High court may steer virus funds directly to Alaska Natives

WASHINGTON — The Supreme Court seemed inclined Monday to say that hundreds of millions of dollars in coronavirus relief money tied up in court should benefit Alaska Natives rather than be spread more broadly among Native American tribes around the U.S.

The justices heard arguments in a case involving the massive pandemic relief package passed last year and signed into law by then-President Donald Trump. The $2.2 trillion legislation earmarked $8 billion for “Tribal governments” to cover expenses related to the pandemic.

The question for the court is whether Alaska Native corporations, which are for-profit companies that provide benefits and social services to more than 100,000 Alaska Natives, count as “Indian tribes.”

The federal government set aside more than $530 million for the corporations, but the funds have been tied up as a result of lawsuits by Native American tribes.

The Navajo Nation was among the tribes that sued the Treasury over the potential payments to ANCs.

Navajo Nation Attorney General Doreen McPaul has said allocating the money to ANCs would reduce the amount of pandemic relief funds available for other “devastated” tribal governments.

“We are literally fighting for dollars to save lives,” McPaul

said.

If the tribes win, the disputed funds would be distributed among 574 federally recognized tribes both in and outside Alaska. The case is important not only because of the amount of money it involves, but also because Native Americans and Alaska Natives have been disproportionately affected by the pandemic.

On Monday, the justices agreed that Congress could have chosen clearer language in the Coronavirus Aid, Relief, and Economic Security Act to describe who should get money. But both conservative and liberal justices also seemed to conclude that Congress intended Alaska Native corporations to get funds.

During about an hour and a half of arguments the justices heard by phone because of the pandemic, Justice Samuel Alito suggested it would be “absurd” for the law to be read as not covering the so-called ANCs. And Justices Clarence Thomas and Neil Gorsuch suggested Congress could have chosen other language if it intended to exclude them.

Justice Elena Kagan called it “implausible” that Congress intended to leave ANCs out. And Justice Stephen Breyer seemed ready to excuse Congress’ grammar and conclude they should be covered.

“I’ve never heard of a canon that says you have to use perfect grammar, or even that you have to use good grammar when you are a member of Congress,” Breyer said.

Part of the issue for the justices is that Alaska is unique. Unlike in the lower 48 states, Alaska Native tribes aren’t situated on reservations. Instead, Native land is owned by ANCs created under a 1971 law. The for-profit corporations run oil, gas, mining and other enterprises. Alaska Natives own shares in the corporations, and the corporations provide a range of services, from health care and elder care to educational support and housing assistance.

Arguing for the federal government, Matthew Guarnieri told the justices that the “settled understanding for the last 45 years has been that ANCs are eligible to be treated as Indian tribes.” Doing differently would be a “dramatic departure from the status quo,” he said. A lower court’s decision in favor of the Native American tribes “threatens to shut ANCs out of a wide range of important federal programs,” he said.

Guarnieri acknowledged the language Congress used could have been clearer: “I’m not going to sit here and say that this is the best possible way to draft a statute,” Guarnieri said. Kagan replied: “Well, I think we can all agree on that.”

Alaska has more than 200 federally recognized tribes, but many are “small and remote, and not well-suited to distribute certain benefits,” the ANCs argue. Moreover, many Alaska Natives are not affiliated with recognized tribes, the corporations say.

After the CARES Act was passed, three groups of tribes sued to prevent payments to ANCs. They argue that, under the language of the law, only federally recognized tribes qualify for the aid and ANCs do not because they are not sovereign governments, as tribes are. A trial court ultimately disagreed, but a unanimous panel of the District of Columbia Circuit reversed the decision.

Both the Trump and Biden administrations agreed that the CARES Act makes the corporations eligible for the relief money. A decision in the case is expected by the end of June, when the court traditionally begins its summer break.