservation trust

2    parcels and allotments. Navajo exercises sovereign powers of self-governance and jurisdiction
3    over the Navajo Reservation. Navajo Nation brings this action on its own behalf and on behalf
4
     of its members.
5
            13.     Plaintiff Quinault Indian Nation is a federally recognized Indian tribal
6
     government whose governing body is recognized by the Secretary of the Interior. See Indian
7
     Entities Recognized by and Eligible To Receive Services From the United States Bureau of
8
     Indian Affairs, 85 Fed. Reg. 5462-01, 5465 (Jan. 30, 2020). Quinault exercises sovereign
9
     powers of self-governance and jurisdiction over the Quinault Indian Reservation, which was
10
     reserved in the 1856 Treaty of Olympia and is located within the exterior boundaries of the State
11
     of Washington. Quinault brings this action on its own behalf and on behalf of its members.
12
            14.     Plaintiff Picuris is a federally recognized Indian tribal government whose
13
     governing body is recognized by the Secretary of the Interior. See Indian Entities Recognized by
14
     and Eligible To Receive Services From the United States Bureau of Indian Affairs, 85 Fed. Reg.
15
     5462-01, 5465 (Jan. 30, 2020). Picuris, through its Tribal Council, exercises sovereign powers
16
     of self-governance and jurisdiction over its pueblo grant lands (“restricted fee lands”), which
17
     were recognized by the Spanish government and were confirmed by Congress in 1858. The
18
     Pueblo is located in a remote area entirely within the State of New Mexico, in Taos County.
19
     Picuris brings this action on its own behalf and on behalf of its members.
20
            15.     Plaintiff Elk Valley Rancheria, California, is a federally recognized Indian tribal
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     government whose governing body is recognized by the Secretary of the Interior. See Indian
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     Entities Recognized by and Eligible To Receive Services from the United States Bureau of
23
     Indian Affairs, 85 Fed. Reg. 5462, 5463 (Jan. 30, 2020). Elk Valley exercises sovereign powers
24

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     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 7                                                                                  Seattle, WA 98104
                                                                                                    206-344-8100
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1    or self-governance and jurisdiction over the Elk Valley Rancheria (reservation), which was

2    created pursuant to the Indian Office Appropriation Act of 1906 (34 Stat. 325, 333 (1906)),

3    illegally terminated by the federal government pursuant to the California Rancheria Act, and

4    restored through the Hardwick v. United States litigation. Elk Valley brings this action on its

5    own behalf and on behalf of its members.

6           16.     Plaintiff San Carlos Apache is a federally recognized Indian tribal government

7    organized pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 476, whose governing

8    body is recognized by the Secretary of the Interior. See Indian Entities Recognized by and

9    Eligible To Receive Services From the United States Bureau of Indian Affairs, 85 Fed. Reg.

10   5462-01, 5465 (Jan. 30, 2020). San Carlos Apache exercises sovereign powers of self-

11   governance and jurisdiction over the San Carlos Apache Reservation, which was created by the

12   Act of June 7, 1897, ch. 2, 30 Stat. 62, 64, and Executive Orders of 1871 and 1872, and is

13   located within the exterior boundaries of the State of Arizona. San Carlos Apache brings this

14   action on its own behalf and on behalf of its members.

15                                             DEFENDANT

16          17.     Defendant Steven Mnuchin, the Secretary of the U.S. Department of the Treasury

17   (“Treasury”), is charged by Congress with allocating and distributing relief funds to Tribal

18   governments under Title V of the CARES Act and is sued in his official capacity. The

19   Secretary’s actions violate the plain language of the Act and threaten Plaintiffs with imminent

20   irreparable injury, as set forth below.

21                        THE CORONAVIRUS AND COVID-19 PANDEMIC

22          18.     In December 2019, a new coronavirus known as SARS-CoV-2 was detected in

23   Wuhan, Hubei Province, People’s Republic of China, causing outbreaks of the coronavirus

24   disease COVID-19. On March 11, 2020, the World Health Organization declared that the

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 8                                                                                  Seattle, WA 98104
                                                                                                    206-344-8100
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1    COVID-19 outbreak can be characterized as a pandemic, stating its deep concern over both the

2    alarming levels of spread and severity, and the alarming levels of inaction as the rates of

3    infection continued to rise across the world. 1

4            19.      On March 13, 2020, President Trump issued a Proclamation on Declaring a

5    National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,

6    recognizing the preventative and proactive measures taken by all levels of government to slow

7    the spread of the virus and treat those affected. 2

8            20.      According to the Centers for Disease Control and Prevention (CDC), as of April

9    15, 2020, the United States has experienced 632,548 confirmed cases of COVID-19, and

10   suffered 31,071 deaths.3 The CDC reports that “[t]he federal government is working closely

11   with state, local, tribal, and territorial partners, as well as public health partners, to respond to

12   this situation.”4

13           21.      COVID-19 is causing devastating harm in Indian country. By way of just a few

14   examples, as of April 21, 2020, the Navajo Nation alone has reported 1,321 cases and nearly 50

15   deaths related to COVID-19.5 As of April 15, 2020, the Pueblo of Zuni has reported 33 cases. 6

16

17
     1
       Tedros Adhanom Ghebreyesus, WHO Director-General’s opening remarks at the media briefing on COVID-19,
18   World Health Org. (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-
     remarks-at-the-media-briefing-on-covid-19---11-march-2020.
     2
19     Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19)
     Outbreak, The White House (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-
     declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
20   3
       Ctrs. for Disease Control and Prevention, Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-
     updates/cases-in-us.html (last visited Apr. 16, 2020).
21   4
       Ctrs. for Disease Control and Prevention, Situation Summary, https://www.cdc.gov/coronavirus/2019-ncov/cases-
     updates/summary.html (last updated Apr. 7, 2020).
     5
22     Navajo Epidemiology Center Coronavirus Response, Navajo Nation COVID-19 Cases, https://navajo-nation-
     coronavirus-response-ndoh-nec.hub.arcgis.com (last visited Apr. 21, 2020); Press Release, Office of the President
23   and Vice President, The Navajo Nation, 124 New COVID-19 Cases Since Saturday, 4,579 Negative Results
     Reported (Apr. 20, 2020), https://tinyurl.com/ya8swa9s.
     6
       Press Release, Pueblo of Zuni, Public Notice to the Zuni Community (Apr. 15, 2020),
24
     http://www.ashiwi.org/COVID19/DailyPSAUpdate4-15-20.pdf.

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     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                         Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                                 811 1st Ave., Suite 630
     – Page 9                                                                                              Seattle, WA 98104
                                                                                                                206-344-8100
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1    And the Cherokee Nation has reported 28 cases with one fatality as of April 9. 7 Native

2    Americans suffer from disproportionately high rates of diabetes, cancer, heart disease, and

3    asthma, which subject them to greater risk of fatal complications from COVID-19.

4        THE IMPACT OF COVID-19 ON PLAINTIFFS’ GOVERNMENTS AND CITIZENS

5            22.      In creating the Title V Tribal government stabilization fund, numerous members

6    of Congress spoke directly to the tremendous hardships that COVID-19 has inflicted on federally

7    recognized Tribal governments. These governments have needed to engage in robust public

8    health activities and to provide enhanced health care and other essential public services in

9    response to the pandemic. Simultaneously, the revenues from tribally-owned businesses that

10   would normally support those governmental activities have evaporated overnight because Tribal

11   governments have closed those businesses to help fight the virus and protect their communities,

12   especially their elders and other high risk populations.

