'We waited for weeks': Tribal governments in line for additional coronavirus relief

May 12, 2020
In The News

As tribal nations continue to fight for the $8 billion coronavirus relief fund promised to them more than a month ago, Democrats in Congress are making good on pledges to provide more resources to the first Americans.
Introduced on Tuesday, the Health and Economic Recovery Omnibus Emergency Solutions Act, includes another $20 billion for tribal governments. Key lawmakers said the measure will bring much-needed relief to communities that have been on the front lines of the worst public health crisis in decades.
"This bill must pass - and SOON - for Congress to live up to its trust responsibility," said Rep. Ruben Gallego (D-Arizona), the chairman of the House Subcommittee for Indigenous Peoples of the United States.
The $20 billion is the amount Democrats and some Republicans sought during negotiations of the last COVID-19 package. The number got whittled down to $8 billion in the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act.
"I wanted more, and I want more in the next bill," Rep. Nancy Pelosi (D-California), the Speaker of the U.S. House of Representatives, asserted last month.
But with the $8 billion still tied up in litigation and red tape in Washington, Democrats are seeking to provide more direction to the Trump administration, whose handling of the fund is being investigated by government watchdogs. The new bill, also known as the HEROES Act, addresses some major policy issues that diverted Indian Country's attention at the worst possible time, with the coronavirus leading to positive cases and even deaths at high rates in some tribal communities.
"Now, everybody's looking at the Navajo Nation as a major hot spot in America," President Jonathan Nez said during a town hall on Tuesday morning.
Nez, who had to self-quarantine for two weeks last month after coming into contact with a first responder with COVID-19, said the tribe has "aggressively" engaged in testing. So far, 8.5 percent of the population has been tested for the coronavirus, a rate far higher than even that of the United States.
"If you look at the deaths here, 102 deaths, that's one way too many," added Nez.
The Navajo Nation is part of an ongoing court case in which the Trump administration's decision to distribute shares of the $8 billion to Alaska Native corporations is being challenged. A federal judge has temporarily barred the Department of the Treasury from sending out the money to the for-profit entities pending resolution of the litigation.
The HEROES Act settles the matter. Section 19130 states that "only Federally recognized Tribal Governments are eligible for payments from the Coronavirus Relief Fund."
In case the language isn't clear enough, H.R.6800 further states that an eligible entity must be included on the list of federally recognized tribes published every year by the Bureau of Indian Affairs. Alaska Native corporations aren't on it.
And should Alaska Native corporations end up receiving any of the $8 billion from the CARES Act, the bill requires them to return their shares to the U.S. government. Treasury would then reallocate those funds to tribal governments if the measure become law.
"We're holding the Trump administration accountable for the blatant mismanaging of funding included for tribes," Rep. Deb Haaland (D-New Mexico) said on a live broadcast hosted by The Appeal. "It was clear they attempted to put corporations ahead of sovereign governments, and that delayed the funding."
Additionally, the HEROES Act provides critical guidance on the coronavirus relief fund. It states that tribes can use the money to "replace lost, delayed, or decreased revenues, stemming from the public health emergency with respect to the coronavirus disease (COVID– 19)"
"State, local, and tribal need the flexibility and spend the money where it's needed most," Haaland, is one of the first two Native women in Congress, told The Appeal.
"And we need to make it easier to access the money," added Haaland, who is the first Native person to serve as vice chair of the House Committee on Natural Resources.
But while tribes and their advocates are reacting favorably to the introduction of the HEROES Act, the 1815-page package must overcome some major hurdles before additional funds flow to Indian Country. At this point, only Democrats are backing the bill, which isn't much of an issue since their party controls the U.S. House of Representatives.
It's a much bigger problem in the Republican-controlled U.S. Senate, where there is less of an urgency to act on yet another relief bill -- which would be the fifth since the official start of the pandemic. Though the chamber is in session, leaders aren't planning on moving forward without President Donald Trump on board.
“I’m in constant communication with the White House and if we decide to go forward we’ll go forward together,” Sen. Mitch McConnell (R-Kentucky), the Republican Senate Majority Leader, told reporters on Capitol Hill on Monday.
“We have not yet felt the urgency of acting immediately," McConnell added. "That time could develop, but I don’t think it has yet.”
But on Tuesday, McConnell said Republicans in the Senate are indeed working on a coronavirus bill. He said it would focus on "COVID-related liability reforms to foster economic recovery" in light of concerns that businesses might be sued for reopening their operations.
"We are going to provide certainty," McConnell said on social media. "If we want American workers to clock back in, we need employers to know they will not be left to drown in opportunistic litigation."
The partisan disagreements will lead to further delays for tribal nations, which were the last to be paid out of the $150 billion provided by the CARES Act more than a month ago. Though the law directed Treasury to distribute the money "not later than 30" days after it became law on March 27, Treasury only met the deadline for the $142 billion set aside for states and local governments.
It wasn't until Trump was on his way to a roundtable with tribal leaders on May 5 did Treasury announce plans to distribute the $8 billion promised to Indian nations. And only $4.8 billion is going out at this time.
"We waited for weeks," President Nez said from the largest reservation in the United States on Tuesday.
"We had to take the federal government to t court to make sure we get our just share of resources to the Navajo Nation," Nez added.
Alaska Native corporations (ANCs) are waiting too. Though Treasury determined that they qualify for shares of the $8 billion, their payments are being withheld pending resolution of the court case even though they have been affected by the pandemic just like the rest of America.
