Motion for Leave to File, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 99 (June 29, 2020)

Summary

Confederated Tribes Plaintiffs' Motion for Injunction Pending Appeal and Memorandum of Points and Authorities, No. 1:20-cv-01002-APM, filed June 29, 2020. Plaintiffs ask that Defendant Steven Mnuchin, Secretary of the Treasury, be enjoined to withhold and not disburse the Title V funds presently allocated to Alaska Native regional corporations and village corporations (ANCs). The memorandum states that on June 26, 2020, the Court granted summary judgment motions and dissolved the preliminary injunction entered on April 27, 2020. It argues that Plaintiffs raise at least a serious legal question and would lose the chance to share in hundreds of millions of dollars that Congress set aside for federally recognized Indian tribes.

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“Motion for Leave to File, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 99 (June 29, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/motion-for-leave-to-file-confederated-tribes-of-the-chehalis-reservati-5cf9da19e7/, SHA-256 8fa44ece08d8e955e1feb65df2530e6f2d4cd7d898ca1d0619f3b8ad19ddf371.

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Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 1 of 18

3 UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
4

5
CONFEDERATED TRIBES OF THE CHEHALIS
RESERVATION, et al. Case No.: 1:20-cv-01002-APM
6
Plaintiffs,
7 v.

8 STEVEN MNUCHIN, SECRETARY, UNITED
STATES DEPARTMENT OF THE TREASURY
9
Defendant.
10 _________________________________________
11 CHEYENNE RIVER SIOUX TRIBE, et al. Case No. 1:20-cv-01059-APM
12 Plaintiffs,
v.
13
STEVEN MNUCHIN, SECRETARY, UNITED
14
STATES DEPARTMENT OF THE TREASURY
15
Defendant.
16 _________________________________________

17 UTE TRIBE OF THE UINTAH AND OURAY
RESERVATION Case No. 1:20-cv-01070-APM
18
Plaintiff,
19 v.

20 STEVEN MNUCHIN, SECRETARY, UNITED
STATES DEPARTMENT OF THE TREASURY
21
Defendant.
22

23
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR INJUNCTION PENDING
24 APPEAL AND MEMORANDUM OF POINTS AND AUTHORITIES
25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 1 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 2 of 18

1 MOTION

2 Pursuant to Federal Rule of Civil Procedure 62(d) and Federal Rule of Appellate
3 Procedure 8(a)(1), Plaintiffs Confederated Tribes of the Chehalis Reservation, Tulalip Tribes,
4
Houlton Band of Maliseet Indians, Akiak Native Community, Asa’carsarmiut Tribe, Aleut
5
Community of St. Paul Island, Navajo Nation, Quinault Indian Nation, Pueblo of Picuris, Elk
6
Valley Rancheria, California, and San Carlos Apache Tribe (collectively, “Confederated Tribes
7
Plaintiffs” or “Plaintiffs”), move for an injunction pending appeal enjoining Defendant Steven
8
Mnuchin, Secretary of the United States Department of the Treasury (the “Secretary”) to
9
withhold and not to disburse the Title V funds that the Secretary has presently allocated to
10
Alaska Native regional corporations and village corporations (“ANCs”).
11
MEMORANDUM OF POINTS AND AUTHORITIES
12
I. INTRODUCTION
13
The Court is well familiar with the factual background, statutes at issue, and history of
14
the proceedings, see ECF Nos. 36, 97, and Plaintiffs will not burden it with duplicative
15

16 discussion of those subjects here. On June 26, 2020, the Court granted the Secretary’s and

17 Defendant-Intervenors’ Motions for Summary Judgment. ECF Nos. 97, 98. In doing so, it

18 dissolved the preliminary injunction it had entered in favor of Plaintiffs on April 27, 2020. ECF

19 No. 98. As a result, the Court left the Secretary legally unconstrained to disburse Title V funds

20 to ANCs at any time. To preserve the status quo and prevent irreparable harm, the Confederated

21 Tribes Plaintiffs respectfully request that the Court issue an injunction pending appeal. 1
22

23
1
Pursuant to Local Civil Rule 7(m), undersigned counsel has contacted opposing counsel in a
24
good faith effort to determine whether there is any opposition to this motion. Plaintiffs have also
25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 2 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 3 of 18

