Memorandum in Support of Joint Motion for Summary Judgment — Chehalis v. Mnuchin (D.D.C., Doc. 76-2)

Summary

Memorandum in support of a joint motion for summary judgment, Document 76-2, filed 05/29/20 in consolidated cases including Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002-APM, in the U.S. District Court for the District of Columbia. The Cheyenne River Sioux Tribe, Rosebud Sioux Tribe, Oglala Sioux Tribe, Nondalton Tribal Council, Arctic Village Council, Native Village of Venetie Tribal Government, Navajo Nation and Ute Indian Tribe argue that Alaska Native Claims Settlement Act corporations are not "Tribal governments" and are not entitled to CARES Act Title V funds. They ask the Court to grant summary judgment and to direct the Defendant to distribute the remainder of the Title V funds to federally recognized Tribal governments.

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“Memorandum in Support of Joint Motion for Summary Judgment — Chehalis v. Mnuchin (D.D.C., Doc. 76-2).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/document-confederated-tribes-of-the-chehalis-reservation-et-al-v-mnuch-643a2523d3/, SHA-256 88c1ea2c4665ef0039d0a2d9174566dbba976abb561c7b87d62471b98bd9f83a.

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Case 1:20-cv-01002-APM Document 76-2 Filed 05/29/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CONFEDERATED TRIBES OF THE
CHEHALIS RESERVATION et al.,

Plaintiffs,

v. Case No. 1:20-cv-01002-APM

STEVEN MNUCHIN, in his official capacity
as the Secretary of the Treasury,

Defendant.
CHEYENNE RIVER SIOUX TRIBE et al.,

Plaintiffs,

v. Case No. 1:20-cv-1059-APM

STEVEN MNUCHIN, in his official capacity
as the Secretary of the Treasury,

Defendant.
UTE INDIAN TRIBE OF THE UINTAH
AND OURAY RESERVATION,

Plaintiff,

v. Case No. 1:20-cv-01070-APM

STEVEN MNUCHIN, in his official capacity CONSOLIDATED CASES
as the Secretary of the Treasury,

Defendant.

PLAINITFFS CHEYENNE RIVER SIOUX TRIBE’S, ROSEBUD SIOUX TRIBE’S,
OGLALA SIOUX TRIBE’S, NONDALTON TRIBAL COUNCIL’S, ARCTIC VILLAGE
COUNCIL’S, NATIVE VILLAGE OF VENETIE TRIBAL GOVERNMENT’S, NAVAJO
NATION’S, AND UTE INDIAN TRIBE OF THE UINTAH AND OURAY INDIAN
RESERVATION’S MEMORANDUM IN SUPPORT OF
JOINT MOTION FOR SUMMARY JUDGMENT

1
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INTRODUCTION

On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic

Securities Act (“CARES Act”), H.R. 748, 116th Cong. (2020), to respond to the national COVID-

19 pandemic, appropriating roughly $2 trillion to provide emergency relief to the Nation. The

CARES Act is broad and includes specific relief for, among others, large corporations, small

businesses, individuals, and, importantly, State, Tribal, and local governments. Specifically, Title

V of the CARES Act sets aside $150 billion for State, Tribal, and local governments to ensure that

these governments can adequately provide the government services necessary to respond to the

crisis during a time when regular sources of government revenue are drying up. Title V

appropriates $8 billion for the Nation’s 574 federally recognized Tribes. Despite the clear directive

to distribute Title V monies to “Tribal governments,” a term the bill uses 15 times in just over

three pages, Defendant Steven Mnuchin, Secretary of the Department of the Treasury, decided

instead to allocate Title V monies to Alaska Native Claims Settlement Act (“ANCSA”)

corporations (“ANCs”), for-profit, non-governmental entities established as part of the land

settlement bill in 1971.

But these ANCs are not Tribal governments under any measure. For virtually every

corporation that has intervened or filed an amicus brief or declaration in this case, there is a

federally recognized Tribe in that same location entitled to that relief. By attempting to benefit

from Title V, these ANCs are directly competing with, and taking resources from, federally

recognized Tribes—something that has never been countenanced in any case, statute, or regulation.

From the time they were established in 1971, ANCs have always been private landholders, and

are, in the words of the Supreme Court, “state-chartered and state-regulated private business

corporations.” Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 534 (1998). No court

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has ever held that ANCs are “Tribal governments” or have “recognized governing bodies.” The

primary drafter of ANCSA, Senator Ted Stevens of Alaska, designed ANCs this way and said it

best himself when, in the midst of debating ANCSA on December 14, 1971, he assured Congress

that ANCs “are not government bodies.” 117 Cong. Rec. 46,964 (daily ed. Dec. 14, 1971)

(statement of Senator Stevens).

Because it is clear that ANCs are not governments, the Court can stop there and need not

consider the secondary question of whether ANCs are “Indian Tribes” under the Indian Self

Determination and Education Assistance Act (“ISDEAA”); ANCs are not governments and

therefore not entitled to Title V funds. This brief covers just these two issues and incorporates by

reference the Statement of Facts and Sections II.B, III.A, III.B.2, III.C and IV of the Chehalis

Plaintiffs’ brief. The Cheyenne River Plaintiffs, the Navajo Nation, and the Ute Indian Tribe

respectfully request that the Court grant summary judgement in their favor and an issue an order

directing Defendant to distribute the remainder of the Title V funds to federally recognized Tribal

governments.