13           Chehalis

14           23.      The Chehalis Reservation comprises 5,420 acres of trust and fee lands located in
15   southwest Washington State. Chehalis has 979 members.
16
             24.      Chehalis provides government services throughout the Chehalis Reservation,
17
     including, inter alia, public safety and police services; jail services; a civil and criminal court
18
     system; critical infrastructure, such as water treatment plants; maintenance services for
19
     government and community facilities; a health clinic; behavioral health and social services;
20
     natural resource protection and enforcement; planning and licensing; elder care programs; Early
21
     Head Start and Head Start programs; and community programs for youth and adults.
22

23
     7
      Chris Polansky, Following First Death, Cherokee Nation Braces for Increase in Coronavirus Cases, Pub. Radio
24
     Tulsa (Apr. 9, 2020), https://www.publicradiotulsa.org/post/following-first-death-cherokee-nation-braces-increase-

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                           Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                                   811 1st Ave., Suite 630
     – Page 10                                                                                               Seattle, WA 98104
                                                                                                                  206-344-8100
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1            25.       Chehalis business enterprises on the Chehalis Reservation include a casino, two

2    hotels, the Great Wolf Lodge (an indoor water park), fast food franchises, and three gas stations
3    with convenience stores.
4
             26.       In response to the COVID-19 crisis, Chehalis has declared a State of Emergency
5
     and issued a shelter in place order. Chehalis has placed non-essential employees on
6
     administrative leave and closed all of its enterprises, except the gas stations. The closure of these
7
     enterprises has nearly eliminated Chehalis’s tax base and other revenue streams, which fund
8
     essential government services and employee salaries.
9
             27.       Chehalis has incurred substantial additional expenses to address the COVID-19
10
     crisis. Chehalis created an Incident Operation Center, which is tasked with providing assistance
11
     to Reservation residents and maintaining basic services such as, inter alia, clinic operations,
12
     meals for elders and children who normally eat at school, garbage and sanitation services,
13
     policing, and other basic services. The emergency services provided by Chehalis during the
14

15
     State of Emergency are unbudgeted expenses.

16           28.       As of April 16, 2020, Chehalis’s emergency efforts have prevented any COVID-

17   19 cases on the Chehalis Reservation.

18           Tulalip

19           29.       The Tulalip Indian Reservation comprises 22,000 acres of trust and fee lands

20   located north of Everett in Snohomish County, Washington. Tulalip has 4,977 members, with
21   2,700 of those members residing on the Reservation. The Reservation has approximately 15,000
22
     residents in total, of which approximately 12,000 are non-Indians.
23

24
     coronavirus-cases.

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                              Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                      811 1st Ave., Suite 630
     – Page 11                                                                                  Seattle, WA 98104
                                                                                                     206-344-8100
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1           30.     Tulalip provides government services throughout the Tulalip Indian Reservation,

2    including public safety and police services; a fire department; jail services through a contract
3    with Snohomish County; a civil and criminal court system; critical infrastructure, such as water
4
     treatment plants; maintenance services for government and community facilities; a health clinic
5
     and various treatment programs; behavioral health and social services; natural resource
6
     protection and enforcement; planning and licensing; elder support programs; child care services;
7
     early childhood and other educational programs; child welfare services; tribal employment
8
     programs; housing services; emergency management; a domestic violence safe house; and
9
     licensing, permitting, and other regulatory services.
10
            31.     Tulalip business enterprises on the Reservation include the Tulalip Resort Casino
11
     and Resort Hotel, Tulalip Amphitheatre, Quil Ceda Creek Casino, Tulalip Bingo, Tulalip
12
     Broadband, Salish Networks, the Tulalip Liquor & Smoke Shop, and two gas stations with
13
     associated convenience stores. Tulalip also engages in extensive commercial leasing on the
14

15
     Reservation, including to national retailers such as Seattle Premium Outlets (Simon Property

16   Group), Walmart, Home Depot, Cabela’s, and numerous restaurants.

17          32.     Snohomish County had the first confirmed case of COVID-19 in the United

18   States, just miles down Interstate-5 from the Tulalip Reservation. In response to the COVID-19

19   crisis, Tulalip issued a Stay at Home Emergency Order, closed its government offices, and

20   closed all of its enterprises, except Salish Networks and the gas stations. The closure of these
21   enterprises has almost entirely eliminated Tulalip’s tax base and other revenue streams, which
22
     fund essential government services and employee salaries.
23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                              Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                      811 1st Ave., Suite 630
     – Page 12                                                                                  Seattle, WA 98104
                                                                                                     206-344-8100
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1           33.     Tulalip has incurred substantial additional expenses to address the COVID-19

2    crisis. Tulalip has mobilized its emergency management team, increased COVID-19 testing
3    capabilities, procured additional personal protective equipment (PPE), repurposed its health
4
     clinic for acute care, established a telemedicine service, converted tribal community buildings for
5
     quarantine of exposed individuals, purchased an additional ambulance, and increased spending
6
     on services like tribal elder checks and food distribution programs. The emergency services
7
     provided by Tulalip during the COVID-19 crisis are unbudgeted expenses.
8
            34.     On March 17, 2020, Tulalip had its first positive case of coronavirus. As of April
9
     16, 2020, Tulalip has had ten confirmed COVID-19 cases, eight of whom have recovered.
10
     Tulalip has suffered one COVID-19-related death thus far.
11
            Houlton Band
12
            35.     The Houlton Band has 1,835 tribal citizens and 1,444 acres of trust and fee lands
13
     located in Aroostook County in northeastern Maine.
14

15
            36.     As of March 16, 2020, the Tribal Chief declared a Public Health Emergency on

16   behalf of the Houlton Band of Maliseet Indians, which included a work-from-home order. Since

17   that time, the Houlton Band has been working to build its staff’s capacity to effectively and

18   efficiently work from home. On March 16, 2020, the Band also closed two of its businesses, a

19   campground and a roller-skating rink, which frequently host parties and weddings. The Band

20   does not have any large businesses (and has no gaming enterprise) that produce substantial
21   revenue.
22
            37.     The Houlton Band is located in a rural area, where its citizens already experience
23
     significant health disparities. As a result of COVID-19, the Band has opened an emergency food
24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 13                                                                                 Seattle, WA 98104
                                                                                                    206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 14 of 42



1    pantry to assist with food security needs, and has been helping to support citizens who have lost

2    their jobs. While experiencing revenue losses, the Band has also had to incur overtime costs for
3    essential and Emergency Operation Center staff. The COVID-19 pandemic has imposed
4
     substantial financial needs and hardships on the Houlton Band.
5
            Akiak
6
            38.     The Akiak Native Community has 535 enrolled tribal members and 29.16 acres of
7
     fee lands located in Akiak, Alaska. Akiak is located along the Kuskokwim River and is only
8
     accessible by air and water. On March 26, 2020, the Akiak Council declared a Public Health
9
     Emergency on behalf of tribal members, which included the closure of Akiak’s small gaming
10
     operation and recreational activities. This Public Health Emergency also closed the community
11
     to non-essential travel.
12
            39.     The closest hospital with physicians, respiratory relief, and testing supplies is in
13
     Bethel, Alaska, which is approximately 30 air miles and 60 land miles away. It is only
14

15   accessible by air at this time. While the community of Akiak has a local health clinic, the tribal

16   community has gone for days at a time without any health care services due to the unavailability

17   of the one trained health aide.

18          40.     As a result of the COVID-19 pandemic, Akiak has started a food bank to provide

19   for families in need, has distributed cleaning supplies, is providing water and sewer service to

20   those with disconnected service due to non-payment, and has identified sites to quarantine
21   families. Akiak depends on its small gaming operation for community funding, and its closure
22
     has created financial hardship for tribal government.
23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                               Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                       811 1st Ave., Suite 630
     – Page 14                                                                                   Seattle, WA 98104
                                                                                                      206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 15 of 42



1           Asa’carsarmiut

2           41.     The COVID-19 pandemic has increased the significant challenges facing the
3    Asa’carsarmiut Tribe. The Tribe must address the needs of its homeless families as well as of
4
     the many intergenerational families who live in overcrowded substandard housing, lacking water
5
     and sewer services. These conditions create a danger to the entire community, and the Tribe is
6
     unable to obtain necessary sanitary products because there is no airline service currently. Prior
7
     to the pandemic, the Tribe was working to construct a new tribal government office building, but
8
     those efforts have been halted, and the current building does not support proper social distancing
9
     work areas and is very difficult to sanitize. While the Tribe has a small gaming office, it has
10
     been closed due to COVID-19 and the Tribe is unable to raise critical funds to meet its needs.
11
            ACSPI
12
            42.     The Aleut Community of Saint Paul Island is an isolated fishing community
13
     located in the middle of the Bering Sea. ACSPI has a total of 1,554 tribal members, with 95% of
14

15   St. Paul’s population being ACSPI tribal members. The ACSPI, including its representative

16   sovereign governing body the Tribal Government of St. Paul, its tribal businesses, and its tribal

17   fishermen represent approximately two-thirds of St. Paul’s local economy and jobs. The ACSPI

18   employs between 80-100 year-round staff. Tribal fishermen employ an additional 75 residents.