1 II. STANDARD OF REVIEW

2 Pursuant to Federal Rule of Civil Procedure 62(d), Plaintiffs request an injunction
3 pending a forthcoming appeal of the Court’s decision. See Loving v. IRS, 920 F. Supp. 2d 108,
4
110 (D.D.C. 2013) (observing that the filing of a notice of appeal “is not a prerequisite for relief
5
under this Rule so long as there is reason to believe an appeal will be taken”); Community Cause
6
v. Judicial Ethics Committee, 473 F. Supp. 1251, 1254 (D.D.C. 1979) (“As Professors Wright
7
and Miller explain, [Rule 62] permits the issuance of an injunction whenever there is reason to
8
believe that an appeal will be taken, even before the actual notice of appeal has been filed.”). 2
9
To obtain injunctive relief pending appeal, Plaintiffs must show “the same four criteria as a
10
motion for preliminary injunction”: (1) that they are “likely to succeed on the merits,” (2) that
11
they are “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the
12
balance of equities tips in [their] favor,” and (4) “that an injunction is in the public interest.”
13
Cigar Ass’n of Am. v. U.S. Food & Drug Admin., 317 F. Supp. 3d 555, 560 (D.D.C. 2018)
14

15 (Mehta, J.) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

16 “Courts in this Circuit traditionally have analyzed these four factors on a ‘sliding scale,’

17 whereby ‘a strong showing on one factor could make up for a weaker showing on another.’” Id.

19
requested that the Secretary voluntarily refrain from disbursing Title V funds to ANCs while
20 Plaintiffs pursue an expedited appeal. In response, the Secretary has represented that the
Secretary is still in the process of determining his position regarding disbursements, and that no
21 payments will be disbursed to ANCs today (June 29, 2020). The Secretary did not otherwise
state a position on this motion. As of this filing, the Defendant-Intervenors have Plaintiffs’
22 request for a position under consideration. Given the time exigencies involved, Plaintiffs are
filing these papers and will keep the Court apprised of any further developments in the parties’
23
respective positions.
2
While the Court in Loving referred to Rule 62(c), that rule is now found in subsection (d).
24

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 3 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 4 of 18

1 (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). “When considering a motion

2 under Rule 62[(d)], the ‘sliding scale’ framework allows a movant to remedy a lesser showing of
3 likelihood of success on the merits with a strong showing as to the other three factors, provided
4
that the issue on appeal presents a ‘serious legal question’ on the merits.” Id. (quoting Wash.
5
Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977)); see
6
also Al–Anazi v. Bush, 370 F. Supp. 2d 188, 193 n.5 (D.D.C. 2005) (noting that when evaluating
7
a request for an injunction pending appeal, “courts often recast the likelihood of success factor as
8
requiring only that the movant demonstrate a serious legal question on appeal where the balance
9
of harms strongly favors a stay”). “Thus, the court may grant Plaintiffs’ motion and issue
10
an injunction pending appeal if a ‘serious legal question is presented, ... little if any harm will
11
befall other interested persons or the public, and ... denial of the order would inflict irreparable
12
injury on [Plaintiffs].” Cigar Ass’n of Am., 317 F. Supp. 3d at 560-61 (quoting Holiday
13
Tours, 559 F.2d at 844).
14

15 III. ARGUMENT

16 All four factors strongly favor the issuance of injunctive relief here. While Plaintiffs do

17 not expect this Court to conclude that they are likely to succeed on the merits given that it has

18 just entered summary judgment against them, it is clear from the Court’s own ruling that

19 Plaintiffs’ arguments at the very least raise a serious legal question. In addition, as the Court

20 previously concluded, ECF No. 36, Plaintiffs will suffer irreparable harm absent injunctive
21 relief: they will forever be denied the opportunity to share in hundreds of millions of dollars that
22
Congress set aside for federally recognized Indian tribes to support their governments’ ongoing
23

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 4 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 5 of 18

1 efforts to protect and serve their citizens during the COVID-19 pandemic. Finally, both the

2 balance of equities and the public interest favor an injunction pending appeal.
3 A. Plaintiffs Have at the Very Least Raised a Serious Legal Question, One on
Which They Might Well Prevail in the D.C. Circuit
4

In entering its preliminary injunction in this case, this Court concluded that Plaintiffs had
5

6 shown a likelihood of success on their argument that ANCs are not tribal governments because

7 they are neither Indian tribes nor the recognized governing bodies of the same. ECF No. 36 at

8 19-31. At the summary judgment stage, the Court changed its view. In doing so, the Court made

9 clear that “this case does not present easy, straightforward questions of statutory interpretation.

