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Law360 (June 12, 2020, 9:16 PM EDT ) The D.C. federal judge who will decide whether Alaska Native corporations are eligible to walk away with a chunk of the $8 billion set aside to fight COVID-19 in Native communities admitted Friday that he was struggling to wrap his head around what constitutes a tribal government.
U.S. District Judge Amit P. Mehta admitted he was worn out by the end of the three-hour video conference hearing Friday afternoon — which was peppered with connection snafus that the court called "glitches in the matrix" — and though he spent the second half of the hearing warning everyone to speed things up, the judge said he was grateful for the briefing.
"I know this has been a long afternoon, but I have found these to be challenging and difficult issues to grapple with, so all of this has been quite illuminating and helpful," Judge Mehta said. "We will get to the business of getting you a decision in an expedited manner."
At issue in the case is whether for-profit Alaska Native corporations can ever be considered the "recognized governing body of an Indian tribe."
If Judge Mehta decides that the corporations, known as ANCs — which were created in the '70s to help administer claims following a settlement between the government and Alaska Natives — fall outside of that definition, the corporations will be cut off from the tribal relief funds provided by the Coronavirus Aid, Relief and Economic Security Act.
When Judge Mehta handed down the preliminary injunction blocking the funds from going out, he seemed highly skeptical of the argument that an ANC's board of directors should be considered a governing body, but his questions Friday suggested he was giving the matter some more thought.
"Why shouldn't I give deference to the government here? This is a position they've had for many years, not one they came up with for the purposes of litigation," the judge said.
The tribes bringing suit to stop the ANCs from collecting the coronavirus funds argue that there's no way a corporation can be a governing body, especially not a recognized one, a term that carries its own special meaning in Native American law.
But the court pushed back on that argument, pointing to evidence provided by the government — which argues the ANCs should be included in the virus relief — that the Bureau of Indian Affairs recognized decades ago that the term could apply to boards of directors.
"But of course the government is saying just the opposite — they're saying the term 'recognized governing body' in this context doesn't carry the special meaning you're ascribing to it, and frankly, this was the position of the BIA back in 1976," the judge said. "So tell me why that's wrong."
More than a dozen federally recognized tribes have sued the government to block the funds from going to the ANCs, saying that the relief wasn't intended for them as some of the largest private landowners in the state with collective billions in revenue.
Alaskan tribes and villages filed the first suit, but were quickly joined by others, including the Cheyenne River Sioux Tribe, Rosebud Sioux Tribe, Oglala Sioux Tribe and the Navajo Nation, which has been especially hard hit by the virus as it continues its deadly march across Indian Country.
The tribes in the lead case are represented by Riyaz Kanji and Cory J. Albright of Kanji & Katzen PLLC; Harold Chesnin of the Confederated Tribes of the Chehalis Reservation and Lisa Koop Gunn of the Tulalip Tribes.
The Cheyenne River Sioux Tribe is represented by Nicole E. Ducheneaux and Rose M. Weckenmann of Big Fire Law & Policy Group LLP. The Rosebud Sioux Tribe is represented by Natalie A. Landreth, Wesley James Furlong, Erin C. Dougherty Lynch, Matthew N. Newman and Megan R. Condon of the Native American Rights Fund. The Oglala Sioux Tribe is represented by Jennifer Bear Eagle of the Oglala Sioux Tribe Legal Department.
The Ute Indian Tribe of the Uintah and Ouray Reservation is represented by Frances C. Bassett, Jeffrey S. Rasmussen, Jeremy J. Patterson and Rollie Wilson of Native Law Group.
The federal government is represented by Joseph H. Hunt, Eric Womack and Jason C. Lynch of the U.S. Department of Justice's Civil Division.
The NCAI; Affiliated Tribes of Northwest Indians; Arizona Indian Gaming Association; California Nations Indian Gaming Association; California Tribal Chairperson's Association; Great Plains Tribal Chairmen's Association Inc.; Inter Tribal Association Of Arizona Inc.; Intertribal Council of the Five Civilized Tribes; National Indian Gaming Association; Midwest Alliance of Sovereign Tribes; All Pueblo Council of Governors; and United South And Eastern Tribes Sovereignty Protection Fund are represented by Kaighn Smith Jr., Michael Corey Francis Hinton and Erick J. Giles of Drummond Woodsum, and Derrick Beetso of the National Congress of American Indians.
The Alaska Federation of Natives is represented by James H. Lister of Birch Horton Bittner & Cherot PC.
The lead case is Confederated Tribes of the Chehalis Reservation v. Mnuchin, case number 1:20-cv-01002, in the U.S. District Court for the District of Columbia.
--Additional reporting by Andrew Westney. Editing by Kelly Duncan.
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