19          43.     In the past four weeks, due to COVID-19 the community has lost its only

20   passenger airline to bankruptcy, leaving ACSPI isolated and without any means of reaching the
21   800-mile distant Alaska mainland for necessary health care and other critical needs. While the
22
     fishing market has collapsed, ACSPI has devoted almost every available Tribal government
23
     resource to responding to the pandemic threat. The financial impacts on ACSPI and its tribal
24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 15                                                                                 Seattle, WA 98104
                                                                                                    206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 16 of 42



1    members are immense, as it seeks to charter planes, establish quarantine facilities, and deal with

2    the sudden and severe economic dislocations from the COVID-19 pandemic. On April 2, 2020,
3    the President of the Tribal Government declared a COVID-19 Public Health Disaster.
4
            Navajo Nation
5
            44.     The Navajo Nation has over 309,000 enrolled members, with over 154,000
6
     residing within the Navajo Nation’s sovereign territory. The Navajo Nation’s sovereign territory
7
     extends over 15,958,151 acres of land over three states, and a total of 11 counties in Arizona,
8
     New Mexico, and Utah.
9
            45.     The Navajo Nation’s government employs 5,403 employees in three branches,
10
     Executive, Legislative, and Judicial. The Navajo Nation has a police force, jails, eleven district
11
     courts, a Supreme Court, the Navajo Environmental Protection Agency, and several Divisions,
12
     including the Divisions of Community Development, Economic Development, Finance, General
13
     Services, Human Resources, Public Safety, and Social Services, and the Departments of Dine
14

15   Education, Health, Justice, and Transportation.

16          46.     The Navajo Nation’s 110 Chapters, local governing political subdivisions of the

17   Navajo Nation, independently employ 2,427 people at the local level.

18          47.     The Navajo Nation operates a number of wholly-owned enterprises, which

19   employ 5,341 employees, including Navajo Agricultural Products Industry, Navajo Arts and

20   Crafts Enterprise, Navajo Broadcast Enterprise, Navajo Engineering and Construction Authority,
21   Navajo Gaming Enterprise, and Navajo Hospitality Enterprise.
22
            48.     Tribally-controlled schools and hospitals employ an additional 4,375 employees.
23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 16                                                                                 Seattle, WA 98104
                                                                                                    206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 17 of 42



1           49.     The Navajo Nation’s Commission on Emergency Management, with the

2    concurrence of Navajo Nation President Jonathan Nez, issued a Declaration of Emergency for
3    COVID-19 on March 11, 2020. President Nez issued two (2) Executive Orders closing the
4
     government and schools, and putting most government employees on paid administrative leave,
5
     on March 13, 2020, and March 31, 2020. The Navajo Nation’s Health Command Center has
6
     issued seven (7) Public Health Emergency Orders, between March 18 and April 17, 2020. Those
7
     Emergency Orders require all Navajo Nation residents, including non-member residents, to stay
8
     at home, not congregate in groups, and only engage in essential activities, and further closed all
9
     non-essential businesses. Those orders also required all visitors to leave the Navajo Nation and
10
     set weekly and weekend curfews. The Navajo Nation Council further passed a Resolution
11
     barring all visitors and tourists from Navajo Nation-owned roads, and another Resolution
12
     appropriating four million dollars in emergency funds to the Department of Health for the
13
     COVID-19 response, which President Nez signed into law.
14

15          50.     To enforce these actions, the Navajo Nation has mobilized police officers, natural

16   resource officers, health workers, epidemiologists, and other employees to set up a Health

17   Command Center, checkpoints at entry points, and mobile health units to respond to outbreaks of

18   COVID-19. Government employees participated in mandatory FEMA Incident Command

19   training, and have also assisted elderly and vulnerable residents to distribute masks, groceries,

20   water, and other supplies. Through these activities, the Navajo Nation has expended substantial
21   resources.
22
            51.     Despite these measures, the Navajo Nation has been ravaged by COVID-19, with
23
     1,321 confirmed cases and nearly 50 deaths as of April 21, 2020.
24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                              Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                      811 1st Ave., Suite 630
     – Page 17                                                                                  Seattle, WA 98104
                                                                                                     206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 18 of 42



1           52.     While the Navajo Nation’s government responds to the expanding COVID-19

2    crisis, its courts and jails must continue to function, and essential employees in various Divisions
3    and Departments continue to go physically to work or to work from home to keep the
4
     government operating.
5
            53.     The Navajo Nation submitted its Certification for Requested Tribal Data with the
6
     Department of the Treasury on April 17, 2020.
7
            Quinault
8
            54.     The Quinault Indian Reservation comprises over 207,000 acres of trust and fee
9
     lands located on the west coast of Washington in Grays Harbor and Jefferson Counties,
10
     Washington. Quinault has 3,227 members. Quinault is located in a rural area, where its citizens
11
     already experience significant health disparities.
12
            55.     Quinault provides government services throughout the Quinault Indian
13
     Reservation, including public safety and police services; a fire department; jail services; a civil
14

15   and criminal court system; critical infrastructure, such as water treatment plants; maintenance

16   services for government and community facilities; a health clinic and various treatment

17   programs; behavioral health and social services; natural resource protection and enforcement;

18   planning, permitting and licensing; elder support programs; early childhood and other

19   educational programs; child welfare services; housing services; and licensing, permitting, and

20   other regulatory services.
21          56.     Quinault business enterprises, both on and off the Reservation, include a casino,
22
     two hotels, a timber management company, two seafood companies, a grocery store/deli with a
23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                               Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                       811 1st Ave., Suite 630
     – Page 18                                                                                   Seattle, WA 98104
                                                                                                      206-344-8100
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1    gas station, two gas stations with associated convenience stores, a custom woodworking shop, a

2    wholesale paper company, and two drive-through smoke shops.
3            57.      As of April 20, 2020, Grays Harbor County had 12 confirmed cases of COVID-19
4
     and Jefferson County had 28 confirmed cases. In response to the COVID-19 crisis, on March
5
     13, 2020, Quinault declared a public health emergency and, on March 24, 2020, issued a stay-at-
6
     home emergency order, closed its government offices, furloughed approximately 40% of its
7
     work force and reduced the work week to 32 hours for the remaining essential employees,
8
     restricted access to the Reservation, and closed the Quinault Beach Resort & Casino and the
9
     Sweet Grass Hotel. The closure of these enterprises has almost entirely eliminated Quinault’s
10
     tax base and other revenue streams, which fund essential government services and employee
11
     salaries.
12
             58.      Quinault has incurred substantial additional expenses to address the COVID-19
13
     crisis. Quinault has mobilized its Incident Command Team, established a drive-through COVID-
14

15   19 testing site and increased testing capabilities, established various communication platforms to

16   keep the community informed, procured additional personal protective equipment (PPE), and

17   increased spending on services like food distribution programs, cleaning, and supplies. Quinault

18   is in the process of converting the Sweet Grass Hotel into a non-congregate quarantine/isolation

19   site. The emergency services provided by Quinault during the COVID-19 crisis are unbudgeted

20   expenses.
21           59.      As of April 21, 2020, Quinault’s emergency efforts have prevented any COVID-
22
     19 cases on the Quinault Indian Reservation.
23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                            Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                    811 1st Ave., Suite 630
     – Page 19                                                                                Seattle, WA 98104
                                                                                                   206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 20 of 42



1            60.       Quinault submitted the Certification for Requested Tribal Data through the

2    Department of Treasury website necessary to participate in the disbursement of CARES Act

3    Title V funding on April 17, 2020.

4            Picuris

5            61.       The Pueblo of Picuris has approximately 350 members. Picuris’s lands comprise

6    approximately 15,000 acres of restricted fee lands, plus another 200 acres of fee lands that the

7    Pueblo is in the process of transferring into trust.

8            62.       Picuris is an extremely poor Pueblo, being situated in a remote, sparsely

9    populated and mountainous area of Northern New Mexico. It operates several programs through

10   which it provides governmental services to its members, including a community health

11   representative (“CHR”) program, a senior center program, a diabetes program, and an Indian

12   Child Welfare Act program. The CHR program provides emergency and non-emergency

13   transport to health care facilities. There are no health care providers on site, and the nearest

14   doctor or hospital is the Taos-Picuris Indian Health Services Service Unit, about 30 miles away.

15   The Service Unit provides only non-emergency outpatient services. There is a small non-IHS

16   hospital in Taos, and one in Espanola, about 35 miles away, but the closest major health care

17   facility is in Santa Fe, approximately 70 miles away. Thus, if Picuris is hit by COVID-19 cases,

18   it will be hard-pressed to get infected persons to appropriate care.

19           63.       As with health care services, Picuris members must leave the Pueblo and travel 30

20   to 35 miles to shop for food, because there are no grocery stores in the community. The Pueblo,

21   through its senior center program continues to provide meals – for home delivery or pickup – to

22   52 elders. Persons who must self-quarantine in their homes in the Pueblo will have extremely

23   limited access to fresh food, and the Pueblo will likely need to step in to fill the gap in order to

24   prevent the spread of the virus.

