Posted by Michelle Miano.
As a firm that provides legal services to numerous Tribal governments impacted from COVID-19, we have kept a close eye on the $8 billion in emergency aid directed by Congress to be distributed to Tribal governments under the CARES Act.
Prior to the April 26, 2020 deadline, several Tribal governments initiated proceedings in D.C. federal court concerning the definition of “Tribal governments” as used in Title V of the CARES Act. The U.S. Secretary of the Treasury interpreted the CARES Act definition of “Tribal government” to include Alaska Native regional and village corporations formed pursuant to the Alaska Native Claims Settlement Act (ANCs), while Plaintiff Tribal governments and others challenged the inclusion of ANCs in Title V’s “Tribal government” definition.
On Monday, April 27, 2020, the D.C. court preliminarily enjoined the Secretary from immediately disbursing Title V funds to any ANC at this time, but did not direct the Secretary of the Treasury to disburse the entire $8 billion in emergency relief to Plaintiffs and other federally recognized tribes. The Court stated:
To be sure, the more limited remedy could mean that Plaintiffs will receive a lesser share of Title V funds in the short term, if the Secretary decides to award some money to ANCs and withholds those payments to comply with the court’s order. But at least such funds will remain available for later disbursement to federally recognized tribes for coronavirus-related public services, if the court ultimately enters a final judgment in Plaintiffs’ favor.
Since then, ANCs, such as Ahtna, Inc., and affiliated associations have sought to intervene arguing that the case has a direct interest in the resolution of legal issues raised by Plaintiffs.
Meanwhile, a coalition of Tribal governments filed a second lawsuit on April 30, 2020, seeking a declaration that the Secretary’s failure to disburse Title V funds violates the CARES Act and amounts to agency action unlawfully withheld or unreasonably delayed, and seeking to enjoin the Secretary of the Treasury to disburse the CARES Act funds in a manner consistent with the CARES Act and the D.C. court’s April 27, 2020 order.
On May 5, 2020, the Secretary of the Treasury announced that he would begin to distribute $4.8 billion of the total $8 billion in CARES Act emergency aid.
We will continue to monitor developments as they unfold. In the meantime, if you have any questions about this or other provisions of the CARES Act and how it may affect you, please contact our office.