"By federal law ANCs are required to provide for the economic, cultural and social wellbeing of our 140,000 shareholders," the Alaska Native Village Corporation Association (ANVCA) and the ANCSA Regional Association (ARA) said in a joint statement on Tuesday. "Just in the past few months, ANCs have invested more than $2 million for COVID-19 relief in our communities.
Together, the organizations represent 13 Alaska Native regional corporations and more than 200 village entities. They decried the "shortsighted section" of the HEROES Act which would deny them financial resources were the bill to become law.
"This will strip critical COVID-19 response and relief funding from Alaska Native communities," the organizations said. "We look forward to an improved bill that will help all Alaska Native people."
According to a Department of Justice attorney, Treasury is withholding about $162.3 million from Alaska Native corporations as result of a preliminary injunction entered into federal court on April 27. The number hasn't been updated since a hearing on Friday in a related CARES Act case.
"Disallowing ANCs from receiving CARES Act aid will exclude thousands of ANC shareholders who are not enrolled in tribes from this crucial support," ANVCA and ARA said in their statement. "We implore our lower 48 tribal partners: it is time to stop efforts that divide us. We must work together to fight this global pandemic."
Separate from the for-profit entities, Alaska is home to more than 220 tribal governments. They are receiving shares of the coronavirus relief fund -- though their amounts have been reported as being far lower than those set aside for the corporations.
Of the $38 million that went out on Friday, the bulk was for tribes in Alaska, government attorney Jason Lynch said during a court teleconference. No additional funds went out on Monday, according to the Daily Treasury Statement from May 11.
Tribes in the 49th state also had to wait even longer for their CARES Act aid. While Indian nations in the lower 48 began receiving payments on May 5, Lynch said "payment issues" prevented those in Alaska from getting paid until Friday.
As part of the related CARES Act case, tribes sought the "immediate" distribution of the entire $8 billion in coronavirus relief. A federal judge denied the request on Monday, saying Treasury's weeks-long delay in distributing a portion of the fund -- $4.8 billion accounts for 60 percent -- did not rise to the right standard.
"'Egregious' delay is the governing standard, and the Secretary is not there quite yet, even in the midst of a public health crisis," Judge Amit P. Mehta wrote in reference to Secretary of the Treasury Steve Mnuchin, the defendant in Agua Caliente Band of Cahuilla Indians v. Mnuchin.
Mehta also said he was concerned about Treasury's plans for the remaining 40 percent. Tribal leaders were told last week that it could take up to two more months for them to see the rest of the money they were promised.
"The months-long delay," Mehta wrote in acknowledging that Treasury's conduct might eventually rise to the "egregious" standard, "will not be acceptable."
Despite the setback, the tribal plaintiffs said their lawsuit achieved two major goals. Like the judge, they plan to keep a close eye on Treasury during the next steps of the drawn-out CARES Act process.
"First, it forced Treasury to finally, albeit belatedly, release the first 60% of the $8 billion that Congress appropriated for Tribal governments," the plaintiffs said in a statement on Monday. "Second, Judge Mehta’s order makes crystal clear that Treasury will have to significantly accelerate its timeline for releasing the remaining 40% of the funding."
The plaintiffs in Agua Caliente, which focuses on distributing the entire $8 billion, are:
• Agua Caliente Band of Cahuilla Indians (California)
• Ak-Chin Indian Community (Arizona)
• Arapaho Tribe of the Wind River Reservation (Wyoming)
• Cherokee Nation (Oklahoma)
• Chickasaw Nation (Oklahoma)
• Choctaw Nation (Oklahoma)
• Snoqualmie Tribe (Washington)
• Yurok Tribe (California)
The first CARES Act lawsuit that hit the court docket was Confederated Tribes of the Chehalis Reservation v. Mnuchin which focuses on the Alaska Native corporation issue. The plaintiffs are:
• Confederated Tribes of the Chehalis Reservation (Washington)
• Tulalip Tribes (Washington)
• Houlton Band of Maliseet Indians (Maine)
• Akiak Native Community (Alaska)
• Asa’carsarmiut Tribe (Alaska)
• Aleut Community of St. Paul Island (Alaska)
• Navajo Nation (Arizona, New Mexico, Utah)
• Quinault Nation (Washington)
• Pueblo of Picuris (New Mexico)
• Elk Valley Rancheria (California)
• San Carlos Apache Tribe (Arizona)
Chehalis has been consolidated with two similar CARES Act complaints. The plaintiffs in Cheyenne River Sioux Tribe v. Mnuchin are:
• Cheyenne River Sioux Tribe (South Dakota)
• Rosebud Sioux Tribe (South Dakota)
• Oglala Sioux Tribe (South Dakota)
• Nondalton Tribal Council (Alaska)
• Native Village of Venetie (Alaska)
• Arctic Village Council (Alaska)
The final CARES Act case is Ute Indian Tribe of the Uintah and Ouray Indian Reservation v. Mnuchin. The sole plaintiff is the Ute Indian Tribe, based in Utah.
Judge Metha is assigned to all of the lawsuits. He issued a preliminary injunction on April 27, temporarily barring the Trump administration from distributing any of the $8 billion to Alaska Native corporations.
A final ruling, however, has not been reached in the case. The Trump administration also has not decided whether to appeal.