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                        811 1st Ave., Suite 630
     – Page 20                                                                                    Seattle, WA 98104
                                                                                                       206-344-8100
               Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 21 of 42



1              64.   A significant portion of Picuris’s population has underlying medical conditions

2    that make them vulnerable to complications from COVID-19. Chief among those conditions is

3    diabetes. It is estimated that 50-70% of Picuris members over 30 years old have diabetes. The

4    diabetes program provides much needed services to help members manage their diabetes; it

5    offers exercise programs and cooking classes and operates a community garden. Right now,

6    however, the staff has been diverted from their regular functions to focus almost exclusively on

7    seeking funding and supplies to prepare the Pueblo to respond to COVID-19.

8              65.   Other programs at the Pueblo that generally do not provide direct services to tribal

9    members have also been diverted to responding to the needs of tribal members at this time. For

10   example, the Indian Child Welfare Act program has been diverted from normal operations and is

11   providing formula, diapers, and wipes to families with small children. The Forestry Department

12   is providing wood to tribal members to heat their homes, as spring comes late to the mountainous

13   region.

14             66.   Picuris business enterprises include a smoke shop/small liquor store, and a small

15   class II gaming enterprise. None of these businesses generates much revenue, but what little

16   revenue they do provide helps fund essential governmental services and employee salaries. The

17   Pueblo is in the process of constructing a gas station and convenience store, that it hopes will

18   improve its financial situation. Unemployment among the Pueblo’s members is estimated to be

19   more than 20%.

20             67.   Picuris’s federally chartered corporation, White Buffalo, Inc., is a general partner

21   in a partnership that owns a small hotel in Santa Fe. Although Picuris members are extremely

22   proud of this affiliation, this endeavor has not been a significant source of revenue or

23   employment. Now, with the hotel closed, this revenue stream is completely gone and is unlikely

24   to return any time soon.

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                              Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                      811 1st Ave., Suite 630
     – Page 21                                                                                  Seattle, WA 98104
                                                                                                     206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 22 of 42



1           68.     In response to the COVID-19 crisis, on March 17, 2020, Picuris declared a State

2    of Emergency and imposed a stay-at-home order. On April 4, 2020, Picuris declared a State of

3    Major Disaster. Picuris has closed the pueblo. Its government offices remain open, as working

4    remotely is not possible due to a lack of access to broadband Internet. The Pueblo closed its

5    gaming enterprise, and no longer receives any revenue from it. The smoke shop remains open

6    and now also offers basic foodstuff – milk, eggs, and bread, but the Pueblo’s revenue from it has

7    declined.

8           69.     As of April 21, 2020, Picuris’s emergency efforts have prevented any COVID-19

9    cases on the pueblo.

10          70.     Picuris submitted its Certification for Requested Tribal Data with the Department

11   of the Treasury on April 17, 2020.

12          Elk Valley

13          71.     Elk Valley has 85 enrolled members and approximately 425 acres of trust land

14   located in Del Norte County, California in northwestern California, on the remote Pacific Coast

15   in Northern California along the California-Oregon border approximately a seven-hour drive

16   north of San Francisco. The County is a land of wild beauty, where towering redwoods meet

17   quiet, foggy beaches. It’s also a place of economic despair where nearly one-third of residents

18   live below the poverty line.

19          72.     Elk Valley provides government services including, inter alia, civil court system;

20   housing services; emergency management; domestic violence services; education services and

21   scholarships; health insurance and funding for health services; Head Start pre-school; natural

22   resource protection; planning and licensing; transportation services; elder care programs; and

23   community programs for youth and elders.

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                            Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                    811 1st Ave., Suite 630
     – Page 22                                                                                Seattle, WA 98104
                                                                                                   206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 23 of 42



1           73.     Elk Valley’s businesses include an off-reservation bowling alley and an on-

2    reservation gaming operation. In addition, Elk Valley owns and operates a Section 17

3    corporation for operation of a rock quarry and various agricultural and property leases.

4           74.     On March 17, 2020, the Elk Valley Tribal Council adopted Resolution 2020-13

5    entitled “Elk Valley Rancheria, California, Emergency Declaration for COVID-19” thereby

6    declaring an emergency, requesting federal financial assistance, and instituting a work from

7    home program for essential employees. Concurrently, Elk Valley closed its off-reservation

8    bowling alley and its on-reservation tribal government gaming operation, thereby effectively

9    stopping its major source of revenue to provide governmental services.

10          75.     Elk Valley has approximately 180 employees and has continued to employ its

11   team members based upon the promise of relief in the CARES Act and emergency assistance

12   from FEMA. While experiencing a cessation of revenue, Elk Valley has had to incur payroll and

13   overtime costs related to mobilization of its emergency management team, continued

14   employment of team members providing services, working remotely, or effectively placed on

15   administrative leave with pay resulting in substantial financial burdens on Elk Valley.

16          76.     As of April 21, 2020, Elk Valley’s emergency efforts have prevented any

17   COVID-19 cases on the Elk Valley Rancheria.

18          77.     Elk Valley submitted the Certification for Requested Tribal Data through the

19   Department of Treasury website portal necessary to participate in the disbursement of CARES
20   Act Title V funding on April 13, 2020.
21

22

23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                            Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                    811 1st Ave., Suite 630
     – Page 23                                                                                Seattle, WA 98104
                                                                                                   206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 24 of 42



1           San Carlos Apache

2           78.     The San Carlos Apache Indian Reservation comprises approximately 1.8 million
3    acres of trust land located in eastern Arizona. The San Carlos Apache has approximately 17,000
4
     members.
5
            79.     San Carlos Apache provides government services throughout the San Carlos
6
     Apache Indian Reservation, including, inter alia, public safety and police services; jail services; a
7
     civil and criminal court system; critical infrastructure, such as water treatment plants and
8
     distribution; maintenance services for government and community facilities; public health
9
     services; behavioral health and social services; forest and natural resource protection and
10
     enforcement; planning and licensing; elder care programs; Early Head Start and Head Start
11
     programs; and community programs for youth and adults.
12
            80.     The Tribe has subsidiary economic development enterprises, including a College,
13
     a non-profit healthcare corporation that provides hospital-based services; fast food, gas stations,
14

15   and convenience stores; a hardware store; a lumber mill; two casinos, a resort hotel and golf

16   course; livestock associations; a sand and gravel company; and a telephone company. San

17   Carlos Apache’s businesses fund its government services.

18          81.     In response to the COVID-19 crisis, San Carlos Apache declared a State of

19   Emergency and took numerous mitigation measures to prevent the spread of the disease. San

20   Carlos closed hunting and fishing on the reservation, its two casinos, hotel, golf course and
21   restaurants, all of which eliminated revenues that provide the revenue stream for essential
22
     governmental services to the membership. Essential businesses remain open on a reduced
23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                              Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                      811 1st Ave., Suite 630
     – Page 24                                                                                  Seattle, WA 98104
                                                                                                     206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 25 of 42



1    schedule and with minimal staff. All non-essential employees are on paid administrative leave

2    until May 1, 2020, at which time they will be furloughed.
3           82.     San Carlos Apache has taken numerous mitigation measures to prevent the spread
4    of COVID-19, including but not limited to putting curfews in place; banning large gatherings,
5    funerals, and wakes; closing roads; requiring commuter stickers for those who live off the
6    reservation and work on the Reservation; erecting tolling stations to assess the health of
7    commuters; banning travel; implementing temperature and health checks of essential workers
8    pre-work shift. In the event of an outbreak, San Carlos Apache has identified alternate care sites
9    on the Reservation and applied for FEMA monies to provide on-going necessary emergency
10   services.
11          83.     San Carlos Apache has incurred substantial additional expenses in implementing
12   its mitigation measures and providing assistance to its Reservation residents, which includes, for
13   example, meals to elders and families with young children, community care packages, and
14   additional police safety checks on elders.
15          84.     As of April 20, 2020, San Carlos Apache’s mitigation measures have prevented
16   any COVID-19 cases on the San Carlos Apache Reservation.
17          85.     The San Carlos Apache Tribe submitted the Certification for Requested Tribal
18   Data through the Department of Treasury website necessary to participate in the disbursement of
19   CARES Act Title V funding on April 17, 2020.
20      CONGRESS APPROPRIATED CORONAVIRUS RELIEF FUNDS FOR TRIBAL
      GOVERNMENTS, WHICH DO NOT INCLUDE ALASKA NATIVE CORPORATIONS
21

            86.     Title V of the CARES Act, Section 5001, amends the Social Security Act by
22

23   creating the Coronavirus Relief Fund (“Section 601”) and appropriating $150,000,000,000 for

24   fiscal year 2020 “payments to States, Tribal governments, and units of local government.”

