Confederated Tribes of the Chehalis Reservation v. Mnuchin

456 F.Supp.3d 152

CONFEDERATED TRIBES OF the CHEHALIS RESERVATION, et al., Plaintiffs,

v.Steven MNUCHIN, in his official capacity as Secretary of the Treasury, Defendant.

Cheyenne River Sioux Tribe, et al., Plaintiffs,

v.Steven Mnuchin, in his official capacity as Secretary of the Treasury, Defendant.

Ute Tribe of the Uintah and Ouray Reservation, Plaintiff,

v.Steven Mnuchin, in his official capacity as Secretary of the Treasury, Defendant.

Case No. 20-cv-01002 (APM)

Case No. 20-cv-01059 (APM)

Case No. 20-cv-01070 (APM)

United States District Court, District of Columbia.

Signed April 27, 2020

Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, MI, for Plaintiffs Confederated Tribes of the Chehalis Reservation, Tulalip Tribes, Houlton Band of Maliseet Indians, Asa'carsarmiut Tribe, Aleut Community of St. Paul Island, Pueblo of Picuris, California Elk Valley Rancheria, San Carlos Apache Tribe, Quinault Indian Nation.

William Kenneth Walker, Walker Reausaw, Washington, DC, Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, MI, for Plaintiff Akiak Native Community.

Paul W. Spruhan, Navajo Nation Department of Justice, Window Rock, AZ, Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, MI, for Plaintiff Navajo Nation.

Nicole E. Ducheneaux, Rose Michele Weckenmann, Pro Hac Vice, Big Fire Law & Policy Group LLP, Bellevue, NE, Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, MI, for Plaintiff Cheyenne River Sioux Tribe.

Jennifer Bear Eagle, Oglala Sioux Tribe, Pine Ridge, SD, Nicole E. Ducheneaux, Big Fire Law & Policy Group LLP, Bellevue, NE, Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, MI, for Plaintiff Oglala Sioux Tribe.

Matthew Newman, Pro Hac Vice, Megan Rachel Condon, Natalie A. Landreth, Wesley James Furlong, Native American Rights Fund, Anchorage, AK, Nicole E. Ducheneaux, Big Fire Law & Policy Group LLP, Bellevue, NE, Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, MI, for Plaintiff Rosebud Sioux Tribe.

Matthew Newman, Pro Hac Vice, Native American Rights Fund, Anchorage, AK, Nicole E. Ducheneaux, Big Fire Law & Policy Group LLP, Bellevue, NE, for Plaintiffs Nondalton Tribal Council, Artic Village Council, Native Village of Venetie Tribal Government.

Frances C. Bassett, Pro Hac Vice, Jeffrey S. Rasmussen, Pro Hac Vice, Jeremy J. Patterson, Pro Hac Vice, Patterson Earnhart Real Bird & Wilson LLP, Louisville, CO, Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, MI, Rollie Wilson, Patterson Earnhart Real Bird & Wilson LLP, Washington, DC, for Plaintiff Ute Tribe of the Uintah and Ouray Indian Reservation.

Jason C. Lynch, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

Amit P. Mehta, United States District Court Judge Under Title V of the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, Congress set aside $8 billion in emergency aid for "Tribal governments" to combat the coronavirus pandemic. This case concerns what it means to be a "Tribal government" for the purpose of receiving Title V funds.

Plaintiffs are a group of federally recognized tribes from the lower 48 states and Alaska. They unquestionably qualify to receive some portion of the emergency relief set aside under Title V of the CARES Act. What Plaintiffs fear, however, is that the Secretary of the Treasury, who Congress authorized to disburse the monies, is about to give away a significant percentage of the $8 billion to what are known as Alaska Native regional and village corporations, or ANCs. ANCs are for-profit corporations recognized under Alaska law that were established by Congress as part of the Alaska Native Claims Settlement Act. The Secretary of Treasury has announced that ANCs are eligible to receive Title V funds, although he has yet to identify which ANCs will receive funds or how much. The Secretary intends to disburse the funds tomorrow—April 28, 2020.

Plaintiffs ask this court to enjoin the Secretary from making Title V payments to ANCs. Their position is straightforward. Title V grants $8 billion in relief funds for "Tribal governments," which the CARES Act defines as "the recognized governing body of an Indian Tribe." In Plaintiffs’ view, ANCs do not meet the statutory definition of either "Indian Tribe" or "Tribal government." ANCs therefore are not eligible for Title V funds. Whether Plaintiffs’ or the Secretary's reading of Title V is the correct one is at the heart of the parties’ dispute.