10 The court has wrestled with them.” ECF No. 97 at 14. The Court went on to add that the

11 question whether ANCs qualify as “Indian Tribes” who are eligible for CARES Act funding is “a
12 close question.” Id. at 15. By the Court’s own telling, then, Plaintiffs have presented a serious
13
legal question that is a predicate for an injunction pending appeal. See Cigar Ass’n of Am., 317
14
F. Supp. 3d at 561 (granting injunction pending appeal where case presents “serious legal
15
questions going to the merits, so serious, substantial, difficult as to make them a fair ground of
16
litigation and thus for more deliberative investigation” (quoting Population Inst. v. McPherson,
17
797 F.2d 1062, 1078 (D.C. Cir. 1986)).
18
And if more is required, Plaintiffs respectfully submit that the Court had it right the first
19
time, and that there exists a substantial possibility that the “the D.C. Circuit might well disagree”
20
with this Court’s ultimate resolution of the legal questions presented. Id. None of the reasons
21
advanced by the Court in its summary judgment opinion warrant its change in position.
22
First, the Court agreed with the Confederated Tribe Plaintiffs that “as a matter of pure
23

24
grammar, the eligibility clause contained in the definition of ‘Indian Tribe’ in ISDEAA and the

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 5 206-344-8100
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1 CARES Act applies to ANCs.” ECF No. 97 at 14. Yet based on one canon alone—the rule

2 against superfluity—the Court disregarded this “pure grammar” —and the series-qualifier canon,
3 the last-antecedent rule, and the disjunctive canon that confirm it—to hold that the eligibility
4
clause does not apply to ANCs. This approach is highly vulnerable on appeal. Cf. ECF No. 36
5
at 24 (“To be sure, courts must ‘interpret a statute to give meaning to every clause and word.’
6
But the court cannot ignore the clear grammatical construct of the ISDEAA definition, which
7
applies the eligibility clause to every entity and group listed in the statute. The possibility that
8
ANCs might not qualify under the eligibility clause is hardly fatal to carrying out Congress’s
9
purpose under ISDEAA” because “‘Alaska Native village[s]’ are also in the statute” and there
10
are “229 federally recognized Alaska Native villages” that satisfy the eligibility clause. (internal
11
citation omitted)).
12
In reaching its new conclusion, the Court suggested that Plaintiffs’ position rests on the
13
series-qualifier canon and asserted that the canon “can be overcome by other indicia of meaning”
14

15 and “is subject to defeasance by other canons.” ECF No. 97 at 16 (citing Lockhart v. United

16 States, 136 S. Ct. 958, 963, 965 (2016) and Jordan v. Maxim Healthcare Servs., Inc., 950 F.3d

17 724, 745 (10th Cir. 2020)). But Plaintiffs’ position cannot be so readily cabined. It rests at

18 bottom on what the Secretary, the Plaintiffs and the Court all agree is the ordinary grammatical

19 construction of the Indian tribe definition. The series qualifier canon simply confirms the

20 meaning that plainly inheres in the text.
21 Moreover, the Court failed to note that in Lockhart and Jordan the courts were debating
22
between two grammatical constructs: one suggested by the series-qualifier canon and the other
23
consistent with the last-antecedent canon. See Lockhart, 136 S. Ct. at 963, 965 (also discussing
24

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
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1 other Supreme Court cases debating between a series-qualifier construction and a last-antecedent

2 construction); Jordan, 950 F.3d at 745-48.3 See also Antonin Scalia & Bryan A. Garner,
3 Reading Law: The Interpretation of Legal Texts 150-151 (2012) (discussing how the series-
4
qualifier canon is “subject to defeasance by other canons” by contrasting it to a last-antecedent
5
construction). The courts used other indicia of meaning, including the rule against superfluity, to
6
indicate which of these two possible grammatical constructions—a series-qualifier construction
7
or a last-antecedent construction—was intended. See Lockhart, 136 S. Ct. at 963, 965; Jordan,
8
950 F.3d at 745-48 (also discussing Lockhart and stating that “at bottom, the Court reminded the
9
parties that whether a modifier applies to each word in a list or only to the last word is a
10
‘fundamentally contextual question[ ].’” (quoting Lockhart, 136 S. Ct. at 965)).
11
But in neither case did the courts completely ignore all grammatical constructions in
12
favor of the rule against superfluity alone. Indeed, the last-antecedent construction the Court
13
adopted in Lockhart still resulted in superfluity. See Lockhart, 136 S. Ct. at 966 (“We recognize
14