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 25                                                                                 Seattle, WA 98104
                                                                                                    206-344-8100
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1    Section 601(a)(1). Title V mandates that the Secretary of the U.S. Department of the Treasury

2    “shall reserve . . . $8,000,000,000 of such amount for making payments to Tribal governments.”
3    Section 601(a)(2)(B). The Secretary is required to disburse these stabilization funds to Tribal
4
     governments “not later than 30 days after the date of enactment of this section,” Section
5
     601(b)(1), that is by April 26, 2020.
6
            87.     States, Tribal governments, and units of local government must use Title V funds
7
     “to cover only those costs of the State, Tribal government, or unit of local government that— (1)
8
     are necessary expenditures incurred due to the public health emergency with respect to the
9
     Coronavirus Disease 2019 (COVID–19); (2) were not accounted for in the budget most recently
10
     approved as of the date of enactment of this section for the State or government; and (3) were
11
     incurred during the period that begins on March 1, 2020, and ends on December 30, 2020.”
12
     Section 601(d).
13
            88.     The portion of the $8,000,000,000 paid “to a Tribal government shall be the
14
     amount the Secretary shall determine, in consultation with the Secretary of the Interior and
15
     Indian Tribes, that is based on increased expenditures of each such Tribal government (or a
16
     tribally-owned entity of such Tribal government) relative to aggregate expenditures in fiscal year
17
     2019 by the Tribal government (or tribally-owned entity) and determined in such manner as the
18
     Secretary determines appropriate to ensure that all amounts available under subsection (a)(2)(B)
19
     for fiscal year 2020 are distributed to Tribal governments.” Section 601(c)(7).
20
            89.     Congress defined the three types of governments to whom the Secretary may pay
21
     relief funds. “The term ‘State’ means the 50 States, the District of Columbia, the
22
     Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Commonwealth of
23
     the Northern Mariana Islands, and American Samoa.” Section 601(g)(4). “The term ‘unit of
24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                              Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                      811 1st Ave., Suite 630
     – Page 26                                                                                  Seattle, WA 98104
                                                                                                     206-344-8100
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1    local government’ means a county, municipality, town, township, village, parish, borough, or

2    other unit of general government below the State level with a population that exceeds 500,000.”

3    Section 601(g)(2).

4           90.     Under Title V, “[t]he term ‘Tribal government’ means the recognized governing

5    body of an Indian Tribe.” Section 601(g)(5) (emphasis added). Title V further provides that

6    “[t]he term ‘Indian Tribe’ has the meaning given that term in section 4(e) of the Indian Self-

7    Determination and Education Assistance Act (25 U.S.C. 5304(e)).” Section 601(g)(1).

8           91.     The Indian Self-Determination and Education Assistance Act (ISDEAA) defines

9    “Indian tribe” as “any Indian tribe, band, nation, or other organized group or community,

10   including any Alaska Native village or regional or village corporation as defined in or

11   established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. §

12   1601 et seq.], which is recognized as eligible for the special programs and services provided by

13   the United States to Indians because of their status as Indians.” 25 U.S.C. § 5304(e) (emphasis

14   added). This definition includes “any Alaska Native village or regional or village corporation”

15   but only if it “is recognized as eligible for the special programs and services provided by the

16   United States to Indians because of their status as Indians.” Id.

17          92.     In the Federally Recognized Indian Tribe List Act of 1994, Pub. L. No. 103-454

18   (108 Stat. 4791, 4792) (“Tribe List Act”), Congress required the Secretary of the U.S.

19   Department of the Interior (“Interior”) to prepare a list of exactly those entities: “The Secretary

20   [of the Interior] shall publish in the Federal Register a list of all Indian tribes which the Secretary

21   recognizes to be eligible for the special programs and services provided by the United States to

22   Indians because of their status as Indians.” 25 U.S.C. § 5131(a) (emphasis added).

23          93.     As it does each year, on January 30, 2020, acting pursuant to the Tribe List Act,

24   Interior published its list of 574 “Indian Entities Recognized by and Eligible To Receive Services

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                        811 1st Ave., Suite 630
     – Page 27                                                                                    Seattle, WA 98104
                                                                                                       206-344-8100
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1    From the United States Bureau of Indian Affairs.” 85 Fed. Reg. 5462-01 (Jan. 30, 2020) (“This

2    notice is published pursuant to Section 104 of the Act of November 2, 1994 (Pub. L. 103-454;

3    108 Stat. 4791, 4792) . . . .”). These recognized entities include “Indian Tribal Entities Within

4    The Contiguous 48 States Recognized by and Eligible To Receive Services From the United

5    States Bureau of Indian Affairs” as well as “Native Entities Within the State of Alaska

6    Recognized by and Eligible To Receive Services From the United States Bureau of Indian

7    Affairs.” Id. at 5462, 5466 (noting “We have continued the practice of listing the Alaska Native

8    entities separately for the purpose of facilitating identification of them.”).

9           94.     While this list of 574 federally recognized Indian tribes includes more than 200

10   Alaska Native villages, including Akiak, Asa’carsarmiut and ACSPI – who, like Chehalis,

11   Tulalip, the Houlton Band, Navajo Nation, Quinault, Picuris, Elk Valley, and San Carlos

12   Apache, maintain a government-to-government relationship with the United States – it does not

13   include any Alaskan Native regional or village corporations (“ANCs”). Because ANCs are not

14   “recognized as eligible for the special programs and services provided by the United States to

15   Indians because of their status as Indians,” they are not “Indian Tribes” for purposes of Title V of

16   the CARES Act. And because ANCs are not “Indian Tribes,” they are not “Tribal governments,”

17   which Title V defines as “the recognized governing body of an Indian Tribe.” Section 601(g)(5).

18          95.     ANCs thus are not eligible to receive any Coronavirus Relief Fund payments

19   under Title V of the CARES Act. The statutory language is unambiguous, and the Secretary must

20   carry out the intent of Congress by disbursing relief funds to federally recognized Tribal

21   governments, exclusive of ANCs. The Secretary does not have discretion to disregard

22   Congress’s mandate by designating and treating ANCs as “Tribal governments.”

23          96.     This makes perfect sense. ANCs are not governments, they are for-profit

24   corporations incorporated under the laws of the State of Alaska, created pursuant to the Alaska

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 28                                                                                 Seattle, WA 98104
                                                                                                    206-344-8100
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1    Native Claims Settlement Act (ANCSA). See 43 U.S.C. § 1602(g), (j) (defining Alaska Native

2    regional corporations and village corporations). These private corporations, like other

3    corporations, are owned by their shareholders, including non-Indian shareholders. And ANCs,

4    like other corporations, have access to funding opportunities under other sections of the CARES

5    Act, whereas Tribal governments are not eligible for all of those funding sources. Congress is

6    clear that Title V relief funds are to supplement “government” budgets, not corporate coffers.

7    Section 601(d)(2).

8            97.      There are more than 230 separate ANCs, including 12 regional corporations and

9    approximately 225 village corporations.8 The 12 regional corporations alone have over 138,000

10   shareholders,9 and own scores of corporate subsidiaries, operating in all 50 states and countries

11   across the globe.10 Their business holdings include everything from construction to pipeline

12   maintenance to real estate management to telecommunications to government and military

13   contracting to environmental remediation to facilities maintenance to catering and camp services

14   to venture capital and financial management to aerospace engineering. 11

15           98.      Nor do ANCs have “recognized governing bodies.” A “recognized governing

16   body” pertains to a political body that serves the interests of “citizens,” the “body politic,” not

17   corporate shareholders. ANCs are not governments, they do not govern, and they do not provide

18

19

20   8
        Res. Dev. Council, Alaska Native Corporations, https://www.akrdc.org/alaska-native-corporations (last visited
     Apr. 15, 2020). A 13th Regional Corporation was also formed for non-resident Alaska Natives, but the current
21   status of the 13th Regional Corporation is unclear. See, e.g., ANCSA Reg’l Ass’n, About the Alaska Native Claims
     Settlement Act, https://ancsaregional.com/about-ancsa/ (last visited Apr. 15, 2020) (noting that the 13th Regional
22   Corporation was involuntarily dissolved by the State of Alaska in 2013).
     9
        ANCSA Reg’l Ass’n, Economic Impacts, https://ancsaregional.com/economic-impacts/ (last visited Apr. 15,
23   2020).
     10
        Res. Dev. Council, Alaska Native Corporations, https://www.akrdc.org/alaska-native-corporations (last visited
     Apr. 15, 2020); NANA Reg’l Corp. Inc., Overview (May 17, 2017), https://www.nana.com/regional/shareholder-
24
     relations/Shareholder-Preference/files/2017_NRC_One_Sheet_OVR_0256_1024_Part1.pdf.