Before the court are Plaintiffs’ motions for a temporary restraining order and preliminary injunction. Because the court finds that Plaintiffs have made a clear showing that they are likely to suffer irreparable harm in the absence of preliminary relief, that they are likely to succeed on the merits, and the balance of the equities and the public interest favor an injunction, the court grants Plaintiffs’ motions—but only in part. The court will preliminarily enjoin the Secretary from disbursing Title V funds to any ANC, but will not direct him at this time to disburse the entire $8 billion in emergency relief to Plaintiffs and other federally recognized tribes.

I.

A. Statutory Background

1. The CARES Act

Congress enacted the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), Pub. L. No. 116-136, 134 Stat. 281 (2020), to respond to the devastating impacts of the COVID-19 pandemic. Its provisions direct tailored relief to specific sectors of American society, including economic aid to small businesses and employment retention programs for workers (Title I); unemployment insurance and other financial support systems for workers, businesses, and families (Title II); pandemic response and healthcare funding (Title III); support for economically struggling businesses regardless of size (Title IV); relief funding for State, Tribal, and local governments (Title V); and supplemental appropriations for federal agencies and programs (Title VI).

Title V, the title relevant here, amends the Social Security Act ( 42 U.S.C. 301 et seq. ), and appropriates $150 billion for fiscal year 2020 for "payments to States, Tribal governments, and units of local government." 42 U.S.C. § 801(a)(1). Of that sum, $8 billion is "reserve[d] ... for making payments to Tribal governments." Id. § 801(a)(2)(B). The Act requires the Secretary of the United States Department of the Treasury ("Secretary") to disburse the Title V funds to Tribal governments "not later than 30 days after" March 26, 2020, the date of enactment of this section—that is, by April 26, 2020. Id. § 801(b)(1). The Act further instructs that the funds are intended:

to cover only those costs of the State, Tribal government, or unit of local government that – (1) are necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (COVID-19); (2) were not accounted for in the budget most recently approved as of the date of enactment of this section for the State or government; and (3) were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020.

Id. § 801(d).

For purposes of Title V funding, the CARES Act defines "Tribal government" as "the recognized governing body of an Indian tribe." Id. § 801(g)(5). The Act further provides that "[t]he term ‘Indian Tribe’ has the meaning given that term in [section 5304(e) of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 5304(e) ]." Id. § 801(g)(1). The Indian Self-Determination and Education Assistance Act in turn defines "Indian tribe" as "any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [ 43 U.S.C. 1601 et seq. ], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians." 25 U.S.C. § 5304(e).

2. The Alaska Native Claims Settlement Act

The Alaska Native Claims Settlement Act, enacted in 1971, Pub. L. No. 92–203, § 2(b), 85 Stat. 688, ("ANCSA") is "a comprehensive statute designed to settle all land claims by Alaska Natives," Alaska v. Native Vill. of Venetie Tribal Gov't , 522 U.S. 520, 523, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998). Among other things, ANCSA extinguished all aboriginal claims to Alaska land, and "[i]n return, Congress authorized the transfer of $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations that were to be formed pursuant to the statute; all of the shareholders of these corporations were required to be Alaska Natives." Id. at 524, 118 S.Ct. 948 (citing ANCSA, §§ 6, 8, 14 (codified at 43 U.S.C. §§ 1605, 1607, 1613 )). The transfer of reservation lands to private, state-chartered Native corporations, or ANCs, was "without any restraints on alienation or significant use restrictions," because Congress intended to avoid " ‘any permanent racially defined institutions, rights, privileges, or obligations.’ " Id. at 532–33, 118 S.Ct. 948 (citing ANCSA, §§ 2b, 8, 14). "By ANCSA's very design, Native corporations can immediately convey former reservation lands to non-Natives, and such corporations are not restricted to using those lands for Indian purposes." Id. at 533, 118 S.Ct. 948.

Today, ANCs continue to own approximately 44 million acres of land. RESOURCE DEVELOPMENT COUNCIL , Alaska Native Corporations , https://www.akrdc.org/alaska-native-corporations (last visited Apr. 25, 2020) [hereinafter Res. Dev. Council]. The ANCs’ "landholdings are equivalent to the total trust land base of all federally recognized Tribal governments in the Lower-48 states combined." First Am. Compl. for Declaratory and Inj. Relief, No. 20-cv-1059, ECF No. 14 [hereinafter Cheyenne River Am. Compl.], at 22. In fiscal year 2017, ANCs had a combined revenue of $9.1 billion, and the twelve regional ANCs have over 138,000 shareholders and employ more than 43,000 people worldwide. See ...