A federal government employee travels by boat from the Akiak Native Community in Alaska, one of the six tribes suing the Trump administration for a share of an $8 billion coronavirus relief fund. Photo: Alaska Region / U.S. Fish and Wildlife Service

Indian Country awaits decision on $8 billion in coronavirus relief money

With just days left before an $8 billion coronavirus relief fund is supposed to go out to Indian Country, the Trump administration has yet to decide how to distribute the much-needed money.

The Department of the Treasury has told tribes to expect their shares to be deposited into their bank accounts as soon as Friday. The agency is also under a Congressionally mandated deadline to get the funds out to tribal communities that have been forced to curtail daily services, shut down businesses that employ thousands and generate critical revenues and take significant and costly steps to keep their people safe during the worst public health crisis in decades.

"Without receiving the financial relief under the CARES Act Title V funding to tribal governments, Akiak Native Community is at risk of not being able to provide essential government services to its members and community as a result of COVID-19," Chief Mike Williams said in a sworn declaration filed in court around 5:45am Eastern on Monday morning.

But the impacts go beyond the ones Congress envisioned when it included the $8 billion in the bipartisan Coronavirus Aid, Relief, and Economic Security Act, also known as the CARES Act. Tribal leaders fear significant social and cultural detriments among their people unless they are able to find ways to address the upheaval created by the pandemic.

"The tribe feels the threat of their culture being lost given the following have all stopped with COVID-19 – church services, potlatches, elder lunch gatherings, healing circles, well gatherings, youth sports and activities," declared First Chief James Landlord of the Asa’carsarmiut Tribe, a remote community in Alaska where the primary mode of transportation is skiffs in the summer and snow machines in the winter. Air service, he noted, has been restricted, hindering shipments of medical and other supplies.

Treasury already heard a slew of similar stories when it participated in two COVID-19 tribal consultation calls with tribes on April 2 and April 9. With government officials well aware of the needs and of the pending deadline, participants said they were told by Daniel Kowalski, who serves as the counselor to Secretary Steve Mnuchin to expect a distribution method soon after the conclusion of the calls.

According to participants, Kowalski said the formula would be released during the week of April 13. But as tribes in the lower 48 united in unprecedented fashion to ensure the money was distributed solely to their governments, to the exclusion of Native corporations in Alaska, Treasury all of a sudden went quiet.

Indianz.Com Video: An Interview with Jonathan Nez and Chuck Hoskin Jr.

"Treasury ultimately makes the decision on participation in the Indian Country set-aside for the CARES Act," Chief Chuck Hoskin Jr. of the Cherokee Nation told Indianz.Com.

A status report filed in federal court on Monday indicates the uproar over the inclusion of Native for-profit corporations is tied to the internal deliberations. According to the document, which was submitted after discussions between the Department of Justice and six tribes -- including three in Alaska -- who are suing the Trump administration, Treasury has yet to resolve the policy dispute.

"Treasury represents that it has not yet reached a final decision on that question," the attorneys for the tribal plaintiffs and the federal defendants told the federal judge assigned to the case.

"Mindful of the impending statutory deadline to make payments from the Coronavirus Relief Fund, defendant is working with dispatch to arrive at a final decision, and will do so before any response is filed to plaintiffs’ motion," the status report continued, in reference to a motion filed early Monday morning, seeking to prevent any of the $8 billion from going to Native-owned corporations that are chartered under Alaska state law.

With the clock ticking, Judge Amit P. Mehta, who was nominated to the federal bench by Democratic former president Barack Obama, has scheduled a video conference hearing on Thursday -- a day before Treasury has said tribes can expect to see money in their accounts. He also told attorneys from Justice to submit their reply to the tribal motion for a temporary restraining order and preliminary injunction no later than 5pm on Wednesday.

"We have witnessed our fishing markets collapse, and we have attributed almost every resource of the tribal government to responding to the pandemic threat," President Amos T. Philemonoff of the Aleut Community of St. Paul Island, located in the middle of the Bering Sea, said in a declaration accompanying the motion.

"The impacts on our tribe, tribal members, and tribal community will be in the tens of millions as we charter planes, establish quarantine facilities, and deal with the sudden and severe economic dislocations created from this pandemic," Philemonoff added.

The tribal reply is due at noon on Thursday, a mere three hours before the hearing. And since the United States District Court for the District of Columbia is closed to the public as a result of the coronavirus, attorneys will be participating via video.

"Wow," one Indian Country observer said of the time sensitive legal drama. "They are creating suspense."

The public should be able listen to the proceeding. Instructions for telephone access can be found on the federal court's website.

Specific call in details for each courtroom are used for proceedings.. A court order issued on Wednesday morning directed inquiries to a court employee -- Indianz.Com will provide an update in the event these instructions change or if additional steps are required regarding public participation.