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                          Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                                  811 1st Ave., Suite 630
     – Page 29                                                                                              Seattle, WA 98104
                                                                                                                 206-344-8100
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1    government services. Instead, ANCs have corporate boards of directors and are owned by

2    private individuals. See 43 U.S.C. § 1606(f) (providing that the management of regional

3    corporations “shall be vested in a board of directors”). Because ANCs do not have “recognized

4    governing bodies,” they do not qualify as “Tribal governments” under Title V and are not

5    eligible for relief funds.

6             99.      Even if such boards could be characterized as “governing bodies,” which they

7    cannot, these boards are not “recognized.” “Recognition” is an Indian law term of art that refers

8    to entities with a government-to-government relationship with the United States, which ANCs

9    simply do not have. While the Secretary of the Interior recognizes Tribal governments, they do

10   not recognize as authoritative the so-called governing bodies of ANCs. See, e.g., Indian Entities

11   Recognized by and Eligible To Receive Services From the United States Bureau of Indian

12   Affairs, 85 Fed. Reg. 5462-01, 5462 (Jan. 30, 2020) (Interior stating that “The listed Indian

13   entities are acknowledged to have the immunities and privileges available to federally recognized

14   Indian Tribes by virtue of their government-to-government relationship with the United States as

15   well as the responsibilities, powers, limitations, and obligations of such Tribes.”). ANCs openly

16   represent in their own public-facing materials that they do not maintain a government-to-

17   government relationship with the United States.12

18

19

20

21

     11
22      See Res. Dev. Council, Alaska Native Corporations, https://www.akrdc.org/alaska-native-corporations (last
     visited Apr. 15, 2020); Alaska Bus., The 2019 Top 49ers, https://digital.akbizmag.com/issue/october-2019/the-2019-
23   top-49ers/ (last visited Apr. 15, 2020).
     12
        See, e.g., ANCSA Reg’l Ass’n, Overview of Entities Operating in the Twelve Regions,
     https://ancsaregional.com/overview-of-entities/ (last visited Apr. 15, 2020) (stating that both regional corporations
24
     and village corporations “do not possess a government-to-government relationship with the federal government”).

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                            Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                                    811 1st Ave., Suite 630
     – Page 30                                                                                                Seattle, WA 98104
                                                                                                                   206-344-8100
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1      THE SECRETARY’S DESIGNATION OF ALASKA NATIVE CORPORATIONS AS
                TRIBAL GOVERNMENTS VIOLATES THE CARES ACT
2
            100.    Congress mandated that the Secretary only allocate and distribute Title V relief
3
     funds to federally recognized Tribal governments. Nevertheless, the Secretary has determined to
4

     treat ANCs as “Tribal governments” for purposes of making these payments. The Secretary’s
5

6    action is in violation of the CARES Act.

7           101.    In order to determine the amounts that would be paid to each Tribal government

8    under Title V, and as a condition of funding, the Secretary requested certain data from Tribal

9    governments on or about Monday, April 13, 2020, publishing a Certification for Requested

10   Tribal Data (“Certification”) form on the Treasury website.13

11          102.    The Certification form is clear that the Secretary has determined to treat ANCs as

12   Tribal governments for purposes of allocating and disbursing Title V Coronavirus Relief Funds.

13   The Certification asks each funding applicant to state its “Population: Total number of Indian

14   Tribe Citizens/Members/Shareholders, as of January 1, 2020” (italics added) and includes a Note

15   defining “Indian Tribe” as “any Indian tribe, band, nation, or other organized group or

16   community, including any Alaska Native village or regional or village corporation as defined in

17   or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C.

18   1601 et seq.), which is recognized as eligible for the special programs and services provided by

19   the United States to Indians because of their status as Indians.”

20          103.    The Certification also asks for “Land Base: Total number of land acres held by

21   the Indian Tribe and any tribally-owned entity (to include entities in which the Indian Tribe

22   maintains at least 51% ownership) as of January 1, 2020 (to include lands held in trust by the

23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                            Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                    811 1st Ave., Suite 630
     – Page 31                                                                                Seattle, WA 98104
                                                                                                   206-344-8100
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1    United States, owned in restricted fee status, owned in fee, or selected pursuant to the Alaska

2    Native Claims Settlement Act).” Lands “selected pursuant to the Alaska Native Claims

3    Settlement Act” are ANC-owned lands. In Alaska v. Native Village of Venetie Tribal

4    Government, 522 U.S. 520 (1998), the Supreme Court explained that through ANCSA “Congress

5    authorized the transfer of . . . approximately 44 million acres of Alaska land to state-chartered

6    private business corporations,” id. at 524, “without any restraints on alienation or significant use

7    restrictions, and with the goal of avoiding ‘any permanent racially defined institutions, rights,

8    privileges, or obligations,’” id. at 532-33 (citations omitted).14 ANC-owned lands are not Indian

9    country. Id.

10           104.     The Treasury website provides that “Governments eligible for payments must

11   provide payment information and required supporting documentation through the electronic

12   [Certification] form accessible below. To ensure payments are made within the 30 day period

13   specified by the CARES Act, governments must submit completed payment materials not later

14   than 11:59 p.m. EDT on April 17, 2020. Eligible local and Tribal governments that do not

15   provide required information—and in the case of a local government, the required certification—

16   by 11:59 p.m. EDT on April 17, 2020, may not receive any payment from the Fund.” 15

17   According to the website of the U.S. Department of the Interior, Indian Affairs, payments will be

18   paid no later than April 24, 2020, once the recipient has registered through the web portal. 16

19

20   13
        U.S. Dep’t of the Treasury, Submission Required for Receipt of Coronavirus Relief Fund Payments (Apr. 13,
     2020), https://forms.treasury.gov/caresact/stateandlocal.
21   14
        See also ANCSA Reg’l Ass’n, Overview of Entities Operating in the Twelve Regions,
     https://ancsaregional.com/overview-of-entities/ (last visited Apr. 15, 2020) (“Through ANCSA, Alaska Native
22   corporations hold title to roughly 44 million acres of land held in private corporate ownership.”).
     15
        U.S. Dep’t of the Treasury, The CARES Act Provides Assistance for State and Local Governments,
23   https://home.treasury.gov/policy-issues/cares/state-and-local-governments (last visited Apr. 16, 2020).
     16
        Indian Affairs, U.S. Dep’t of the Interior, Indian Affairs to Assist Tribes Eligible to Receive Funding from
     Treasury Under the Coronavirus Relief Fund (Apr. 14, 2020), https://www.bia.gov/as-ia/opa/online-press-
24
     release/indian-affairs-assist-tribes-eligible-receive-funding-treasury-under.

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                           Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                                   811 1st Ave., Suite 630
     – Page 32                                                                                               Seattle, WA 98104
                                                                                                                  206-344-8100
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1            105.   On April 23, 2020, Treasury posted a document to its website, titled “Coronavirus

2    Relief Fund Payments to Tribal Governments April 23, 2020,” confirming its decision to allocate

3    and pay Title V funds to ANCs as Tribal Governments. The document states “After consultation

4    with the Department of the Interior, Treasury has concluded that Alaska Native regional and

5    village corporations as defined in or established pursuant to the Alaska Native Claims Settlement

6    Act are eligible to receive payments from the Fund in the amounts to be determined by the

7    Secretary of the Treasury.” https://home.treasury.gov/system/files/136/Coronavirus-Relief-

8    Fund-Payments-to-Tribal-Governments.pdf (footnote citing ANCSA omitted).

9            106.   The Secretary’s designation of ANCs as Tribal governments for purposes of

10   allocating and distributing Title V Coronavirus Relief Funds is a final agency action for purposes

11   of judicial review under 5 U.S.C. § 704.

12                  PLAINTIFFS HAVE STANDING TO PURSUE THIS ACTION

13           107.   The Secretary’s action threatens Plaintiffs with imminent, irreparable injury.

14   Each of the Plaintiffs has submitted its Certification with all required information to the

15   Secretary to receive funds under Title V. The Secretary must distribute these funds by April 26,

16   2020.

17           108.   Once the Secretary allocates and distributes the defined, limited pool of Title V

18   Coronavirus Relief Funds to Tribal governments, inclusive of ANCs, Plaintiffs will lose any

19   access or ability to receive the portion of that limited pool illegally appropriated to the ANCs.