ARGUMENT

ANCs are not entitled to CARES Act Title V funds because they are not “Tribal

governments.” Title V reserved $8 billion of that appropriation “for making payments to Tribal

governments.” H.R. 748 § 601(a)(2)(B). The CARES Act defines “Tribal government” as “the

recognized governing body of an Indian tribe.” Id. § 601(g)(5).1 The CARES Act further defines

“Indian tribe” as it is defined in Section 4(e) of ISDEAA. Id. § 601(g)(1). ANCs are not entitled

1
Each reference to “Tribal government” throughout Title V appears beside, and in the same
context as, other political governing entities that exercise varying degrees of inherent sovereignty:
“States,” and other “units of local government,” including “the District of Columbia, the
Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Commonwealth of
the Northern Mariana Islands, and American Samoa.” H.R. 748 § 601(a).

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to Title V funds because none are a “recognized governing body of an Indian tribe” entitled to Title

V funds. C.f. Great Lakes Comnet, Inc. v. Fed. Commc’ns Comm’n, 823 F.3d 998, 1003 (D.C. Cir.

2016) (the canon against surplusage “dictates that when construing a statute courts ‘give effect, if

possible, to every clause and word.’” (citation omitted)). ANCs simply cannot meet this definition

because they do not have recognized governing bodies. Accordingly, they are not Tribal

governments entitled to Title V funds.

In this case, Defendants will likely assert that every ANC should get CARES Act funding

because ISDEAA defines “Indian tribe” as

any Indian tribe, band, nation, or other organized group or community, including
any Alaska Native village or regional or village corporations defined in or
established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688),
which is recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.

25 U.S.C. § 5304(e).

As discussed in greater detail below, the United States has consistently interpreted

ISDEAA to mean that ANCs can be treated as “Indian tribe” for limited purposes, and they receive

that treatment if, and only if, there is no eligible federally recognized Indian Tribe that can provide

the specific services at issue. Thus, ISDEAA’s definition of “Indian tribe” has never conferred

upon ANCs, as corporate entities, a government status or attributes of sovereignty. Instead, it

confers on them limited contracting authority to carry out certain programs and services on behalf

of Native people under specific and limited circumstances. It is federally recognized Tribes that

are the governments; it is federally recognized Tribes that are performing essential governmental

services in Alaska and in the Lower 48; and it is solely to federally recognized Tribes that Title V

funding for those government services can be distributed.

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I. ANCS ARE NOT ENTITLED TO CARES ACT FUNDS BECAUSE THEY ARE NOT TRIBAL
GOVERNMENTS.

A. Tribal Governments Provide Government Services and Have Expended Large
Sums to Combat COVID-19.

The provision of governmental services—such as the administration of courts, health and

wellness programming, police and public safety, general welfare and assistance, water and sewage,

fire protection, schools, sanitation and trash, roads, land use and community planning, and various

regulatory and management services—is the fundamental, defining function of any state, Tribal or

local government.2

In Alaska it is the federally-recognized, sovereign Alaska Native Tribes, not ANCs, that

provide myriad governmental services to their communities as an exercise of their Tribal

sovereignty, including medical care,3 housing programs,4 natural resource programs,5 Tribal

2
See U.S. Dep’t of the Treasury, Guidance to Tribes for Completing Supplemental Request for
Information, available at https://home.treasury.gov/system/files/136/Tribal-Employment-and-
Expenditure-Submission-Instructions.pdf (last visited May 29, 2020) (“Governmental
expenditures include, but are not exclusive of, general government, public safety, health services,
wellness services, substance abuse, general welfare and assistance, community services, cultural
programs, education, recreation, housing, economic development, planning and development,
sanitation, judicial, and similar activities.”); see also the Rosebud Sioux Tribe description of their
extensive government functions and extensive civil and criminal code at Herman Decl. ¶¶ 5-6 and
the Cheyenne River Sioux Tribe description of their government functions and extensive civil and
criminal code at Frazier Decl. Ex. A,G,H.
3
See, e.g., the Kenaitze Indian Tribe’s Dena’ina Wellness Center which provides medical, dental,
behavioral health, chemical dependency, wellness, physical therapy, optometry, pharmacy
support, and traditional healing services in a 52,000-square-foot facility. About the Dena’ina
Wellness Center, KENAITZE INDIAN TRIBE, https://www.kenaitze.org/denaina-wellness-center/
(last visited May 29, 2020).
4
See, e.g., Ketchikan Indian Community’s housing authority, which provides a rental program,
home improvement assistance program, elder energy assistance program, among others. Housing,
KETCHICAN INDIAN CMTY., http://www.kictribe.org/housing (last visited May 29, 2020).
5
See, e.g., Resource Protection, SITKA TRIBE OF ALASKA, http://www.sitkatribe.org/pages/tribal-
services-resource-protection-programs (last visited May 29, 2020).

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courts,6 child welfare and family assistance programs,7 and transportation programs.8 Some Tribes

choose to not run their own individual programs but to instead join together and compact under

ISDEAA with Tribal regional non-profit consortia and Tribal health organizations. It is the

federally recognized, sovereign Tribes and Tribes’ duly authorized regional non-profit Tribal

consortia and non-profit Tribal health organizations (“THO”)9 that are overwhelmingly on the