15 that this interpretation does not eliminate all superfluity …. See United States v. Atlantic

16 Research Corp., 551 U.S. 128, 137 (2007) (‘[O]ur hesitancy to construe statutes to render

17 language superfluous does not require us to avoid surplusage at all costs. It is appropriate to

18 tolerate a degree of surplusage’).”). Plaintiffs simply are not aware of any case where a court has

19 done what the Court did here: rely on the rule against superfluity to disregard both possible

20 grammatical constructions of a restricting clause.
21

22
3
Due to a Colorado statute declaring that the Colorado General Assembly does not use the last-
23 antecedent canon, the court in Jordan did not rely on the last-antecedent canon by name when
reaching its holding, but it did adopt a reading consistent with the last-antecedent canon over the
24
series-qualifier canon. See Jordan, 950 F.3d at 747-48.
25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
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1 By the Court’s own admission, its new approach “gives rise to an odd grammatical

2 result…. [This] reading … creates the strange result that the eligibility clause modifies the first
3 in the series of three nouns that comprises the Alaska clause [Alaska Native villages], but not the
4
last two [regional and village ANCs]. This is an unnatural reading to be sure.” ECF No. 97 at
5
20. But an unnatural reading is precisely what the courts are meant to avoid when engaged in
6
textual construction. Even leaving aside Plaintiffs’ arguments as to why their position does not
7
produce superfluity, the rule against surplusage simply cannot “bear the weight,” Lockhart, 136
8
S. Ct. at 965, the Court has placed on it, and Plaintiffs respectfully suggest that serious doubt
9
exists as to whether the D.C. Circuit will sustain that reliance on appeal.
10
Second, the Court’s holding that the rule against superfluities outweighs the grammatical
11
construction (and all other canons of construction) rests on a faulty assumption: that the 1975
12
Congress understood at the time it enacted ISDEAA that no ANC then satisfied the clause and
13
that no ANC would ever be able to satisfy that clause. See ECF No. 97 at 22. The Court cites no
14

15 evidence to support this assumption. And it is one that necessarily implies that the submissions

16 made by ANCs to the Interior Department in 1977 that they did satisfy the eligibility clause, ECF

17 No. 87 at 21, and the Interior Department’s statement to the same effect in 1988, id. at 24; ECF

18 No. 77 at 39, were disingenuous.

19 Third, the Secretary’s position is not entitled to Skidmore deference. “[T]he weight a

20 court affords to an agency interpretation . . . ‘depend[s] upon the thoroughness evident in its
21 consideration, the validity of its reasoning, its consistency with earlier and later pronouncements,
22
and all those factors which give it power to persuade, if lacking power to control.’” ECF No. 97
23
at 23-24 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). The Court does not point
24

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
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1 to any interpretation by the Treasury Department, which is the administering agency here.

2 Rather, the Court cites the 1976 memorandum by Assistant Solicitor for Indian Affairs, Charles
3 M. Soller (“Soller memorandum”) regarding the ISDEAA definition. ECF No. 97 at 24-25
4
(citing Soller memorandum at ECF No. 90-1, at 610-13). But, as the Confederated Tribes
5
Plaintiffs have explained, not only is the single-paragraph discussion contained in the Soller
6
memorandum bereft of any citation to authority, it also rests on factual considerations that are no
7
longer relevant. ECF No. 87 at 18-19. Further, the Soller memorandum adopted an
8
interpretation—that the eligibility clause also does not apply to “Alaska Native villages”—that
9
the Secretary rejects today. See ECF No. 97 at 25 n.10 (discussing but disregarding the same).
10
The memorandum, in short, hardly qualifies as the type of “thorough,” valid, consistent or
11
persuasive interpretation entitled to Skidmore deference.4
12
Fourth, ANCs are not “Tribal governments,” and they do not have “recognized
13
governing bodies.” Citing the wide body of case law holding that the term “recognized” as used
14

15 in Indian law statutes is a legal term of art indicating that a government-to-government

16 relationship has been established between a tribal government and the federal government, the

17 Court previously held that the term “recognized” as used in the CARES Act definition of “Tribal

18 government” matches this term of art status. ECF No. 36 at 21-22, 30-31 (“[G]iven the history

19 and significance of the term ‘recognition’ in Indian law, the court doubts that Congress would