20   Plaintiffs are in dire need of these funds to cover the governmental costs resulting from the

21   increased and necessary expenditures associated with the COVID-19 pandemic. Plaintiffs’ most

22   recent budgets did not account for the tremendous financial strain that the pandemic would place

23   on their governmental operations.

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                              Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                      811 1st Ave., Suite 630
     – Page 33                                                                                  Seattle, WA 98104
                                                                                                     206-344-8100
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1            109.    The Chehalis Tribe is providing a broad array of unbudgeted emergency services,

2    including, for example, daily operation of its Incident Operation Center, COVID-19 clinical

3    work, delivering meals to elders and children no longer able to attend school as a result of the

4    State of Washington’s school closure, increased cleaning and sanitation supplies, accounting

5    services associated with tracking expenditures above normal budgeted activity, and planning for

6    reopening of tribal government. Chehalis has been forced to maintain all essential services for

7    its citizens despite a reservation-wide shelter-in-place State of Emergency order and the closure

8    of its tribal government and virtually all of its tribal enterprises.

9            110.    The Tulalip Tribes likewise face daunting governmental challenges as a result of

10   the COVID-19 pandemic. Tulalip has appointed a new Tulalip Health Officer, passed a

11   Communicable Disease Ordinance and instituted isolation protocol, increased its COVID-19

12   testing capabilities so that tribal members can be tested at the Tulalip Health Clinic, transformed

13   the Clinic into an acute health care clinic, directed the Clinic to obtain additional PPE, and

14   purchased an additional ambulance for the Tulalip Fire District to meet emergency health needs.

15   Tulalip has also borne increased costs for food distribution programs for children, elders and

16   general welfare payments to assist tribal members in preparing to shelter-in-place by purchasing

17   food and cleaning supplies, the payment of administrative leave and emergency leave for all

18   employees.

19           111.    The Navajo Nation has expended significant amounts of money to provide

20   resources to fight COVID-19, including appropriating four million dollars of previously

21   unbudgeted funds to the Department of Health. The Nation also has funded a Health Command

22   Center and brought additional police and other law enforcement officers to work overtime to

23   provide 24-7 coverage to enforce the Nation’s stay-at-home and curfew orders. The Nation also

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                              Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                      811 1st Ave., Suite 630
     – Page 34                                                                                  Seattle, WA 98104
                                                                                                     206-344-8100
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1    has approved Special Duty Pay for front-line responders to keep the Nation’s government

2    functioning through the COVID-19 crisis.

3           112.    The Houlton Band, Akiak, Asa’carsarmiut, ACSPI, Quinault, Picuris, Elk Valley,

4    and San Carlos Apache have also incurred unbudgeted expenses as they respond to the COVID-

5    19 pandemic and protect the health and safety of their citizens.

6           113.    The increased and necessary expenditures by Plaintiffs and other federally

7    recognized Tribal governments resulting from the devastating impacts of the COVID-19

8    pandemic are exactly the costs that Congress intended the Coronavirus Relief Funds to cover.

9    Congress did not intend for these funds to be paid to private, for-profit corporations, who seek to

10   maximize financial return for their tens of thousands of individual shareholders.

11          114.    Two scenarios illustrate the injury caused by the Secretary’s designation of ANCs

12   as Tribal governments for purposes of allocating and distributing Title V Coronavirus Relief

13   Funds. Under the first scenario, if the Secretary allocates the $8,000,000,000 equally among all

14   574 federally recognized Tribal governments, each Tribal government would receive just under

15   $14,000,000. If the Secretary includes the 237 ANCs, however, an equal allocation among all

16   811 entities would reduce that amount to less than $10,000,000, a difference of more than

17   $4,000,000 for each of the 574 federally recognized Tribal governments. Plaintiffs would thus

18   lose approximately 30% of their properly allocated share of Title V funds through the illegal

19   appropriation of those funds to ANCs.

20          115.    Under the second scenario, the Secretary may allocate the $8,000,000,000

21   considering the population, land base, employees, and expenditures of each Tribal government.

22   The data requested by the Certification form indicates that the Secretary is considering this

23   approach. Under this approach, the ANCs will have an outsized impact. Together, the ANCs

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                     811 1st Ave., Suite 630
     – Page 35                                                                                 Seattle, WA 98104
                                                                                                    206-344-8100
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1    own approximately 44 million acres of land. 17 These landholdings are equivalent to the total

2    trust land base of all federally recognized Tribal governments in the lower-48 states combined. 18

3    The 12 regional ANCs alone have over 138,000 shareholders, employ more than 43,000 people

4    worldwide, and generated more than $10.5 billion in revenues in 2018. 19 Under any formula that

5    considers ANCs’ corporate shareholders, land base, employees, and expenditures, the relief

6    funds available to federally recognized Tribal governments, including Chehalis, Tulalip, the

7    Houlton Band, Akiak, Asa’carsarmiut, ACSPI, Navajo Nation, Quinault, Picuris, Elk Valley, and

8    San Carlos Apache, will be vastly reduced, given their more modest population, land base, and

9    economic size.

10            116.     Under either scenario, because some ANCs are closely affiliated with federally

11   recognized Alaska Native villages, and many corporate shareholders are tribal members, some

12   entities in Alaska would effectively “double dip” (in some cases “triple dip”) from the limited

13   pool of funds, with the same community receiving duplicative funding – one allotted to the

14   corporation(s), and the other directly to the federally recognized Tribal government. On the

15   other hand, if the Secretary properly allocates and distributes Title V funds directly to federally

16   recognized Tribal governments only, Alaska Native villages may use their funds in partnership

17   with ANCs if they determine that is the most effective way to meet the needs of their

18   communities, consistent with the other requirements of the Act.

19

20
     17
        Res. Dev. Council, Alaska Native Corporations, https://www.akrdc.org/alaska-native-corporations (last visited
21   Apr. 15, 2020).
     18
        Office of the Special Tr. for American Indians, U.S. Dep’t of the Interior, OST Statistics and Facts,
22   https://www.doi.gov/ost/about_us/Statistics-and-Facts (last visited Apr. 15, 2020) (“The Indian trust consists of 55
     million surface acres and 57 million acres of subsurface minerals estates held in trust by the United States for
23   American Indians, Indian tribes and Alaska Natives. Over 11 million acres belong to individual Indians and nearly
     44 million acres are held in trust for Indian tribes.”).
     19
        See Res. Dev. Council, Alaska Native Corporations, https://www.akrdc.org/alaska-native-corporations (last
24
     visited Apr. 15, 2020).

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                             Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                                     811 1st Ave., Suite 630
     – Page 36                                                                                                 Seattle, WA 98104
                                                                                                                    206-344-8100
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1            117.    This Court can redress Plaintiffs’ injury caused by the Secretary by awarding

2    declaratory and injunctive relief enjoining the Secretary not to treat ANCs as Tribal governments

3    for purposes of allocating and distributing Title V Coronavirus Relief Funds, and enjoining the

4    Secretary to allocate and disburse all $8,000,000,000 reserved by Congress under Title V to

5    federally recognized Tribal governments, exclusive of ANCs, according to a reasonable formula

6    consistent with the CARES Act.

7                                             COUNT I
         (Declaratory and Injunctive Relief under 5 U.S.C. § 706 and 28 U.S.C. §§ 2201-2202)
8
             118.    Plaintiffs restate, reallege, and incorporate by reference all preceding paragraphs
9
     and allegations.
10

             119.    The APA authorizes judicial review of federal agency actions. 5 U.S.C. § 702.
11

12           120.    The APA provides that the reviewing Court shall hold unlawful and set aside

13   agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion,

14   or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). It further provides that a

15   reviewing Court shall hold unlawful and set aside agency action, findings, and conclusions found

16   to be in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5

17   U.S.C. § 706(2)(C).

18           121.    Under Title V of the CARES Act, Alaska Native regional corporations and village

19   corporations do not meet the statutory definition of “Tribal government,” do not meet the

20   statutory definition of “Indian Tribe,” and do not have a “recognized governing body.”

21           122.    By designating ANCs as Tribal governments for purposes of allocating and

22   distributing Title V Coronavirus Relief Funds, the Secretary has acted in a manner that is

23   arbitrary, capricious, an abuse of discretion, and not in accordance with law, in violation of the

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                 Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                         811 1st Ave., Suite 630
     – Page 37                                                                                     Seattle, WA 98104
                                                                                                        206-344-8100
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1    CARES Act and the APA, 5 U.S.C. §§ 701-706. Plaintiffs are entitled to an order declaring the

2    same.

