U.S. judge says he’ll rule quickly on funding for tribes

Flagstaff, Ariz. • A federal judge in the nation’s capital said Friday he will work quickly to deliver a ruling in a case centered on who is eligible for coronavirus relief funding set aside for tribes.

U.S. District Judge Amit Mehta heard more than three hours of arguments in the case he characterized as challenging. He is deciding whether Alaska Native corporations, which are unique to the state, can receive a share of $8 billion in funding that Congress approved in March.

Numerous Native American tribes that sued the U.S. Treasury Department, which is tasked with doling out the money, say no.

Mehta earlier ruled to limit distribution to tribal governments while he took on the eligibility question.

The Treasury Department has sent $4.8 billion in payments to tribal governments based on federal population data population and has said it will start distributing the rest no later than Monday — well past the deadline set by Congress.

Attorneys in the hearing Friday picked apart the language included in the Coronavirus Aid, Relief and Economic Security Act and dissected the history of a federal law that gave tribes the ability to deliver services like health care, policing and housing to tribal members through federal contracts.

Attorneys representing the tribes said Congress intended the virus relief money to go to the 574 tribes that have a political relationship with the federal government. Because the corporations are not the recognized bodies of government for any tribe, they don't qualify, they argued.

“They are not in any scenario able to compete with tribal governments for finite resources,” said Natalie Landreth.

Riyaz Kanji said Alaska Native corporations do not satisfy a clause in the Indian Self Determination and Education Assistance Act to obtain federal contracts without authorization from the tribal governments themselves.

Department of Justice Attorney Jason Lynch disagreed and told Mehta that if the judge finds even one of dozens of regional and village corporations eligible for the funding, all must be deemed eligible.

Daniel Wolff, an attorney representing some of the corporations, pointed to one that he said delivers heath care to Alaska Natives in the Anchorage area with the blessing of Congress and without express approval from all village governments. That circumstance is rare.

“The sovereign tribal villages simply don't have the resources to get the job done" he said. “That's the job of ANCs, that's why ANCs were created."

In a related case Thursday, Mehta denied a request from a tribe in Kansas to halt further distribution of the funding for tribal nations.

The Prairie Band of Potawatomi Nation sued the Treasury Department earlier this month, alleging it was shortchanged in the agency's initial distribution of funding. The tribe, whose reservation is north of Topeka, said the Treasury Department should have relied on the tribe’s own enrollment data, rather than population data from the U.S. Department of Housing and Urban Development.

The HUD data showed the tribe had 883 citizens. The tribe argued it should have received $7.65 million dollars more based on its enrollment figure of more than 4,840.

The Treasury Department has said it used HUD data because it would correlate with the amount of money tribal governments have spent responding to the coronavirus pandemic. Tribal data doesn’t distinguish between members who live on and off reservations, the agency said.

Mehta said he had no jurisdiction over the matter because Congress gave the Treasury secretary discretion in how to distribute the funding.

“The CARES Act thus contains no ‘statutory reference point’ by which to judge the secretary’s decision to use HUD’s population data set, as opposed to some other,” Mehta wrote.

The judge also faulted the tribe for filing its lawsuit more than a month after the Treasury Department said it would use HUD data following a request for tribes to submit enrollment figures.

Carol Heckman, an attorney for the Prairie Band, said the tribe doesn’t use the HUD database and did not immediately understand the Treasury Department’s methodology. She said reports by Harvard researchers who dug into the HUD data showed the tribe it was underrepresented.