20 have used the term if it did not mean to equate it with federal recognition.”).
21

22
4
The 1977 Commission Report cited by the Secretary and the Court, ECF No. 97 at 26 n.11, also
23 contains obvious legal errors. See ECF No. 87 at 19-20 (discussing same). None of these
materials can substitute for or override the clear grammatical construct of the Indian tribe
24
definition.
25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 9 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 10 of 18

1 Setting aside this wide body of case law, the Court backed its way into the opposite

2 conclusion by pointing to the fact that the phrase “recognized governing body” also appears in
3 the ISDEAA definition of “tribal organization,” which defines the universe of entities eligible to
4
enter 638 contracts. The Court noted, correctly, that ISDEAA defines tribal organizations in two
5
ways, ECF No. 97 at 29, but erroneously concluded that ANCs cannot fall under the second
6
definition.5 The Court reasoned that as a corporate entity, an ANC cannot be a “legally
7
established organization of Indians which is controlled, sanctioned, or chartered by [the]
8
governing body,” 25 U.S.C. § 5304(l), of an Indian tribe. ECF No. 97 at 31. But state-chartered
9
corporations that are independent of tribes yet have a strong Indian character may be
10
“sanctioned” by federally recognized Indian tribes to enter into ISDEAA contracts. See, e.g.,
11
Redman v. St. Stephens Indian School Educational Association, Inc., Civil Action No. 05-CV-
12
110J, 2006 WL 8433204, at *2-4 (D. Wyo. Jan. 13, 2006) (discussing how the recognized
13
governing body of a federally recognized Indian tribe authorized a state-chartered corporation,
14

15 whose shareholders comprised all reservation residents, including non-Indians, to contract with

16 the Bureau of Indian Affairs under ISDEAA for operation of a school); see also 25 C.F.R. §

17 900.8(b). Thus, there is nothing odd about the fact that ANCs are authorized to enter 638

18 contracts under the second ISDEAA definition of “tribal organization.”

19 In addition, in the limited circumstances that the 1981 IHS Guidelines permit ANC

20 Boards of Directors to qualify under the first ISDEAA definition of “tribal organization,” it is as
21 the governing body of an Alaska Native village. 46 FR 27178-02 (1981). That is, the agency
22

23
5
Based on this incorrect conclusion, the Court further concluded that, ANCs must fall under the
24
first definition of “tribal organization,” and thus must have “recognized governing bodies” for
25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 10 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 11 of 18

1 treats the ANC’s Board of Directors as the governing body of a specific federally recognized

2 tribe. This treatment does not transform the ANC’s Board of Directors itself into a “recognized
3 governing body,” rather, the ANC Board of Directors status rests on the Alaska Native village’s
4
underlying recognition. The term “recognized” thus still maintains its term of status.
5
Further, the Court placed undue weight on the ISDEAA definition of “tribal
6
organization” and ignored the operative term at issue here: “Tribal government.” “[T]he word
7
being defined is the most significant element of the definition’s context. The normal sense of that
8
word and its associations bear significantly on the meaning of ambiguous words or phrases in the
9
definition.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
10
232 (2012). The CARES Act Congress did not use the term “Tribal organization”; it used the
11
term “Tribal government.” As the Court previously stated, the term “‘government’ is commonly
12
understood to refer to ‘[t]he sovereign power in a country or state’ or ‘organization through
13
which a body of people exercises political authority; the machinery by which sovereign power is
14

15 expressed.’” ECF No. 36 at 22-23 (discussing also how “Congress placed monies for ‘Tribal

16 governments’ in the same title of the CARES Act as funding for other types of ‘governments,’”

17 including States and units of local government, noscitur a sociis and how “[t]he term ‘Tribal

18 government’ must be read in this context” as well as the common understanding of the term

19 “government”). Here, the common understanding of “government” militates heavily in favor of

20 the same conclusion dictated by the term of art status of its definition. The purpose of the $8
21 billion in Title V is to provide Tribal governments emergency funding relief to enable them to
22
provide the essential governmental services necessary to help their citizens survive a devastating
23

24
purposes of both ISDEAA and the CARES Act.
25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
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1 pandemic. ANCs are not governments; they are not acting as governments in the face of this