3            123.    By designating ANCs as Tribal governments for purposes of allocating and

4    distributing Title V Coronavirus Relief Funds, the Secretary has acted in a manner that is in

5    excess of statutory jurisdiction, authority, or limitations, or short of statutory right, in violation of

6    the CARES Act and the APA, 5 U.S.C. §§ 701-706. Plaintiffs are entitled to an order declaring

7    the same.

8            124.    Plaintiffs are entitled to a preliminary and permanent injunction enjoining the

9    Secretary not to designate or otherwise treat ANCs as Tribal governments for purposes of

10   allocating and distributing Title V Coronavirus Relief Funds, and enjoining the Secretary to

11   allocate and disburse all $8,000,000,000 reserved by Congress to federally recognized Tribal

12   governments, exclusive of ANCs, according to a reasonable formula consistent with the CARES

13   Act.

14                                         PRAYER FOR RELEF

15           WHEREFORE, Plaintiffs respectfully request that this Court:

16           125.    Enter a declaratory judgment pursuant to 28 U.S.C. § 2201 in favor of Plaintiffs

17   that the Secretary’s designation of Alaska Native regional corporations and village corporations

18   as Tribal governments for purposes of allocating and distributing Title V Coronavirus Relief

19   Funds is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with

20   law.

21           126.    Enter a declaratory judgment pursuant to 28 U.S.C. § 2201 in favor of Plaintiffs

22   that the Secretary’s designation of Alaska Native regional corporations and village corporations

23   as Tribal governments for purposes of allocating and distributing Title V Coronavirus Relief

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                  Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                          811 1st Ave., Suite 630
     – Page 38                                                                                      Seattle, WA 98104
                                                                                                         206-344-8100
             Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 39 of 42



1    Funds is in excess of the Secretary’s statutory jurisdiction, authority, limitations, or short of

2    statutory right.

3            127.       Preliminarily and permanently enjoin the Secretary not to designate or otherwise

4    treat Alaska Native regional corporations and village corporations as Tribal governments for

5    purposes of allocating and distributing Title V Coronavirus Relief Funds, and enjoining the

6    Secretary to allocate and disburse all $8,000,000,000 reserved by Congress to federally

7    recognized Tribal governments, exclusive of Alaska Native regional corporations and village

8    corporations, according to a reasonable formula consistent with the CARES Act.

9            128.       Vacate the Secretary’s decision designating Alaska Native regional corporations

10   and village corporations as Tribal governments for purposes of allocating and distributing Title

11   V Coronavirus Relief Funds, and remand to Treasury to determine in an expedited manner an

12   appropriate allocation to federally recognized Indian Tribes of all remaining Title V funds (i.e.,

13   those funds previously allocated to Alaska Native regional corporations and village corporations)

14   that, as of the date of the Court’s order, have not been paid to federally recognized Tribal

15   governments.

16           129.       Award Plaintiffs their reasonable attorney’s fees, costs and such other relief as the

17   Court deems just and appropriate.

18

19

20

21

22

23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                                 Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                                         811 1st Ave., Suite 630
     – Page 39                                                                                     Seattle, WA 98104
                                                                                                        206-344-8100
           Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 40 of 42



1               Dated this 16th day of June, 2020.

2
                                             KANJI & KATZEN, P.L.L.C.
3
                                             /s/ Riyaz A. Kanji
4                                            Riyaz A. Kanji, D.C. Bar # 455165
                                             303 Detroit Street, Suite 400
5
                                             Ann Arbor, MI 48104
                                             Telephone: 734-769-5400
6
                                             Email: rkanji@kanjikatzen.com
7
                                             /s/ Cory J. Albright
8                                            Cory J. Albright, D.C. Bar Application Pending
                                             WSBA # 31493
9                                            811 1st Avenue, Suite 630
                                             Seattle, WA 98104
10                                           Telephone: 206-344-8100
                                             Email: calbright@kanjikatzen.com
11
                                             Co-Counsel for the Confederated Tribes of the
12                                           Chehalis Reservation and the Tulalip Tribes
13                                           Counsel for the Houlton Band of Maliseet Indians,
                                             Akiak Native Community, Asa’carsarmiut Tribe
14
                                             and Aleut Community of St. Paul Island
15

16                                           CONFEDERATED TRIBES OF THE CHEHALIS
                                             RESERVATION
17
                                             /s/ Harold Chesnin
18                                           Harold Chesnin, WSBA # 398
                                             Lead Counsel for the Tribe
19                                           420 Howanut Road
                                             Oakville, WA 98568
20                                           Telephone: 360-529-7465
                                             Email: hchesnin@chehalistribe.org
21

22                                           TULALIP TRIBES
23
                                             /s/ Lisa Koop Gunn
                                             Lisa Koop Gunn, WSBA # 37115
24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                     Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                             811 1st Ave., Suite 630
     – Page 40                                                                         Seattle, WA 98104
                                                                                            206-344-8100
           Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 41 of 42



1                                       Tulalip Tribes, Office of the Reservation Attorney
                                        6406 Marine Drive
2                                       Tulalip, WA 98271
                                        Telephone: 360-716-4550
3                                       Email: lkoop@tulaliptribes-nsn.gov
4

                                        THE NAVAJO NATION
5

6                                       /s/ Paul Spruhan
                                        Doreen McPaul, AZ Bar No. 021136
7                                       Attorney General
                                        Paul Spruhan, D.C. Bar No. AZ0017
8                                       Assistant Attorney General
                                        P.O. Box 2010
9                                       Window Rock, AZ 86515
                                        Telephone: (928) 871-6345
10                                      Email: dmcpaul@nndoj.org
                                        Email: pspruhan@nndoj.org
11
                                        ROTHSTEIN DONATELLI LLP
12
                                        /s/ Eric Dahlstrom
13
                                        Eric Dahlstrom, AZ Bar No. 004680
                                        April E. Olson, AZ Bar No. 025281
14
                                        1501 West Fountainhead, Suite 360
15                                      Tempe, AZ 85282
                                        Telephone: (480) 921-9296
16                                      Email: edahlstrom@rothsteinlaw.com
                                        Email: aeolson@rothsteinlaw.com
17
                                        Richard W. Hughes, NM Bar No. 1230
18                                      Donna M. Connolly, NM Bar No. 9202
                                        Reed C. Bienvenu, NM Bar No. 147363
19                                      1215 Paseo de Peralta
                                        Santa Fe, NM 87505
20                                      Telephone: (505) 988-8004
                                        Email: rwhughes@rothsteinlaw.com
21                                      Email: dconnolly@rothsteinlaw.com
                                        Email: rbienvenu@rothsteinlaw.com
22
                                        Counsel for Pueblo of Picuris
23

24
                                        Co-Counsel for the Navajo Nation

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                 Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                         811 1st Ave., Suite 630
     – Page 41                                                                     Seattle, WA 98104
                                                                                        206-344-8100
           Case 1:20-cv-01002-APM Document 93 Filed 06/17/20 Page 42 of 42



1

2                                       QUINAULT INDIAN NATION
3                                       /s/ Derril B. Jordan
                                        Derril B. Jordan, D.C. Bar #470591
4
                                        Quinault Office of the Attorney General
                                        136 Cuitan Street
5
                                        Taholah, WA 98587
6                                       Telephone: 360.276-8215, Ext. 1406
                                        Email: derril.jordan@quinault.org
7

8                                       ELK VALLEY RANCHERIA, CALIFORNIA

9                                       /s/ Bradley G. Bledsoe Downes
                                        Bradley G. Bledsoe Downes, CA Bar No. 176291
10                                      General Counsel
                                        2332 Howland Hill Road
11                                      Crescent City, CA 95531
                                        Telephone: 707.465.2610
12                                      Email: bdownes@elk-valley.com
13
                                        SAN CARLOS APACHE TRIBE
14

15                                      /s/ Alexander B. Ritchie
                                        Alexander B. Ritchie, AZ Bar # 019579
16                                      Attorney General
                                        San Carlos Apache Tribe
17                                      Post Office Box 40
                                        16 San Carlos Avenue
18                                      San Carlos, AZ 85550
                                        Telephone: (928) 475-3344
19                                      Email: alex.ritchie@scat-nsn.gov

20

21

22

23

24

25
     [PROPOSED] SECOND AMENDED COMPLAINT FOR                                Kanji & Katzen, P.L.L.C.
     DECLARATORY AND INJUNCTIVE RELIEF                                        811 1st Ave., Suite 630
     – Page 42                                                                    Seattle, WA 98104
                                                                                       206-344-8100


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