6
See, e.g., Tribal Court, ORGANIZED VILL. OF KAKE, http://www.kake-nsn.gov/tribal-court.html
(last visited May 29, 2020).
7
See, e.g., Central Council of Tlingit & Haida Indian Tribes of Alaska’s extensive Family Services
offerings, which include child care assistance, child support assistance, a child welfare unit,
counseling services, suicide prevention, Tribal assistance for needy families, and other wellness
programs. Family Services, CENT. COUNCIL TLINGIT & HAIDA INDIAN TRIBES OF ALASKA,
http://www.ccthita.org/services/family/overview/index.html (last visited May 29, 2020).
8
See, e.g., the extensive transportation program run by the Chickaloon Native Village.
Transportation, NAY’DINI’AA NA’ KAYAX’ (CHICKALOON NATIVE VILL.),
https://www.chickaloon-nsn.gov/transportation-department/ (last visited May 29, 2020).
9
Tribal regional non-profits and non-profit THOs are not to be confused with ANCs. In Alaska,
such non-profit entities predate ANCSA and exist to enable Alaska Tribes to take advantage of
efficiencies of scale in providing government services for their member Tribes, including social,
educational, and health services. The non-profits are almost always a consortium of federally
recognized Tribes. They exist only by express authorization of the Tribes. Their boards of directors
are comprised of representatives of the Tribal governments that they serve. All actions taken by
the consortiums are taken at the direction of the elected representatives of the federally recognized
Tribes that constitute their board of directors. These consortia are authorized as the Tribal authority
to compact government to government with the United States for federal programs and functions
through the resolutions of each member Tribe. The consortia are accountable to all the
beneficiaries of their programs through this representative structure and, unlike ANCs, as
organizations of Tribes they enjoy the privileges of their member Tribes such as immunity from
suit. See, e.g., Barron v. Alaska Native Tribal Health Consortium, 373 F. Supp. 3d 1232, 1240 (D.
Alaska 2019) (“While Alaska Native Corporations are owned and managed by Alaska Natives,
they are distinct legal entities from Alaska Native tribes. . . . Unlike an Alaska Native Corporation,
[the non-profit tribal health consortium] is an entity created and controlled by Alaska Native tribes
that promotes tribal self-determination and fulfills governmental functions.” (footnotes omitted));
see also ECF 71, AR008 Letter from Alaska Delegation at 1-2, 3-4 (describing the important role
of tribal consortia in the delivery of services); ECF 71 AR009 at 123 (same). Similarly, Tribal
governments in Alaska and the Lower 48 may approve other types of tribal organizations to receive
ISDEAA funds from the federal government. 25 U.S.C. §§ 5321(a), 5304(l). Such non-
governmental Tribal organizations include non-profit health boards approved by the Navajo
Nation to operate Indian Health Service hospitals through ISDEAA contracts. See, e.g., Main,
FORT DEFIANCE INDIAN HEALTH BD., INC., www.fdihb.org/main (last visited May 29, 2020).

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front lines of protecting Alaska Native people from the COVID-19 pandemic. See 25 U.S.C. §

5304(e), (l); see also DAVID CASE & DAVID VOLUCK, ALASKA NATIVES AND AMERICAN LAWS 178

(2d ed. 2012) (explaining that it is the non-profit Tribal consortia that are the “service delivery

vehicles,” not the ANCs).

In the hands of Tribal governments, both in Alaska and in the Lower 48, CARES Act funds

are being used to protect lives through emergency pandemic response services, preventative

governmental measures, and patient care. For example, the Cheyenne River Sioux Tribe is

purchasing and providing health care supplies and PPE, as well as and increasing emergency food

distribution to its members. Nelson Decl. ¶ 4. Importantly, moreover, the Cheyenne River Sioux

Tribe has expended significant funds on exercising sovereign governmental powers delegated by

the Tribe to the Tribal government in the Tribe’s Constitution to protect the health and welfare of

Reservation residents, both members and nonmembers. Frazier Decl. at Ex. A. For instance, the

Cheyenne River Sioux Tribe has hired more than 150 emergency deputies to man 24-hour health

and safety checkpoints at all entrances to the Cheyenne River Sioux Reservation, where the Tribe

gathers health information, performs contact tracing, and enforces proper travel across the

Reservation. Id. ¶¶ 15-20. The Cheyenne River Sioux Tribe has also used significant government

funds in developing and enforcing civil regulations that govern both Tribal members and

nonmembers on the Reservation, including mandatory curfew, stay-at-home orders, non-essential

business closures, and travel restrictions. Id. The Cheyenne River Sioux Tribe and its Tribal courts

have authority to enforce these regulations as an exercise of the Tribe’s sovereignty and as set forth

in both their Tribal Constitution, as well as the Tribe’s duly enacted Law and Order Code and

Rules of Civil Procedure. Id. at Ex. A, G, H.

Similarly, the Rosebud Sioux Tribe has been dealing with the pandemic on a daily basis

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since its onset in March 2020. Its first order of business was to issue a travel ban to certain cities

and states. Then, on March 25, 2020, President Bordeaux issued an order instituting a reservation-

wide curfew, ordering a shelter-in-place, limiting restaurants to take-out, limiting the size of

gatherings and closing businesses to non-residents. In order to protect Tribal members against

further infection, the Tribe has also instituted checkpoints at its own expense. Herman Decl. ¶¶ 9,

11-12.

Likewise, the Nondalton Tribal Council, Arctic Village Council, and Native Village of

Venetie Tribal Government have exercised their inherent sovereign powers as Tribal governments

to impose preventative measures and protocols to protect their communities, including travel bans

or restrictions, mandatory self-quarantine orders, and strict social distancing guidelines. Alexie

Decl. ¶¶ 7-9; Thumma Decl. ¶¶ 8-10; Yatlin Decl. ¶¶ 7-8. Each Tribe has also provided services

to assist their Tribal members and communities in response to the COVID-19 pandemic. Alexie

Decl. ¶ 10; Thumma Decl. ¶¶ 10-11; Yatlin Decl. ¶¶ 9-10. Facing a shortage of housing in the

community, Native Village of Venetie Tribal Government has prioritized setting up homes for

people to stay during the mandatory fourteen-day quarantine it imposed on all individuals returning

to the community. Thumma Decl. ¶ 10. All three villages are accessible only by small, single

engine airplanes and have faced significant challenges in securing adequate food and other supplies

as a result of limitations on travel. Alexie Decl. ¶ 10; Thumma Decl. ¶¶ 8, 11; Yatlin Decl. ¶¶ 6-7.