2 pandemic; and they do not act as Indian tribal “governments” under ISDEAA.
3 Taken individually and collectively, the identified vulnerabilities in the Court’s summary
4
judgment conclusion suggest that, at the very least, serious legal questions would exist on appeal,
5
such that the Court should maintain the status quo pending the resolution of that appeal.
6
B. Absent Immediate Injunctive Relief, Plaintiffs Will Suffer Irreparable Harm
7
If denied an injunction pending appeal, the Confederated Tribes Plaintiffs “will incur an
8
injury that is ‘certain’ and ‘imminent.’” Cigar Ass’n of Am. v. U.S. Food & Drug Admin., 317 F.
9
Supp. 3d at 562. The Secretary has allocated $162.3 million in tranche-one Title V funds to
10
ANCs. See ECF No. 97 at 7. The Secretary has refused multiple requests from Plaintiffs to
11
disclose the amount of tranche-two funds he allocated to ANCs, but news reports indicate that
12
ANCs can expect to receive approximately $533 million. CARES Act Litigation: Chehalis
13
Confederated Tribes of the Chehalis Reservation v. Mnuchin, Indianz.com (June 25, 2020),
14

15 https://www.indianz.com/covid19/?p=6662.

16 If the Secretary is not enjoined pending appeal, no legal obstacle will preclude the

17 Secretary from distributing these funds to ANCs, and Plaintiffs will have no ability to recoup

18 them. The case will likely be mooted, and Plaintiffs will have been denied the right to appellate

19 review of the serious and important questions presented. See, e.g., City of Houston, Tex. v. Dep’t

20 of Hous. & Urban Dev., 24 F.3d 1421, 1424, 1426 (D.C. Cir. 1994) (“It is a well-settled matter
21 of constitutional law that when an appropriation has lapsed or has been fully obligated, federal
22
courts cannot order the expenditure of funds that were covered by that appropriation…. [O]nce
23
the relevant funds have been obligated, a court cannot reach them in order to award relief.”);
24

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
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Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 13 of 18

1 Ambach v. Bell, 686 F.2d 974, 986 (D.C. Cir. 1982) (“Once the chapter 1 funds are distributed to

2 the States and obligated, they cannot be recouped. It will be impossible in the absence of a
3 preliminary injunction to award the plaintiffs the relief they request if they should eventually
4
prevail on the merits.”). And they will have been denied access to a substantial portion of the
5
funds that they and other tribal governments so desperately need in their ongoing efforts to
6
combat the pandemic that continues to menace their communities. ECF No. 36 at 15-18; Agua
7
Caliente Band of Cahuilla Indians v. Mnuchin, Case No. 20-cv-01136-APM, 2020 WL 3250701,
8
at *3 (D.D.C. June 15, 2020) (Mehta, J.) (finding that tribes would be irreparably harmed by
9
Secretary’s withholding of $679 million in Title V funds); see also, e.g., ECF No. 3 at 29-35;
10
ECF No. 30 at 21-24; ECF No. 77 at 5-7.
11
The Confederated Tribes Plaintiffs do not believe that this Court intended to fashion itself
12
as the court of last resort in this case, and an injunction pending appeal would ward off the
13
irreparable harm that would result were the Secretary to short-circuit the appellate process by
14

15 releasing the funds in dispute absent appellate review.

16 C. The Balance of Equities and Public Interest Favor an Injunction

17 Where the Federal government is the opposing party, the remaining two factors of the

18 injunctive relief test—balance of equities and public interest—merge. Nken v. Holder, 556 U.S.

19 418, 435 (2009); Pursuing Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 511 (D.C.

20 Cir. 2016). “The balance of the equities weighs the harm to [the Secretary] if there is no
21 injunction against the harm to the [Plaintiffs] if there is.” Pursuing Am’s Greatness, 831 F.3d at
22
511 (citing Winter, 555 U.S. at 25-26). “And in this case, the [Secretary’s] harm and the public
23
interest are one and the same, because the government’s interest is the public interest.” Id.
24

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 13 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 14 of 18

1 (citing Nken, 556 U.S. at 435). “There is generally no public interest in the perpetuation of

2 unlawful agency action. To the contrary, there is a substantial public interest in having
3 governmental agencies abide by the federal laws that govern their existence and operations.”
4
League of Women Voters, 838 F.3d at 12 (internal citations omitted). While district courts
5
ordinarily enjoy broad discretion to balance the equities and weigh the public interest, this
6
discretion accordingly “is bounded” when the activity in question contravenes a statutory
7
directive. Gordon v. Holder, 721 F.3d 638, 652 (D.C. Cir. 2013).
8
An injunction preventing the unlawful disbursement of CARES Act funds to ANCs is in
9
the public’s interest—and therefore in the Secretary’s interest— as it will ensure that Congress’s
10
public policy choices are properly enforced. In responding to the havoc wrought by COVID-19
11
on every facet of American life, Congress made policy judgments regarding the most appropriate
12
way to allocate the limited relief funding available. Allowing the Secretary to disburse relief
13
funds to unauthorized entities contravenes Congress’s plan by reducing the amount of funding
14