Alaska Native corporations are not parties to the lawsuit. But they have defended the ability to secure shares of the $8 billion coronavirus relief fund, citing immense needs of the kind the tribal leaders presented in their court declarations.

“We will hold consultations with YK Delta Tribes to determine how best to use any Tribal Relief Funding provided to Calista,” Calista Corporation President/CEO Andrew Guy said in a news release. “Additionally, Calista will seek to absorb managements costs so that as many dollars as possible reach the YK Delta communities. Calista’s sole focus in participating in the Tribal Relief Program is to benefit YK Delta people and communities and not Calista’s corporate finances.”

The CARES Act lawsuit was filed late in the evening on April 16, a day before "certification" forms were due to Treasury. Tribes had until 11:59pm Eastern on April 17 to submit sensitive information on their people, their employee base and their expenditures. They also had to supply bank account numbers in order to receive the shares promised to them.

But just hours before the deadline, a trove of tribal CARES Act data was leaked to the public. In addition to the dozens of federal employees -- at Treasury, at the Bureau of Indian Affairs and even the White House -- who had their eyes and hands on the information since the launch of the certification process on April 13, countless numbers of people across the country received copies of what had been submitted as of mid-day on April 17.

Tribes across the country have called for a federal investigation into the leak, calling it a breach of the trust and treaty responsibilities owed to their people. According to numerous Congressional statutes, presidential executive orders and court decisions -- meaning all three branches of the federal government -- the United States has taken on moral obligations of the highest responsibility and trust.

"The Southern Ute Indian Tribe has taken steps to make sure that its bank account is secure," Chairman Christine Sage said over the weekend. "But more importantly, the unlawful actions by one or more individuals at the federal government to leak this confidential information must be immediately investigated."

Treasury has not responded to repeated requests for comment about the data breach, including what steps are being taken to protect sensitive and confident tribal information that had to be submitted under threat of federal prosecution.

The Department of the Interior, the parent agency of the BIA, has defended the need for dozens of employees to see the tribal CARES Act information. According to an ongoing investigation by Indianz.Com, two people at the agency -- both of whom work for Assistant Secretary for Indian Affairs Tara Sweeney, whose role in the debacle is under fire across the lower 48 -- were the first to receive the data that eventually got into the public domain.

"In our consultation efforts with the Department of the Treasury regarding CARES Act funding, we have been asked to verify for accuracy some of the non-financial information submitted by tribes to Treasury, and we have not been provided any confidential banking information," a spokesperson for Interior said in a statement on Saturday, a day after the leak. When asked by Indianz.Com whether an investigation was underway into the breach, this person declined to answer.

The third person who was among the first to receive the data that leaked is Tyler Fish, the senior policy advisor and tribal liaison to President Donald Trump. The White House too has defended his need to see sensitive information about Indian nations and their financial situation.

"The Coronavirus response is an all-of-government approach, which includes the White House tribal liaison’s efforts to ensure timely guidance for tribal leaders to best support their needs in this unprecedented times, including ensuring followup with tribal leaders to submit information before key deadlines," the spokesperson told Indianz.Com on Sunday of Fish, who is of Muscogee (Creek) and Cherokee ancestry.

Tribes aren't the only ones concerned about the large numbers of people who have seen information that was submitted to a government website. Sen. Tom Udall (D-New Mexico), who helped sure the $8 billion coronavirus relief fund -- which is far less than the $20 billion a bipartisan group of lawmakers were pushing for -- said the Trump administration needs to be held accountable for the potentially "unlawful" leak.

“On Friday, my office was alerted to a potential breach by the Department of the Interior of Tribal data related to the CARES Act Coronavirus Relief Fund," Udall, the vice chairman of the Senate Committee on Indian Affairs, told Indianz.Com

"The administration, as a trustee, has a duty to be good steward of any resources Tribes place in its hands – including sensitive and proprietary information," added Udall, whose role as the senior Democrat on the Senate Appropriations Subcommittee on the Interior, Environment and Related Agencies was crucial to Indian Country being included in the CARES Act.

"I am deeply concerned that this breach may not only violate the Department’s trust responsibilities but also be unlawful," Udall concluded. "The Department’s actions related to receiving and maintaining this data should be closely scrutinized and anyone responsible for mishandling it should be held accountable.”

The $8 billion coronavirus relief fund isn't the only pot of money promised to Indian Country. In addition to the CARES Act, Congress approved billions in resources to tribes and to the federal agencies that serve them.

The money, however, has been slow to arrive, tribal leaders have said. The Navajo Nation, which has the largest number of COVID-19 cases and the most coronavirus related deaths in Indian Country, is among those eager for the government to fulfill its trust and treaty obligations.

"We know it's not a handout," President Jonathan Nez said on a virtual town hall on Tuesday. "It's our share of resources"

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