For instance, Nondalton Tribal Council operates a food bank and the Tribe has expended

significant resources keeping the shelves stocked to meet increased need. Alexie Decl. ¶ 10.

Nondalton Tribal Council has not yet received CARES Act funding and without additional funding

the Tribe may not be able to continue meeting the increased demand for services. Id. Arctic Village

Council is hiring Tribal members to provide subsistence foods to each household in the village and

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harvest firewood to provide heat, as heating fuel is prohibitively expensive. Yatlin Decl. ¶¶ 9-10.

Every dollar taken away from Tribes’ CARES Act allocations diminishes the resources

available to these and other Tribal governments, and in turn diminishes their ability to prevent or

control infection on behalf of their citizens.

B. ANCSA Created ANCs but Did Not Divest Alaska Tribes of Their
Governmental Status.

Enacted in 1971, ANCSA was a lands settlement bill that: (1) extinguished aboriginal lands

claims in exchange for approximately $1 billion and 45.7 million acres of land; (2) established

village and regional ANCs to receive this money and land to be conveyed under the terms of the

settlement; and (3) authorized stock in those ANCs to be issued to eligible Alaska Natives. 43

U.S.C. §§ 1603, 1605, 1606, 1607; see also CASE & VOLUCK, supra, at 171. In short, ANCSA

“converted the communal, aboriginal claims of the Alaska Natives into individual private property,

represented by shares of stock” in village and regional ANCs. CASE & VOLUCK, supra, at 167.

ANCSA’s purpose was to bring clarity to land ownership and pave the way for oil development

by extinguishing any aboriginal land claims that might hold up construction for the Trans-Alaska

Pipeline. See id. at 155-57 (describing the land freeze and its impacts on the Alaska pipeline).

Previous filings in this case perpetuate a dangerous narrative that ANCSA supplanted

actual Tribal governments in Alaska with ANCs. In previous briefing, Intervenors ANCSA

Regional Association went so as far as to claim, incorrectly, that the United States exercises its

trust responsibility to Alaska Natives through ANCs. ECF 24, ARA Amici Br. at 14. Nothing could

be farther from the truth. The text itself contradicts this:

[T]he settlement should be accomplished rapidly, with certainty, in conformity with
the real economic and social needs of Natives, without litigation, with maximum
participation by Natives in decisions affecting their rights and property, without
establishing any permanent racially defined institutions, rights, privileges, or
obligations, without creating a reservation system or lengthy wardship or

9
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trusteeship, and without adding to the categories of property and institutions
enjoying special tax privileges or to the legislation establishing special
relationships between the United States Government and the State of Alaska[.]

43 U.S.C. § 1601(b) (emphasis added). Furthermore, while “ANCSA extinguished all aboriginal

title and claims to Alaska land and revoked all existing Indian reservations[,] . . . [it] did not divest

Alaska Native villages of their sovereign powers.” Alaska v. Native Vill. of Tanana, 249 P.3d 734,

743 (Alaska 2011) (citing John v. Baker, 982 P.2d 738, 747-48 (Alaska 1999)); CASE & VOLUCK,

supra, at 177 (explaining that ANCSA “did not abolish the preexisting tribal governments”).

As described above, Tribal governments are sovereigns that enjoy similar powers and

immunities as state and local governments, including both civil and criminal jurisdiction over

conduct arising within their territory and the power to establish courts, pass and enforce

ordinances, levy taxes, and regulate commerce. See generally COHEN’S HANDBOOK OF FEDERAL

INDIAN LAW § 4.01, at 206-22 (Nell Jessup Newton ed., 2015, sup. 2019) (detailing nature of Tribal

sovereignty and powers). Recognized Tribal governments are entitled to immunities and

privileges, such as immunity from federal income tax and sovereign immunity from suit. See, e.g.,

25 C.F.R. § 83.2.

ANCs have none of the responsibilities, powers, limitations, or obligations of federally

recognized Tribes, and they cannot exercise governing powers or jurisdiction over anyone, not

even their shareholders. Unlike recognized Tribal governments, ANCs’ only obligation is to their

boards of directors and shareholders. Accord 16 U.S.C. §§ 1606(d) (ANCs “shall be incorporated

under the laws of Alaska”), 1607(a); Alaska Stat. § 10.06.450(b) (“A director shall perform the

duties of a director . . . in good faith, in a manner the director reasonably believes to be in the best

interest of the corporation.”).10 Since their creation nearly fifty years ago, many ANCs have

10
Though ANCs may work in partnership with the federally recognized Tribes in their region,

10
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operated various programs that benefit their shareholders, including scholarship programs, burial

assistance, dividends, and life insurance assistance. See, e.g., ECF 45-1 to 45-24. While no doubt

beneficial, these programs do not covert ANCs into governments or equate them to Tribal

governments in any way. Congress intended the Title V CARES Act stabilization funds to be

allocated to “Tribal governments,” not “state-chartered and state regulated private business

corporations,” Venetie, 522 U.S. at 534, with shareholders that include non-Indians. 43 U.S.C. §§

1606(h)(2), (h)(3)(D), 1607(c).