15 available to Tribal governments to respond to the severe health, safety, and financial crises

16 currently afflicting their communities. “Once Congress, exercising its delegated powers, has

17 decided the order of priorities in a given area, it is . . . for the courts to enforce them when

18 enforcement is sought. Courts of equity cannot, in their discretion, reject the balance that

19 Congress has struck in a statute.” United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S.

20 483, 497 (2001) (quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 194-95 (1978)
21 (internal quotes omitted)). Because Congress has not authorized the Secretary to disburse Title
22
V funds to ANCs, the public’s interest in requiring federal agencies to abide by the will of
23
Congress and its statutory directives counsels heavily in favor of the issuance of injunctive relief.
24

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 14 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 15 of 18

1 Nor do these factors weigh differently as a result of the ANCs’ involvement in this

2 matter. While the ANCs have alleged that they are undertaking certain corporate actions as a
3 result of the COVID-19 pandemic, they are doing so as corporate actors, not governmental ones.
4
The ANCs do not dispute in this action that they are not governments, and thus do not provide
5
government services to any citizenry. Instead, they are for-profit corporations. To the extent
6
these corporations may be responding to the pandemic in their communities, they may draw
7
upon the billions of dollars of corporate funds available to them in the same way that many
8
private corporations are doing throughout the United States. See, e.g., ECF No. 36 at 5
9
(discussing economic size of ANCs). A delay in the potential receipt of these funds by ANCs
10
would not result in any irreparable harm. In stark contrast, absent an injunction, the Plaintiff
11
Tribes will forever lose the opportunity to receive and spend these funds on the governmental
12
services that Congress intended.
13
IV. CONCLUSION
14

15 For the foregoing reasons, the Confederated Tribes Plaintiffs respectfully request that the

16 Court grant their motion for an injunction pending appeal.

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 15 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 16 of 18

1 Dated this 29th 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 # WA0013
811 1st Avenue, Suite 630
9 Seattle, WA 98104
Telephone: 206-344-8100
10 Email: calbright@kanjikatzen.com

11 Co-Counsel for the Confederated Tribes of the
Chehalis Reservation and the Tulalip Tribes
12
Counsel for the Houlton Band of Maliseet Indians,
13 Akiak Native Community, Asa’carsarmiut Tribe
and Aleut Community of St. Paul Island
14

15
CONFEDERATED TRIBES OF THE CHEHALIS
16 RESERVATION

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

21
TULALIP TRIBES
22
/s/ Lisa Koop Gunn
23
Lisa Koop Gunn, WSBA # 37115
Tulalip Tribes, Office of the Reservation Attorney
24

25
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 16 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 17 of 18

1 6406 Marine Drive
Tulalip, WA 98271
2 Telephone: 360-716-4550
Email: lkoop@tulaliptribes-nsn.gov
3

4
THE NAVAJO NATION
5
/s/ Paul Spruhan
6 Doreen McPaul, AZ Bar No. 021136
Attorney General
7 Paul Spruhan, D.C. Bar No. AZ0017
Assistant Attorney General
8 P.O. Box 2010
Window Rock, AZ 86515
9 Telephone: (928) 871-6345
Email: dmcpaul@nndoj.org
10 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
CONFEDERATED TRIBES PLAINTIFFS’ MOTION FOR Kanji & Katzen, P.L.L.C.
INJUNCTION PENDING APPEAL AND 811 1st Ave., Suite 630
MEMORANDUM OF POINTS AND AUTHORITIES Seattle, WA 98104
– Page 17 206-344-8100
Case 1:20-cv-01002-APM Document 99 Filed 06/29/20 Page 18 of 18

2 QUINAULT INDIAN NATION
3 /s/ Lori Bruner
Lori Bruner, WSBA # 26652
4
Quinault Office of the Attorney General
136 Cuitan Street
5
Taholah, WA 98587
6 Telephone: 360.276-8215, Ext. 1406
Email: LBruner@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

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