By Andrew Westney

Law360 (July 2, 2020, 5:34 PM EDT ) The Treasury Department has urged a D.C. federal judge to let Alaska Native corporations receive their portion of $8 billion in COVID-19 relief, saying the only legal support that federally recognized tribes have to try to prevent the money being distributed is an earlier injunction the judge recently discarded.

The Confederated Tribes of the Chehalis Reservation and other tribes had asked U.S. District Judge Amit P. Mehta on June 29 to put on hold his decision that the for-profit ANCs qualify as "Indian tribes" eligible for funding under the Coronavirus Aid, Relief and Economic Security, or CARES, Act, while the tribes appeal the ruling to the D.C. Circuit.

Treasury Secretary Steven Mnuchin said in an opposition Wednesday that "there is no 'serious legal question' sufficient to enter the extraordinary remedy of an injunction" because "the salient issues in this case have been settled administratively for more than 40 years, and judicially for more than 30 years."

While Judge Mehta had granted the tribes an April 27 injunction to prevent Treasury from sending the ANCs any of the funds, it was issued very quickly and "since its dissolution, there is no longer any legal authority in support of plaintiffs' arguments," Mnuchin said.

And if the court thinks the tribes "were at risk of suffering irreparable harm should payments be made to ANCs, that conclusion would apply equally to ANCs," Mnuchin said.

"As plaintiffs' case for irreparable harm gets stronger, the balance of equities tips even further against them," Mnuchin said. "Given their unlikely success on the appeal, the factors weigh against injunctive relief."

Six tribes filed the original complaint in the case on April 17, saying the 12 Alaska Native regional corporations and 225 Alaska Native village corporations — which have billions of dollars in revenue and are among the largest private landowners in Alaska — were not intended to receive any of the "tribal stabilization fund" included in the $2 trillion CARES Act.

The Confederated Tribes of the Chehalis Reservation, the Navajo Nation, three Alaska tribes and other federally recognized tribes asked for summary judgment on May 29, saying Judge Mehta "hewed to the plain language of the statute and accepted principles of statutory construction" when he issued his April injunction.

Two more cases were consolidated with the lead suit, including one by the Cheyenne River Sioux Tribe, Rosebud Sioux Tribe, Oglala Sioux Tribe and others, and another by the Ute Indian Tribe of the Uintah and Ouray Reservation.

Judge Mehta ruled in favor of Treasury and the ANCs on June 26, saying he'd changed his mind after granting the injunction to the plaintiffs, which argued that Congress wanted only federally recognized tribes to receive the funds.

Congress intended for the ANCs to receive part of the $8 billion in direct tribal government funding when it borrowed definitions of "Indian tribe" and "recognized governing body" from the Indian Self-Determination and Education Assistance Act to use in the CARES Act, the judge ruled.

The Confederated Tribes and others asked the court for another injunction on June 29, saying that without it they would lose their chance to recover funds sent out to the ANCs.

Alaska Native corporation Ahtna Inc. said in its own opposition to the injunction request Wednesday that the tribes' motion "completely ignores the harm the delay arising from plaintiffs' lawsuit" has caused in getting funds out, which Ahtna said it would use to pay for storage facilities for coronavirus-related food and supplies and for housing and sanitation work.

Two ANC associations, Alaska Native Village Corporation Association Inc. and Association of ANCSA Regional Corporation Presidents/CEO's Inc., said in a separate opposition Wednesday that the tribes' claims of harm are "mitigated by the fact that plaintiffs have already received the CARES Act funding to which the secretary determined they are entitled."

"For ANCs, no less than other Indian tribes, every day the disbursement of CARES Act funds allocated for ANCs is delayed is another day that the Alaska Natives they serve are not fully equipped with the tools to combat the public health emergency," the associations said.

And a group of ANCs led by Calista Corp. said in their own opposition Wednesday that the situation for Alaska Natives is "dire" and "many of the residents in villages served by the Calista ANCs are physically remote and have lost their principal supply route and nonemergency mode of medical transport due to a pandemic-induced bankruptcy."

Calista urged the judge to refuse the federally recognized tribes an injunction and allow them instead to ask the D.C. Circuit.

Representatives for the parties were not immediately available for comment Thursday.

The Confederated Tribes of the Chehalis Reservation and other 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.

Ahtna Inc. is represented by Michael J. O'Leary and Jonathan Katchen of Holland & Hart LLP. Calista Corp. et al. are represented by Ragan Naresh, Paul D. Clement, Erin E. Murphy and Matthew D. Rowen of Kirkland & Ellis LLP. The ANC associations are represented by Daniel W. Wolff, David Chung and Kirsten L. Nathanson of Crowell & Moring LLP and Christine V. Williams and J. Harrison Powell II of Outlook Law LLC.

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 Emma Whitford and Kelly Zegers. Editing by Orlando Lorenzo.

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