C. Federal Courts Have Routinely Rejected Arguments that ANCs Are Tribal
Governments.

While ANCs may be treated as “Indian tribe[s]” for limited purposes under the ISDEAA,

this does not transform ANCs into Tribal governments, and they do not mean that ANCs possess

attributes of Tribal sovereignty or that they are “recognized governing bodies” entitled to Title V

funds. The federal government has recognized the important differences between Tribes and

ANCs, stating affirmatively that ANCs “are not governments” and “lack tribal status in a political

sense.” Indian Entities Recognized and Eligible to Receive Services from the United States Bureau

of Indian Affairs, 56 Fed. Reg. 54,364, 54,364-65 (Oct. 21, 1993). Likewise, no court has ever

held that ANCs are Tribal governments or possess recognized governing bodies.

For example, in Seldovia Native Association v. Lujan, the United States Court of Appeals

for the Ninth Circuit held that the village ANC “is not a governmental unit with a local governing

board organized under the Indian Reorganization Act[.] . . . Because [the village ANC] is not a

they are not Tribally-controlled or Tribally-designated. See, e.g., ECF 45-15 at 1 (confirming the
Tyonek Native Corporation “is a separate and legally distinct entity with no formal relationship to
the Native Village of Tyonek”); ECF 71, AR009 at 122 (stating ANC Bristol Bay Native
Corporation “has relatively deep pockets but not the direct connection with the local tribal
governments” that the regional Tribal consortium has).

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governing body, it does not meet one of the basic requirements of an Indian tribe.” 904 F.2d 1335,

1350 (9th Cir. 1990) (citations omitted). In Eaglesun Systems Products, Inc. v. Association of

Village Council Presidents, the Northern Oklahoma District Court held that even though ANCs

“are recognized as tribes for limited purposes, . . . they do not possess key attributes of an

independent and self-governing Indian tribe . . . [and] are not governing bodies.” No. 13-CV-0438-

CVE-PJC, 2014 WL 1119726, at *6 (N.D. Okla. Mar. 20, 2014) (citation omitted). And in Pearson

v. Chugach Government Services Inc., the Delaware District Court observed that “ANCs are not

federally recognized as a ‘tribe’ when they play no role in tribal governance.” 669 F. Supp. 2d 467,

469 n.4 (D. Del. 2006) (citation omitted). The court was unable to “find [any] evidence to suggest[]

that [ANCs] are governing bodies.” Id.; see also CASE & VOLUCK, supra, at 177 (“At times the

tribes and corporations have seemed at odds as the corporations are defined as ‘tribes’ in some

post-ANCSA program and service legislation. It is clear, though, that as a matter of common law

that the corporations are not tribes in the political sense of the term, nor are they recognized as

such.”); c.f. Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 213 (4th Cir. 2007) (“While

the sovereign immunity of Indian tribes ‘is a necessary corollary to Indian sovereignty and self-

governance,’ . . . Alaska Native corporations are not comparable sovereign entities[.]” (internal

citations omitted)). As a matter of law, ANCs are not Tribal governments and do not possess

recognized governing bodies and attributes of Tribal sovereignty entitling them to Title V funds.

That they may provide programs beneficial to their shareholders does not change their legal status.

The assertion that ANCs are Tribal governments is belied by the very purpose and structure

of ANCSA. ANCSA, and the creation of ANCs, explicitly rejects the notion that ANCs possess

governmental functions or attributes of Tribal sovereignty. ANCSA established ANCs as “state-

chartered and state regulated private business corporations,” Venetie, 522 U.S. at 534, “governed

12
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by state law, not tribal sovereigns.” Nenana Fuel Co. v. Native Vill. of Venetie, 834 P.2d 1229,

1240 (Alaska 1992) (Moore, J., concurring) (emphasis added). In creating ANCs, ANCSA “did

not abolish preexisting tribal governments.” CASE & VOLUCK, supra, at 177; Tanana, 249 P.3d at

743 (citing John, 982 P.2d at 747-48) (ANCSA “did not divest Alaska Native villages of their

sovereign powers.”). ANCSA established ANCs to engage in “profitmaking” for Alaska Natives

while leaving undisturbed Tribal governments to continue to function and provide governmental

services to their citizens and members. Nenana, 834 P.2d at 1240 (quoting 117 Cong. Rec. 46,964

(daily ed. Dec. 14, 1971) (statement of Senator Stevens) (“[The ANCs] are not governmental

entities, but they are part of a profitmaking picture for the native people of Alaska for the future. .

. . They are not government bodies.”); CASE & VOLUCK, supra, at 48 (ANCs “established through

the state do not have either defined or implied powers of social or political governance”).

ANCs themselves have disclaimed government status;11 yet, they now seek to clothe

themselves under the cloak of Tribal sovereignty to benefit from a program expressly created to

aid Tribal governments in a time of unprecedented crisis. 12 The Court must deny any such effort

and ensure that Title V relief funds are provided to their intended beneficiaries: Tribal

governments.

II. ANCS MAY BE TREATED AS A TRIBE UNDER ISDEAA ONLY FOR LIMITED PURPOSES IF
THERE IS NO TRIBE THAT CAN PERFORM THE SERVICES, BUT THEY ARE NOT
GOVERNMENTS FOR PURPOSES OF THE CARES ACT.

11
Indeed, ANCs have themselves for years vigorously argued that they are not Tribal governments
and that they do not exercise governmental functions. See e.g., Comments of Arctic Slope Reg’l
Corp., 2013 WL 3096205, *1 (May 31, 2013) (“a governing body of Alaska Natives would
constitute an Indian tribal government, [] an [ANC] would not because it does not exercise
governmental functions”) (emphasis added).
12
Excluding ANCs from Title V relief will not exclude ANCs from all CARES Act relief. ANCs
still have access to the full suite of assistance offered to private business under the CARES Act,
including but not limited to the Paycheck Protection Program and the Employee Retention Credit.
H.R. 748 §§ 1102, 2301.

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The Court does not need to examine ISDEAA and whether ANCs meet its definition of

Indian Tribe, as they are expressly prohibited from receiving Title V funds under the CARES Act’s

definition of “Tribal government.” Nonetheless, ANCs’ treatment as Indian Tribes under ISDEAA

is for a limited purpose and does not transform them into Tribal governments or confer on them

sovereign powers. ANCs may qualify under ISDEAA’s definition of “Indian tribe” only as a stop-

gap to ensure critical services are provided to Alaska Natives in regions where there are no actual

federally recognized Tribal governments, or where Tribal governments choose to compact with

ANCs to provide services under ISDEAA.13

The Bureau of Indian Affairs (“BIA”) and the Indian Health Service (“IHS”)—the two

agencies tasked with administering ISDEAA contracts—have for decades relied on identical

guidelines that suggest how to treat ANCs in the ISDEAA funding regime. These guidelines set

forth the order of preference for what entities the agencies will contract services with under

ISDEAA. These guidelines, which have been in use for decades, establish a hierarchy, whereby

Tribal governments are given precedence over ANCs:

For the purposes of contracting under Pub. L. 93–638, the Alaska Area will
recognize as the village governing body the following entities in order of
precedence:

If there is an Indian Reorganization Act (IRA) Council, and it provides
governmental functions for the village, it will be recognized.

If there is no IRA Council, or it does not provide governmental functions,
then the traditional village council will be recognized.

13
See, e.g., ECF 45-6, Dec. of Cook Inlet Region, Inc. at 2-3 (describing how CIRI receives 638
contracts to serve Alaska Native people living in Anchorage, Alaska’s largest urban area, where
there is no one federally recognized Tribe); ECF 45-5, Dec. of Sheri Bretta at 1-2 (noting that
Chugach Alaska Corporation acts as a conduit for ISDEAA contracts for two communities in its
region—Seward and Valdez—where no federally recognized Tribes exist, but which have
established Native communities seeking federal recognition).

14
Case 1:20-cv-01002-APM Document 76-2 Filed 05/29/20 Page 15 of 22

If there is no IRA Council and no traditional village council, then the village
profit corporation will be recognized.

If there is no IRA Council, no traditional village council, and no village
profit corporation, then the regional profit corporation will be recognized
for that particular village.

Alaska Area Guidelines for Tribal Clearances for Indian Self-Determination Contracts in 1981, 46

Fed. Reg. 27178, 27179 (May 18, 1981) (“Guidelines”); see also BUREAU OF INDIAN AFFAIRS,

VILLAGE SELF-DETERMINATION WORKBOOK, No. 1 (Nov. 1977), available at

https://tinyurl.com/yc2sftzo (last visited May 29, 2020). The Guidelines make clear that an ANC

is considered an “Indian tribe” only as a last resort; that is, if there is no Tribal government in the

area with which to contract services. However, Defendant has already stated publicly that all

federally recognized Tribes including Alaska Tribes are eligible. U.S. Dep’t of Treasury,

Coronavirus Relief Fund: Allocations to Tribal Governments, available at

https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-Tribal-Allocation-

Methodology.pdf (last visited May 29, 2020). This last resort stop-gap is critical because it

facilitates ISDEAA funds, such as healthcare dollars, going to urban centers where there is not a

singular controlling Tribal government that represents all Alaska Natives. There are a significant

number of urban Indians that would be left without services absent this provision. But this stop-

gap does not transform ANCs into entities that can be described as recognized governing bodies

as Defendant would suggest.

Since ISDEAA’s enactment, the Federal government has understood that ANCs may be

treated as having “limited tribal status” under ISDEAA in the narrow circumstances described

above. See, e.g., U.S. Resp. in Opp’n to Mot. for Prelim. Inj., Dkt. 22 at 19, Ukpeagvik Inupiat

Corp. v. U.S. Dep’t of Health & Human Servs., No. 3:13-CV-00073-TMB (D. Alaska). The same

year that ISDEAA was passed, Congress established the American Indian Policy Review

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Case 1:20-cv-01002-APM Document 76-2 Filed 05/29/20 Page 16 of 22

Commission (“Commission”) “to conduct a comprehensive review of the historical and legal

developments underlying the Indians’ unique relationship with the Federal Government in order

to determine the nature and scope of necessary revisions in the formulation of policies and

programs for the benefit of Indians.” Pub. L. No. 93-580, 88 Stat. 1910 (1975).14

The Commission’s Final Report includes a section focusing on Alaska and provides a

thoughtful, thorough analysis of the relationship, or lack thereof, between Alaska’s Tribal

governments and the ANCs that were formed in ANCSA and their respective roles and powers.

AM. INDIAN POLICY REVIEW COMM’N, FINAL REPORT 495 (May 17, 1977). The Commission

described the four entities listed in the IHS Guidelines—(1) a Tribal council organized under the

Indian Reorganization Act (“IRA”); (2) a traditional Tribal council; (3) a village for profit

corporation (village ANC); and (4) a regional profit corporation (regional ANC)—and

acknowledged that “[a]lthough any organization of any of these forms meets the definition of

‘Indian tribe’ in [ISDEAA], it is only” the first two “that are repositories of tribal sovereignty and

are capable of exercising residual sovereign powers.” Id. The Commission further explained that

only the IRA and traditional Tribal governments in Alaska are entities who are both “tribal and

governmental in nature.” Id. In contrast, the Commission acknowledged that even though the

ANCs “are predominantly Native,” the “village and regional corporations organized pursuant to

[ANCSA] are neither tribal nor governmental in nature. They are for-profit corporations

organized under State law.” Id. (emphasis added).

The Federal government’s understanding that ANCs serve a limited role in ISDEAA, and

are not the same as federally recognized Tribes, has been consistent over the decades. For example,

14
The Department of Interior still relies in this Report. See Sol. Op. M-37045, Reaffirmation of
the United States’ Unique Trust Relationship with Indian Tribes and Related Indian Law
Principles, 2017 WL 7805664 at *7 (Jan. 18, 2017).

16
Case 1:20-cv-01002-APM Document 76-2 Filed 05/29/20 Page 17 of 22

in the 1993 list of federally recognized Tribes, the BIA noted that “[u]nder longstanding BIA

policy, priority for contracts and services in Alaska is given to reorganized [IRA] and traditional

governments over non-tribal corporations.” 58 Fed. Reg. 54,364, 54,366 n.2 (Oct. 21, 1993). And

in the 1994 ISDEAA amendments, Congress affirmed its intent to prioritize the governing bodies

of federally recognized Tribes stating, “Clearly, the law envisions maintaining tribal government

control of the contracting process.” S. Rep. No. 100-274 at 19 (1987). ISDEAA’s definition and

order of precedence have likewise been consistently interpreted by the courts. See Cook Inlet

Native Ass’n v. Bowen, 810 F.2d 1471 (9th Cir. 1987); Ukpeagvik Inupiat Corp. v. U.S. Dep’t of

Health & Human Servs., No. 3:13-CV-00073-TMB, 2013 WL 12119576 *1-2 (D. Alaska May 20,

2013) (recognizing that the Department of Health and Human Services must defer to the governing

bodies of federally recognized Tribes rather than village ANCs); see also U.S. GENERAL

ACCOUNTING OFFICE, INDIAN SELF-DETERMINATION CONTRACTING: EFFECTS OF INDIVIDUAL

COMMUNITY CONTRACTING FOR HEALTH SERVICES IN ALASKA 4 n.4 (June 1988), available at

https://www.gao.gov/archive/1998/he98134.pdf (noting IHS’s longstanding order of precedence

and that it has “withstood several court challenges”). The governing bodies of federally recognized

Tribes are given first priority for ISDEAA funds, and when present, control the distribution of

those funds. Only if a Tribal government does not exist for a specific area, or if it compacts its

ISDEAA services with an ANC, does an ANC receive ISDEAA funds. Indeed, Intervenor Calista

Corporation admitted this and acknowledged the limited role of ANCs in ISDEAA in its April 23,

2020, letter to Defendant when it noted the order of precedence’s priority for federally recognized

Tribes and encouraged Defendant to incorporate the order of precedence “into the Treasury’s

guidelines and decision-making regarding” the Tribal relief fund. ECF 71, AR010x, Letter from

17
Case 1:20-cv-01002-APM Document 76-2 Filed 05/29/20 Page 18 of 22

Calista Corp. at 2 (April 23, 2020).15

Defendants and Intervenors are attempting to do here what Ukpeagvik Inupiat Corporation

(“UIC”) sought to do in Ukpeagvik Inupiat Corp., 2013 WL 12119576, which is to conflate ANCs’

inclusion in the definition of Indian tribe in ISDEAA with the power and authorities of actual

sovereign Tribal governments. In the United States’s own words, “UIC assert[ed] that because it

[was] considered a ‘tribe’ for the purpose of being eligible to enter into a self-determination

contract with the IHS under the ISDEAA, it only need[ed] a resolution of support from its own

corporate governing body to provide services.” U.S. Resp. in Opp’n to Mot. for Prelim. Inj., Dkt.

22 at 18, Ukpeagvik Inupiat Corp. v. U.S. Dep’t of Health & Human Servs., No. 3:13-CV-00073-

TMB (D. Alaska). The United States vigorously pushed back on UIC’s overreach, noting that UIC

was not, nor ever had been a federally recognized Tribe, and recognizing that although UIC was

“one of the entities eligible to enter into an ISDEAA contract, it could only do so if it had

authorizing resolutions from the tribal governments in UIC’s proposed service area.” Id. at 18.16

The potential for ANCs to be treated as Indian Tribes under ISDEAA does not bear the

heavy weight Defendant and Intervenors places on it here. It does not confer governmental status

upon ANCs, allowing them to compete with Tribal governments for scarce funding exclusively

15
Intervenor Calista Corporation further explained that following the order of precedence would
“preclude any ‘double dipping’ or ‘double counting’ of Alaska Natives or Alaska Native Tribal
communities” and attested that “Calista, along with many other ANCs, submitted their data to
[Defendant], under the belief that that [Defendant] would follow” the order of precedence—
meaning that an ANC would only receive CARES Act funding in the absence of a Tribal
government. ECF 71, AR010x at 2.
16
The United States mistakenly hypothesized that “if all UIC wanted to do was provide support
services to the residents of the Village of Barrow . . . nothing more would be required.” Id. at 18-
19. However, the Native Village of Barrow Inupiat Traditional Government, the federally
recognized Tribe in Utqiagvik (previously called Barrow), had already provided a resolution
designating the Arctic Slope Native Association as the recipient of its ISDEAA funds. Ukpeagvik
Inupiat Corp., 2013 WL 12119576 at *1 n.8.

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Case 1:20-cv-01002-APM Document 76-2 Filed 05/29/20 Page 19 of 22

set aside for sovereign governing bodies. As the Commission noted, while it might be true that a

village or regional ANC might be the best suited to have an ISDEAA contract in some

circumstances—for example, for when a federally recognized Tribal government decides as

such—“the need is to obviate conflicts among organizations all of which are qualified applicants

for benefits under particular laws and programs,” such as ISDEAA. AM. INDIAN POLICY REVIEW

COMM’N, supra at 495. “The solution is not to disqualify certain kinds of Alaska Native

organizations but to assign priorities among them.” Id.

ANCs are not allowed to compete with Tribal governments in ISDEAA contracting when

a Tribe wants to provide the service itself. If a federally recognized Tribe would like to enter into

its own ISDEAA contract, the village ANC and the regional ANC are not permitted to also obtain

ISDEAA contracts to provide the same services to the same Tribal members. Yet this is exactly

the result that Defendant and Amici ANCs propose here. If they are correct, the CARES Act would

represent a monumental shift in both the legal status of ANCs and the administration of ISDEAA

funding streams.

CONCLUSION

For the foregoing reasons, and those set forth in the incorporated sections of Chehalis

Plaintiffs’ brief the Chehalis Plaintiffs, the Cheyenne River Sioux Plaintiffs, Navajo Nation and

the Ute Indian Tribe collectively request that the Court grant them summary judgment that ANCs

are not “Tribal governments” and therefore not entitled to funds under Title V of the CARES Act.

RESPECTFULLY SUBMITTED this 29th day of May, 2020.

/s/ Nicole E. Ducheneaux
Nicole E. Ducheneaux (DC Bar No. NE001)
BIG FIRE LAW & POLICY GROUP LLP
1404 South Fort Crook Road
Bellevue, NE 68005
Telephone: (531) 466-8725

19
Case 1:20-cv-01002-APM Document 76-2 Filed 05/29/20 Page 20 of 22

Facsimile: (531) 466-8792
Email: nducheneaux@bigfirelaw.com

Counsel for Plaintiff Cheyenne River Sioux Tribe

/s/ Natalie A. Landreth
/s/ Erin C. Dougherty Lynch
/s/ Matthew N. Newman
/s/ Wesley James Furlong
/s/ Megan R. Condon
Natalie A. Landreth (D.D.C. Bar No. AK0001)
Erin C. Dougherty Lynch (pro hac vice)
Matthew N. Newman (pro hac vice)
Wesley James Furlong (D.D.C. Bar No. AK0003)
Megan R Condon (pro hac vice)
NATIVE AMERICAN RIGHTS FUND
745 West 4th Avenue, Suite 502
Anchorage, AK 99501
Telephone: (907) 276-2466
Facsimile: (907) 276-2466
Email: landreth@narf.org
dougherty@narf.org
mnewman@narf.org
wfurlong@narf.org
mcondon@narf.org

Counsel for Plaintiffs Rosebud Sioux Tribe,
Nondalton Tribal Council, Arctic Village Council,
and Native Village of Venetie Tribal Government

/s/ Jennifer Bear Eagle
Jennifer Bear Eagle (pro hac vice)
OGLALA SIOUX TRIBE LEGAL DEPARTMENT
P.O. Box 1204
Pine Ridge, SD 57770
Telephone: (605) 867-2138
Facsimile: (605) 867-2140
Email: jenniferbe@ostlegal.org

Counsel for Plaintiff Oglala Sioux Tribe

/s/ Paul Spruhan
Doreen McPaul (AZ Bar No. 021136)
Attorney General
Paul Spruhan (D.C. Bar No. AZ0017)
Assistant Attorney General

20
Case 1:20-cv-01002-APM Document 76-2 Filed 05/29/20 Page 21 of 22

NAVAJO NATION DEPARTMENT OF JUSTICE
P.O. Box 2010
Window Rock, AZ 86515
Telephone: (928) 871-6345
Email: dmcpaul@nndoj.org
pspruhan@nndoj.org

Counsel for Navajo Nation

/s/ Jeffrey S. Rasmussen
Jeffrey S. Rasmussen (pro hac vice)
Frances C. Bassett (pro hac vice)
Jeremy J. Patterson (pro hac vice)
NATIVE LAW GROUP
357 South McCaslin Boulevard, Suite 200
Louisville, CO 80027
Phone: (303) 926-5292
Facsimile: (303) 926-5293
Email: jrasmussen@nativelawgroup.com
fbassett@nativelawgroup.com
jpatterson@nativelawgroup.com

/s/ Rollie E. Wilson
Rollie E. Wilson (D.C. Bar No. 1008022)
NATIVE LAW GROUP
601 Pennsylvania Avenue Northwest
South Building, Suite 900
Washington, D.C. 20004
Telephone: (202) 340-8232
Facsimile: (202) 639-8238
Email: rwilson@nativelawgroup.com

Counsel for Ute Indian Tribe of the Uintah and Ouray
Indian Reservation

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Case 1:20-cv-01002-APM Document 76-2 Filed 05/29/20 Page 22 of 22

CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of May, 2020, I electronically filed the foregoing
document with the Clerk of the Court using the CM/ECF system, which will send notification of
this filing to the attorneys of record and all registered participants.

/s/ Nicole Ducheneaux
Nicole E. Ducheneaux (D.C. Bar No. NE001)
BIG FIRE LAW & POLICY GROUP LLP

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